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Full text of "reports of cases in law and equity"

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J 



Oa . 100 
33 




REPORTS 




OF 



CASES IN LAW AND EQUITY, 



ABGUED AND DETERMINED 



nr TH8 



SUPREME COUBT OF TH£ STATE OF 6E0B6IA, 

FROM COLUICBUS TERM TO CA8SVILLB TERM, 1855 

INCLUSIVE. 



THOS. B. B. COBB, BEPOBTEB. 



VOL. xm ^^ 



ATHENS, \j4. 
REYNOLDS 

1856. 



fmo:^'^'' ^^^^ 



t Aijrffr'g.'ii 




■*«4a 



1*^ 



Biit4f6d According to the Act of Oongress, in the year 1866, by THOMAS K. 
' R. COBB, in the Clerk's Office of the District Court of the Northern Dis^ 
trict of Georgia. 



JUDGES OF THE SUFBEME COUKT. • 

Hoi^. JOSEPH H. LUMPKIN, Athens, 
Eon. EBENEZEB STABNES, Augusta. 
Hon. henry L. BENNING, ColumbuB. 
THOS. R. R. COBB, Reporteb, Athens. 
ROBERT E. MARTIN, Clebe, MiUedgeviUe. 



JUDGES OF THE SUPERIOR COURTS, 

PRESIDING DURINO THE PERIOD OP THESE BEPORTa 



Eastern District, Hon. Wm. B. Flbiosg, Sayannalu 

IGddle District, Hon. William W. Holt, Augusta. 

Northern District, Hon.GARNSTT Andrews, Washington. 

Western District, Hon. Jambs Jackson, Monroe. 

Ocmolgee District, Hon. Robert Y. HARDBMAN,Clinton. 

Southern District, Hon. P. £. Lovb, Thomasville. 

flint District, Hon. Jas. H. Starke, Griffin. 

Coweta District, Hon. 0. A. Bull, LaGrange. 

Chattahoochee District, Hon. M. J. Crawford, Colnmbiis. 

Ch^ofcee Dis^ct, Hon. Turner H. Trippe, Cassyille^ 

BoBthvestem District, Hon. W. C. Perkins, Cuthbert 

Macon District, Hon. A. P. Powers, Macon. 

Blue Ridge Eistrict, Hon. David Irwin, Marietta. 



Iff 



TABLE OF CASES. 

Arranged in tbe order of their Decision, witb a Note ef the 

Questltfis of Ltw eoQsidered. 



*i ■ 



COLUMBUS— January Term, 1856. 
1. D. Thointon ^ al. V9» D. Higbtower. Equity Prae^ 

ties .,..^^.* ^ «••«« *• 1 

2* T. H. Everett et al. ex'rs, V9. G. W. Towns. Sped- 

fie Perf(»rmance^. ; ,..,.,•...,.•« 16 

8» E. B. Toung, assignee, v%. J. Harrison and anotbei^ 

adm'rSr Meamre a^ Damages , 80 

4* E. Molynenx et al. vi. Geo. W. Collier, SatitfaC' 

turn. Equiig JurUdiction 46 

5. A« McDongald et al. vs^ W. A,. T. Maddox and Wife. 
Muttifariousnese. Diseovery 62 

6. W. F. Hamrick et al. vs. J. R. Boose et al. Cornti' 
ttUumal Law. County Sits 56 

7. W. "Q. Dinkins et al. vs. T. Moore et al. Aitestatian 

of Deed '. 62 

8. Creamer & Graham vs. H. Shannon. Proof of Booh 
Account 65 

9. W. Brady t^. Hardeman & Hamilton. Ejfed of want 

of Process 67 

10. Watkina, Chappell & Co. vs. S. A. Smith. Mitno- 

mer in Appeal. Attorney. Witness 68 

11* L. Dunn. vs. J. Crosier, adm'r. Brief of Hvidenee* 70 
1%. D. Cnrry vs. J. P. Gaulden et al. Miring of Slaves. 72 
1^ Jl^mes A. Hannahan vs. James W. Nichols. Ne ex^ 

eat regno , >... '77 

14. W. A. Bawson vs, W. B. Cochi:an. famishment. 
Partners t 80 

15. J. L. Williams ^ al. vs. A. A. Alleu, ex'r. Deed of 

Tru^. Eusband and Wife. Mistake 81 



TABLE OF GASES. 

16. H. Shannon v$. Rooseyelt, Byde k Clark. Oa. Sa. • 
Bond. Appe^ranee 88 

17. T. S. Toggle, adm'r, vs. 8. Wilkinson. PUading. 

Act (^ 1847 ©0 

18. J. S. Miller vs. 1. J. Saadars et al. Sufieiency of 
Answer 92 

19. B. F. Oriffin vs. The Jaaticee, &e. New Trial . 
JStatofLim • •^. ^ 96 

20. The Lesgee of Yeasey vs. Graham et tU. Trustees. 
Deed of Bank. Notice 99 

21. J. G. Tompkms vs. Y. P- Tigner. Stre of Slaves. 105 

22. B. F. White vs. J. T. W^ilen. FractO^e Superior 

Court. New Trial ,.; ^ !♦& 

28. J. B. Griffin v^. M. J. Stamper and another. Forged 
Bond. Stat, of Idm '. 108 

24. J. M. Mahone vs. The Central Bank. BiU of Ex- 
cTiange. Stat. ofLim .* Ill 

25. W. C. Osborne vs. The Ordinary^ &c. for nse Roht. 
E. Huej. iJ^ity Jurisdiction in Suits on Ohusr^ 
dian'sBond 128 

26. T. 0. Walker et al. vs. E. Cook. Amendment 126 

27. Jas. L. Hester w. The State. Oriminal Law..T... 130 

28. Jame^ Branan vs. P. J. May. Obstruction of BXgh- 
way 136 

29. J. D. Roseberry vs. C. Roseberry. Temporary Al- 
imony - 189 

30. R. J. Snelling vs. S. Darrell. Amending Motion 
for New Trial 141 

31. J. Mercer vs. The State. Jury. Drunkenness. 

Verdict 146 

32. W. D. Shockley vs. G. 0. Davis et cd. AUachmegfe ' 
Bond 175 

33. W. D. Shockley vs. G. 0. Da^s et al. Specific Per- 

' formance 177 

34. J. Johnson, Ordinary, &c. vs. The Gov. ex ret &c. 
Poor School Fund ". : 179 

85. A. E. McDougald, adm'x, vs. Ed. Carey, assignee. 
Practice as to Sei. Fa 186 



TABLE OF CASES. ZL 

1 

86. C Kellogg k Go. V8. Bnekler & Short ei ah Dor-- 
mant Judgment. Alias Fi, Fa. Ruling Sheriff... 187 

87. The Ceatral Bank vs. W. Williams, adm'r. Dor- 
mant Judgments * 198 

88. J. T. Boyd vs. The State. Killing an O^er. 
Practice 194 

39. J.,L. Terry M. The State. Refusal to Charge. 
New Trial... : 204 

40. A. J. Robison vs. Johii Bants. Fees of Witnesses. 
Subpama * 211 

41. P. A. Clayton vs* D* Brorw^i. Fraudulent Convey- 
ances V 217 

42. W. V. Bumey vs. A. Spear and another. Trusts 
and Trustees , 228 

43. B. 0. Keaton et al. vs. The Gov. for th/s itse^ &c. 
New Trial '. , .|. 228 

44. W. A. Bedd et al. vs. D. Clopton et al. Distribu- 
tion. Cousins 280 

45. H. McGlawn, adm'r, vs. D. McGlawn. Testamen- 
tary Papers 284 

MACO^—Februartf Term, 1855. 

46. G. R. Hnnter, admV, &c. vs. J. Stembridge et al. 
Ratification of Contract 248 

47. P. B. Cox vs. The Mayor, &c. Griffin. JEquitg Plead- 
ing. Practice * /.... 249 

48. J. Knight, pr(K ami, ke. vs. B. Y. Hardeman ct al. 
Manumission. Free Persons of Color 258 

49. D. C« Gresham, Ordinary, vs. K Pyren. Mandam- 

ns. Temporary Letters 268 

50. C. 1\ Welbom vs. W. W. Weaver et al Lim. tf 
Actions. Testamentary Papers. Escrow 267 

51; W. J. Rossell vs. E. Slayton. Dispossessing Claim' 
m^ 27T 

52. a. W. Hollifiekl, adm'r, et al. vs. John D. Stell. 
Con$trwti§n of Wills. Estate TaU 280 

-58. Charlea Clements vs. W. P. Makmey, adm'r. Oo9ts 
vs.AdmW 289 



TABLE OF CASES. 



54. M. Sbarp ve. The State. Retailing vntkout Liaense 290 
65. Jas. 0. i^odges vs. Myers, Sujdam & Co. Hule V9^ . 
Sheriff. .: * ^..292 

56. B. W. Woods, ex'r, vs. Woods et al. Surrender In- 
solvent Debtorhy Securities , - 298 

67; J. Downs and another vs. G. Vonge, Supt. &c. Deed, 

valid orvoii', ..4...*..' 296 

58. C. Lewis vs. Allen & Leak. Admissions of Partners 3(J0 

59. W. Woods and another vs. MeGuire*s Children. 
Ejectment. Examination Witnesses .\..*.. 303 

60. R. Redding and another vs. The Oentr;al Jl. R. & 

B'k'g Co. Constitutional Law., ^. * 323 

61. M. t>. Baraea rs.^E. L*^ Strohecker. Covenants: 
Practice : ^ 1 340 

62. Freeman v&Ponlson, vs. Oarhart Bros. & Co. ' Part^ , 

^ership. Justice* s Court.,., \ ».l 348 

63. R. Corry, adm'r, kc^ vs.' N. Tompkins, Charge of • 

the Court ..» '.... 351 

64. N. Tompkins vs. The State. Criminal Lc^w and 

, Practice , #..^ 356 

65. W. Woods and another vs. McGuire*s Children. 

Verdict , ; ^ 361 

66. C. Walker, exV, vs. W. Hunter et al. Wilis, New ' 

Trial: ...^ 364 

67. W. Mitohell vs. L. Pyron. * Service i» Cowt ef, Or^ 

dinary. Appeal ^ , .-.......: 416 

68. J. J* Wright vs. W. B. Greenwood & Co. Nelo'Trial 418 

69. W. Johnson, admV, vst L. Worthey. Witness, . Ev- 

idence ,. .^ 490 

70. J. A. Wade^^ al. vs. James A. Ri^ssell. Separate 

Estate., ...^ V. ...,.., :.. 435 

71. J. \L GUmer, assignee, vs. Warren fe Scarborougb. 

Certiorari. Judgment... t* ,....«...»,w •426 

72. S. F. Miller et al. vs. Conklin & Co. Fraudpl^ 

A99i(}i\ment>, ' ,.; ...«•• 439 

73. Ciiusoy k Oslia vs. J. A. Miller. New 2Waf- 435 

74. L. VV. Cooper vs. The State. ' Sci. Fa. vs^ DmA 437 

75. Ciias. Dacey r^.The State. Criminal Lifw-.^ 430 



TABLE OF CASES. xni. 

76. J. Pryor and another vs. M. Coggin et oL Charge 

of Court 444 

77. A. Reev^ m. R. W. Matthews. Witness. Estoy 
pel • 449 

78. J. J. Strawbridgo t*. 11. T. Mann et al Dormarit 
Judgment..^. * 454 

79. C. Phillips r«. The State. Forgery 45Sl 

80. W. T. Smith rt. The State. Practice 462 

81. D. E. Hajnes vs. The State. Homicide 465, 

82. J. D. Clark and another vs. C Clark et al. Con- 
^ructioii of Witt 485 

CASSVILLE— Jl/jf rt 2Vm, 1855. 

&9. Q. H. Goml) vy. J. Turner, Sr. et al, Ej^atment. 
Lessors .^ .....* 489 

84. W. L. Hammond vs. Jas. M. Stovall. lAen of judg- 
ment on property removed..... 491 

86. E. Woods vs. A. HowelL Abatement of Action. 
Scire Facias » '. 495 

86. Z. McQidSe vs» The State. Criminal Law. Jury. 497 

87. W. F. Janes vs. The Trustees of Meroer TTniversity. 
Witness. Contract .*.. 616 

88. J. Taylor $t al. vs. Johnson, Gov* &c. Sheriff's 
Bond. LiahilUyy ^.c 621 

89. W. Kinsey et al. vs. The Lessee of 36nsboagh, — 
JEjectmjent. Demises 640 

90. J. RJMatthewes'^ al.vs. J. R. Stanford e< al. Cor- 
porator's liability 648 

91. D. A* Walker, guar. vs. A. J. Wells. Mi^kes in 
Grant / 647 

92. T. Allan vs. Comstook & Bro. Parol evidence to 
vHry Contract 554 

93. J. J. Printnp vk. D. R. Mitch^. Specific Perform- 
once. • Evidence 558 

94. Baker, Wilcox & Co. vs. R. Hemdon. Statute of 
Frauds 568 

95. H, Bass vs. A« Stevens. Plea to Jurisdiction 672 



\ 



3EIV. TABLE OF CASES. 

t 

96. D. B« Mitchell V9. The Rome B. tl* & S. Co. Stoeh^ 

, holder. Inability ..- 674 

97. T. Waters M. Greenway Bros. & Oo. AUomey*B 
Lien *.. a 692 

98. B. J. Johnson t^. D.'B. Mitchell. LieTis ofJudg- 
menU.^ .'. •^. ........ ...... 593 

99. J. Norwood m. L. Hardy et al. Commission ^ 
Lunacy 595 

100. J« Rogers vs. W. i^blomonS| et al. adm'rs* Supple* 
mental Bills '. .^ ,»...• 698 

IOL J. A. Paxson vs, A. P. Bailey and aooth^r* Ad- 
verse Possessors ,....!.....'......... 600 

102, J. Kerley vs. E. II. ^ichar<iw)n. Damages /or 
breach of Bond................ .........,..:.. 609 

103. J;S. Swift vs. T. Grow, bamotges* Penalty 609 

V 104. Thfi ^taie ex rsl. ^. vs. W. Woody etaV * County 

$&e 612 

106.P Jas. Selman & Oo. vs. 8. M. Shackelford* Claim. 
V Certiorari...*.* 616 

106. J, G. McAllister vs. The State. Demand for Trial. 618 

107. J. T. Tucker et al. i«. A. Shorter et al. ' Public 
Agents. Licdnlity 620 

108. Shropshire & Hawking vs. J. A. Stevensoti. JEze- 
cMtion of Interrogatories « 622 

109. B. T. Dohbs and another vs. The Justices, jtc. A^ 
ta^hments. Sheriff*s Liability.. ; ,^,. 684 



I 



« 



tABLE OP CASES HEPOKTED IN THIS VOLUME, 



ALPHAB£;TigALL.V ABIiANiBfrKJX 



A. 



Downj and another cr. Yonge, 6a* 



Abbott, rtlator, Jokuson, Ordinarj, pcrintendent, ^ S05 

r«. , HO Ihinnvs. Crozier, adm'r 7d 

AUen, err, Williams et al. ts 8}| E. 

Allen k Leak, Lewis »«...; 300 Everett et al. ex'rs, w. Towns l5 

Allen M. Comaiock k Dro.. 504! ' , F. 

B. . I Freeman 4 Benson if9. Cailiftrt 

BftHey^ Pa»on r* 6<)0i Broai^Co , 348 

Baker, Wilcox k Co. vt. Hefndon..668, . ' G. 

Baaks, R©bisoa rs..* *.- 2ll'rfauklon et (i/. Curry t»# 72 

Banits 9f. ^rohscker j 34o!oiUiier v». Warren hnd anotber 426 

Bas* *8. i^tepb^na et pi *.i»73|(fra'Uam W o/. 'Vease^r p*. .^ 99 

hard V9, The'State V 11« (;recBwood& Co. Wright f^....'.....418 

Brady iw. Hardeman k Haaiiltoii 07 Green way Bro's ACo. Watcfs W...592 

Eranan vg. May „..,.. "....»;. 1 S( ". IJ reeham t'«. Pyron... „*,..; .....;. 2U3 

Brown, Clayton u«....\. .'...... 217 (Iriflin vs. Stamper and abot4ier.....l08 

Buckler k Short, Kcllogg^fc Co, v».iaf Griffin et al. vs. The Justices, &c 96 

Burneyxa. Speer aid another 223| H. 

C. • Hammonil v«. StovnJI ,491 

Carey, assignee, Mcl^ougftld, adm':r, Unmrick etui. m. Rouse et al 56 

rJT : k ,^...1€;» ilaniiubau tvr. Nitliols 77 

Carbart Bro'f k Co., Frtemau k MiirdexnAti ef aI.Kn\f;\ii, pro.ami V8.2b3 

Benson v« *.„...i....k..,.»...34fi Hurdeman k Uamiltoi!, Brady tf 67 

€a«fty&l>sUn «<.*MilIer.f »4^5 llnrdy, Norwood vg. ;.....595 

Clark vs. Clark.. ...«...% .*..... ..48ft. Harrison, adm'r, Yoiige, assignee, rj?.30 

Cla^aou r*. Brown 217^Hayne8 u«. Tbe State 465 

Clopton et4L!. Redd et alt r». 23()iHerndon, Baker, Wilcox & Cft. v^..668 

Clements tw. Makrtiey....v .....289;Heste^ w. TKe State 130 

"tJocbran et al. Rawson ts 8f),Hightow«r, Thornton et al. vx 1 

Cook» Walker e* al. p#t..^. .....; 126 Hodges vi. Myers, Snydam k Co.. ..292 

Collier, Molynuuxui ....i ,4r»'Hollifield, adm'r, ejl ai. vs. Stell 280 

Comstock & Brn. AUen r*/. *».. 65-1 iHowcil, Wood i^ 495 

-Coukli* &X)a MUlcr et ai. ts 430;llunter et al. Walker, ex'r, vs..\ 364 

(hooper vs. THo State. 437:Hiiuter, adin'r^ &c. w. Stembridge.JJ43 

Corrv, adm'r, w. Tftmpjfciafc^* 3611 . J. 

f/«uChi'<. Turner. e^ al 48i'!Janc3 vi. The TrMtaes of Mercer 

Cox M. The Mayor, Ac. Gri$n.* 24P| University.^ 515 

Oreau»fir& Grabetm tvf Slianoon. Goijohnaon vs. Mitchell 593 

^row, Swift v« fc...4,* :600johnson, adm'r, Ac. r*. Worthy 420 

4Brozidr, adi^',r Dunn vs.. TO Johnson, Ordinary, AlbbMt, relfctor, 



Cuny v;. G^oiden el ai ;..., 72 

D. 

Dac«^»«u The.6tate .« 439 

JJiprell, SneUing8,u» .....141 

Dtvis and amolber tx The Oetrtral 

E. R. A;B'k*Oo/..j,,...... .323 

Davia et aL Shgckley ra. „ 17.% 

Davis e^al. Shockley ««. ^.A*l1 

Dbikins v«. Moore # a^. <«.•.%... ^.02 

D«bbs etal. v». The .lanfces, Jtc....624 



vs , * 179 

K. 
Kcaton a aL vs. The Gov. ftwr "the 
use, ko 228 

l^ellogg k Co. Bucklet * Sb©rt tf^..l87 

Kftrky vs. Richiu-ftwn....../ 662 

Kii>sey «*.' SensboUffh » 540 

Knight, oro. ami vs. Hardeman d a2.253 

L. -^ 
Lewis vs. Anen &Lcak 306 



Tt. 



TABLE OF CASE&. 



IL tSen9b<mflb) Kinsey ««.... ^...•. &i^ 

Maddox aid Wi(e» McDbogald <^«^ . {ShWckelmd) S(»liiiaa ^ Co. v9.....,.615 

vt ^..^ r.52 Shannon, Creamer k Grabam «v*...^65 

Hahone oj^ The Central Bank....... Ill Shannon ««. ik>osevdt| Hj^(^e Ji; • 

Maloneji adm'r, Clements vm ...289; Clark «. 88 

Mann et aL Strairbridge tv ^4 Sharp V4. fhe State/. r.2£re 

Matthews, Reerea »».,...* 449Sh(K;klej w*. Dhn-Is et al ,....17§ 

Matthews it al. v't. Stanford tt a/.,543 ShockLej vs. D^vvis ei al .l?? 

Maj, Brannan vm #....». l36'Shorter et al. Tticker et tU. vs 620 

McAllister vs. The State G18 Shropshire A Hawkins ts. Stercn- 

l^cDougatd a al^ v€. Haddoz and | son .• , 622 

Wife .„. ..;. 52 slajlon, Bussdl m..^ .....^ 277 

McDougald, adqx'jc, tv. Carej, as- Smith, Wat^ins, ChappellA Co. v#...66 

signee.v ♦....^ 185 Smiths. The State ; «.462 

McGuirc'a'Cfaildren, Woods t><<.....361,SnolUng8 va. Darrell...^^ Ul 

McGuire's- Children, Woods r« 303 Solomons, Rogers t>«... .........598 

McGlawn Vs, McGlawn.. .«*».. .♦•.*.. 234 Speer and'another, Bar;iey vs 223 

McOuffie 1^. The State. w^..i.«.497 ;:^«aQlper ^d another, GUiAtty9....10tf 

McRorey et al. Pryor et aL v«. 444|StaBfi(H*d el ^l. Matthews et (iC '«•... .^43 

Mercer r«. The State.*...*. y,.«.......140^Stembridge ^ al. Hunter, adm>, ««.J4^ 

MUlor, Cansaji^ OsHa v« «...43ij!Siell, HoUifitld,' ndm'r, ti of. i^.»..280 

Miller et ul. ft. Conklin ^ Co#..».««43olStevans et al. Baas t»^vA.....^...'*..57d' 

Miller M. Saanden ^ al. ,.92iStevens<ni, Shropshire k Hawkias.^122 

Mitchell m. Pyron..*^ ..„..Ul6!Stovjdl, Uammoud w *.*..... «.«491 

MkchelL Prialup m :,.k ^.^6^iStrawbr!dget;«. Maen M oL, 4&4 

ilitcbc^M, The Sobm Bi>b &..&. ft IStrohecker, Bdrn«a*0 ,........,34» 

». Oo- w.... : 574fiwtft^. Craw.v , ««0 

Mitchell, Johnson ft« ^....59^1; T. • 

Moljneax et <tL vt. CoUSer..,v 46|Taylof vs. Tht Gov. Ac, ..,1.521 

Moore et al. Dinkios w ^ mTerty vt. The Slate .....204 

Myers, Suydam^ Go. Ho()ge8 V9,...^92 Thornton et al. ««. Hightdwer ...1 

N. ^ * . Tigner, Totopkius ♦•. ^ « 103 

Nichols, HanaahMi vt^. *.^:„ 7tiTQBi|>kiiis v9. Tigner i.A%3 

Norwood, fiar^ ef tft M....^.........0Q5Tbmpkms v/. Thv'l^j^ ,....4....80€ 

0. Towpkinfi, Covry, adm>« ^ 351 

Oeborae vs. The Ordinary, Ac. fot iTowns, Everett ei aL exSry, v9.;.^...l$ 

usty Ac ....,....v 123'Tiigg:la, admS, pa. WiHdoMn.« 90 

Pi Tucker etal. vt. Shorter tt a{ «2# 

Paxi6a«i. ButSkr.... »,««...,... ...^.^^^OOTuriWBr e< ai. Couch o« .% 480 

Phillipo va. The SUtdv \ ^.459 The Central Bank v$. Mahone Ill 

l*rintOp W. Mitchell ., jb.»658Tha Ceniral Ba^Ji «•. IRTillittAi^ 

Pryor«< al. ««.MoRoixegr ^ dE....^....«44 adm'r ,...w..lM 

Pjron, MiteheU va ^416 The Central R. It. ABk'| Co. Davis « 

Pyron,,Gresham r»..«.w^....„.^...468 and another «»....« t 323 

R. The Got. for «m, Ac. KeaUm at oL 

Rawvm v, Coekrane/al ;..... ...80 vt , l.....^..........»...\jt|8 

Redd et al. vt. ClOptott «< ol. 23o}The Gov. Ac. Taylor vt... \,.JSM 

Reoies vt. Maithewa ^ 449|The JusCfccs, -Ac. pobbs «« «i. ve.^^N 

RichardsoQ, Kerley vr. ^...6#2Th« Justices^ Ac. Griffinot*..; IM 

RobisoA ys. Banks.. ^..... •«...21l The Mayqr, Ae. Cox w...,. ^...248 

Rogers ot. Solontots..*. .^ 698The'Ordlnaify, Ac. fbf 48e,Ac.OBu * 

Rosfboiry ot. Roseberry ;139 home vt .* » .-)II 

RooMt^t, fiyde A Olark, Shannon the Rome Br. R. IV. A ft. Co. Mits^- 

vt « «^.» ...68 ellot .«...^..^../... IV.. ..if 4 

HdnmMoL JiamMkUal t«......^.MTht Tn»lo«o^ A4.'JaiMfeiM...: jA% 

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CASES 

ARQUBD AND DETERMINED 

IN THB 

SUPREME COURT OF THE STATE OF GEORGIA, 

AT COLUMBUS; 

JANUARY TKJiM, 1855. 

Present— JOSEPH H. LUftlPKIN, ) 

' EBBN82RR STA!tNR8, } Judges. 
HRNRY L. BKNNING, j 



No. 1. — DoziER TuoRNTON and others, plaintiffs in error, vt* 
Daniel Higiitowkr, defendant in error. 

£1.] At May Term, 1852, ao order was granted by the Judge of the Superi- 
•r Court of Muscogee County, allowing Tio amend hid bill in Equity, thea 

' pending in Couit ; which order required the defcndanti* to appear and an* 
awer said amendment, on or before the first day of the next term, with tha 
liberty of pleading or demurring, or 6oing both. The next term com- 
■enced session on (he first Monday in November. Neither plea, ner de- 
nurrer, nor answer to the bill, as amended, was then filed ; but on the 22d 
day of December, (the Court being until that time in session,) when the 
complainant was about moving in the cause, the defendants proposed to 
dismiss the order granted at May Term, 1892, on yarions grounds, alleging 
irregularity and insufficiency in Law : Heldj that these objeclfoaB came too 
late ; that they should have been presented, if at all, at the oommencemeni 
niiht jcrm, when thp detendsnts were called on to plead, answer or demvr, 
Ac, and that any other practice would allow unfair ndyantages to be 
taken, and might be productive of improper delays. 

p.] After mioh delay, it was proper for the Court to over-rule a motion by 
the defendants, made on said 2 2d of December, to be allowed to demur. 

Se^ and, answer to said bill, as amended, inatanter. 
In some cases, a complainant may proceed against a portion of many de- 
fendants of equal liability ; as where the parties liable are very numerous, 
and where those sued may bear their proportion of the loss, as well as if 

tOL..ZTU 1 



SUPREME COURT OF GEORGIA. 



Thornton et al. vt. Hightower. 



all interested were before the Court, and suffer no injustice thereby — there 
a bill may be filed against a portion of them, to compel payment of their 
aliquot shores. 
^4.] Though defendants to a bill in Equity be in fault in not filing answer in. 
time, and the Court is proceeding to take the bill pro confttio against them; 
yet, if there be then excuses offered to purge the default or contempt, and 
which present a reasonable ground of indulgence, (unless the delay has . 
been extravagantly long,) the Chancellor should allow the answers to come 
in upon such terms as he may deem it his duty td prescribe — requiring !• 
see the answers proposed to be put in, in opder that he may judge of their 
propriety, and not putting the complainant to the peril of just such an an- 
swer as at that late moment the defendants may think proper to submit. 

In Equity, in Muscogee Superior Court. Decision by Judge 
IvERSON, at November Term, 1862. . 

At the May Term, 1852, the following order was granted in . 
this cause : 

Daniel Hightower 

DoziER Thornton 

The Court having, at May Term, 1851, granted an order 
allowing the complainants to make certain amendments to said 
bill, and directed tie manner in which service of the same 
"Bhould be perfected on the defendants to said bill, who bad 
Tiot appeared and answered the same, and the Court being now 
x>f the opinion that so much of the said order as directed the 
mode of said service on daid defendants, was improyidentiaUy 
'granted : It )& here, now, ordered, that that portion of said 
order, in regard to the manner of «^rving said defendants, be 
roKsalled and set aside. And the said complainant being dedi- 
rous of withdrawing his waiver of the answer of certain de- 
fendants, as expressed in said order : It is hereby ordered^ that 
said complainant withdraws his said waiver ; that fW the de- , 
fendants to said bill, or their Counsel, be served with a copj&of 
all the amendments made to said bill, and a copy of this order, 
«ixty days before the next term of this Court, if to be found io^ 
this State ; if not, by a publication, once a week, in one of the- 




COLUMBUS, JANUARY TERM, 1855. S 

Ttiornton et al. vt. Higbtowcr. 

pttUk Gftsettee in the City of Colambas^ for two months be* 
inre the next tenn of this Coort, to wit : Daniel Hightower vt. 
Doiier Thornton and others, (the names of those to be served 
to be inserted.) Bill, Ac, in Muscogee inperior Comrt, to oodh 
pd the defmdants^ as stoekholders of the Planters' k Mechan-^ 
ios' Bank of Colnmbas, to pay vp the unpaid stock in their 
hands : It is ordered^ that the said defendants appear and an^ 
swer eaid bill, on or before the first day of die next term of 
this Court, with the liberty of pleading or demurring thereto^ 
or both, if ^y think proper. H i» farther ordered^ that all 
Ae defendants to said bill appear and answer said amendnieAts, 
on or before the first day of the next term of this Court, with 
the liberty also of pleading or demurring, or of doing bot^, ta 
the same, at the time aforesaid." 

Counsel for defendants were in Court when this order w^ 
pissed, and resisted the passing thereof. 

At November Term, 1852, Counsel for defendants moved the 
Court to set aside these orders, as improvidently granted, oft 
^ following grounds : 

1st. Said orders are uncertain and insufficient, as to the 
Dimes of the defendants to said bill. ■ • 

2d. Because two of the defend»ots to said bill were, at 
the time of the passing of said order, dead, to- wit : David P« 
Hillhouse and Abraham Key, and their representatives, at that 
tiae, had not been made parties. 

3d. Because the defendants are given no day in Court, in 
which to demur, alone, to said amendment. 

4th. Because said order for service of said amendment, by 
piddication, is erroneous and contrary to the Statute in relation 
to the service of amendments. 

5th. Because said orders are improperly granted in this, 
tbtt at the time of the granting of said orders and each of them , 
smI complainant had not, in truth and in fact, amended his bill, 
and had not filed any amendments in said cause, making said 
A. B. Bagan, the assignee of said Planters' and Mechanics* 
Bank of Columbus, a party defendant to said bill. 



\* 



SUPREME COURT OF GE0TK3IA. 



Thornton et al, vs, Hightower. 



6t]i. Because, if the complainant had made such' amendment,' 
the tame was irregular and illegal, inasmuch as defendants faiut 
answered said original bill, before such amendment ; and the 
same being founded oA matters and things accruing after the 
filing of said original bHI, as is shown by said amendment — 
the same could be engrafted on said bill, onl j bj a supplement- 
al bUl. 

7th. Because the orders arc irregular, insufiBcient and im- 
provident, as appears by an inspection thereof. 

The Court refused the motion of defendants' Counsel, and 
ex(%ftions were filed thereto. 

' Defendants then as*ked leave to demur, plead and answer to 
the Mil, as amended, confining themselves, in the demurrer, to 
the amendment alone ; on tht ground that the same could be 
allowed only on supplemental bill. And to plead — (the pleas 
being already filed) — 

• 1st. That Rdbert B. Alexander was the*proper party com- 
plainant; that Ragan was improperly made a party defendant,' 
and divers other things, which appear in said pleas, and Ann 
S. McDougald pleading als« the several other pleas, SkJuXplaen 
administravit praeteKj rf*c». 

2d. That there were* numerous stockholders of said bank, 
ownhig numerous shares of said bank, solvent and within the 
jurisdiction of the Court, of equal liability with these defend- 
ants, whatever their liability may be per share, not made de- 
fendants to the bill^ and which complainants could have 
made, and can make defendants to said bill, and who are ma- 
terial and necessary parties defendants.to said bill. 

And for answers, the defendants offered, fully, to answer the 
amendments instanter; and in fact, some of the defendwnta 
had filed their aQSwers in th^ Clerk's office, but wi^iout p^- 
n^issioQ of the Court. The Court refused to allow the defend- 
ants as curing their default thus to demur, or, demur and plead, 
or demur ;ind answer, because the defendants were in default 
in not filing the same ou or boforc the first day of the term, as 
by said order required, and had not so filed them until the case 



COLUMBUS, JANUARY TERM, 1855. 



* ' 



Thornton et at. vm. Hightowert 



called in its order for bearing. To Which ruling of the 
Conrt, said defendamts, bj their Counsel, excepted. 

The Court then directed the complainant Solicitor to take 
the order pro confessoj as to the araendipentstasaid bill. The 
complainant Solicitor insisting upon his right to take the whole 
bill as amended as confessed, the Court granted time until the 
next morning, for \Am to produce autboritj sustaining said rao- 
tioii ; and on the following morning, at the opening of Court, 
the complainant's Solicitor was called upon by. the Court to pro^ 
ceed with the reading of the authorities, when the Solicitors 
for defendants arose and appealed to the' discrertion gf the 
Con^, to ajlow them reasonable and fm*tber time in whicn to 
file their answers and pleas, or answers alone, by. enlarging ther 
order of the May Term, 1852, in that regard,* and offered 'to 
the Court, in excuse for their drfault,&nd as purging' them- from : 
all contempt — • 

The statement of Col. H. Holt, who stated that he was erig- 
inal leading Counsel for a l^*ge portioft of laid defendants, 
and on whom had devolved the principal preparation of tlio 
defeiKTe, from the coTtimencoment of the casfc ; that It was not 
and had not been his purpose, or those he represented, to de- 
lay the oase ; thai since the first week in August last, until the 
last week of the present term of this Court, he had been siek, 
and had not been* able, and had not prepared this or his numer- 
ous other cases in this Court ; while he would not say that these 
particular cases had not been neglected, by reason of his indis- 
position, he would pay that these and all his other cases had 
beenHieglect^ ; and be regretted to add, that his^clients had 
suffered most materially. * • . 

B. Hill, Esq. also of Counsel for two of the defendants, to- wit : 
Alexander J. Robinson and Dozier Thornton, stated, tbat al- 
though thus employed. Col. Holt was employed for the same 
defendants; yet, he. Hill, was not expected to aid in the pre- 
paration of these cases in vacation, as he was necessarily ab- 
sent ; that when he first came to the Court, during the present 
session or term, he had been informed, by those on whosd in- 
formation he relied, that complainant's Solicitor had, the we^ 



6 8UPRBMS COURT OF GEORGIA. 

. , t 

Xbornto^ ei oL vt. Higl4ower. 



before his arrival, aBnoonced that he should not take anj stqpa 
in these Equity bank cases, furUier than to make partiee there* 
in, as to th& representative of deceased defendants, which had 
proved true of one of t^e cases — ihat of Carey, assignee^ v%. 
Hoxey, but not so ef these eases ; that when, at the last term, 
the order was taken in this case, he was fully of the opinioa 
and belief that said order allowed a demurrer alone, at this 
term of the Court ; and consequently, further time to plead 
and answer, eqpe^ially as on motion of defendants, at the time 
SMd order was passed, f^not demurring alone" were, by tiie 
Court, stricken from said order, and he had informed Us cU« 
ests of Us, said Hili's, understanding of the legal eQdct of said 
^Mrder. 

Alexander J. Robifison, in person, J;e^tified that he had ap* 
plied te Judge Sturgis, one of 4)is original Counsel, as to the 
preparation of his defence in vacation, who informed him »that 
nethdftg waaneoessary to be dene in vacation; and hearing of 
the sickness of Ool. Hok, his other resident Coupsel, whose 
sickness wvts known to him, and the absence of Judge Sturgis 
at Washington, he had not employed other Counsel to prepare 
his defence. 

Henry J^ Devon, Counsel for Ann E. McDougald, adminis- 
tratiix of Daniel McDougald, deceased, (as was also Col. Holt 
Counsel for her) stated, in his place, that he endeavored to ob- 
tain the papers in this aiui other cases, in vacation, in whiok 
Mrs. McDougald was a party, in order to see to the prctpara- 
tion of her defence before the present term of the Court; that 
he applied to the Clerk for all the papers in which she wak a 
party, who informed him that said papers were not in offioe, 
bnt were in the possession of complainant's Solicitor; he then 
applied, ^several times, to Mr. Stokes, the co«partner of Mjf. 
Dougherty, who informed ^im that Mr. D. was absent, and 
that he could get none of the papers until Mr. Dougherty re- 
turned; and that he was unable to procure them until during 
the present term (^ this Court. 

• Martin J. Crawford, Esq. for himself, as defuidant, stated 
that in September last, Mr. Stokes had called on him and 



COLUMBUS, JANUARY TERM, 18^. T 

Tbonton et cU, m. Higbtowef. 

asked him to aeknowledge service on the aaiendfliaiit, the 'or- 
4mt beiBg abtent, itating tc him that it wa^aaly an old amend- 
ment, granted several terms ago, and a copy of which he, da* 
fendant, already had — .and asked defevdant to acoept aervice 
a]|d waive being served with a copy ; and iefandant did so,. 
and never knew the contents of said order, as to the peremp- 
tory requisition of 'the same, to answer said bill on or before- 
ike first day of this term ; nor was be iT^formed, by any oM,. 
about it| until widdn^he last three days; so soon as he was 
iaferaied, be promptly answered said amendsMBt and filed said 
answer in the'Clerk*8 office, but without leave o^said Coast to 
cUs9. • . * 

Defendant^ further proposed to answer said bill| in sneh* 
manner and within such time as to cause ncT delay to complain- 
ants; that 8ai4 complainant might, so far as defendants were 
concerned, set said cause dofKU for trial at the next teml of 
said Court, if he was, as to said amendment, and in reference 
to other defendants, (not served witt^it,) in a condition to do 
so ; aiid because, in fact, it would not d^lay complainttnt, as 
he had parties, to-wit ; the representatives of Key and Hill- 
house, not served with cftiid amendment ; and the rufe for time, 
to perfect service of said amendments, would have to be en- 

laiped, as to those defendants. 

• • • ♦ 

^ftar considering said motion, said Court refused tbQ sa»e 
as to ^^ach and all of said defendants, and to which decisions 
of lAid Court, refusipg sai^ motion, SAJd defendants, by^tfieir 
Counsei, then and there axcepted. . • , 

Coapiainant had, previously to the abmv stated mation 4>f 
difendaMto, moved to take said bill as amended, pro cM»/s«i9, 
as t« the said defendants, served with a copy of satd'amend- 
mant, under si^ order of May Term, 18^2, uid now insisted 
on the granting of said moiion by the Court ; and 4s pr^liaii- 
ipas^r therelo, was called upon to prove service thereof, and Ibr 
tha purpose, producad a copy of said amendment, and a certi- 
fied copy.«f said ordec of May Teran 166£, tbarelb tfttacbod^ 
aad Fi^ thia^antry Ihtrdttik: 



8 SUPBBMB COURT OF GBOROU. 



Thornton et al. v$, Higl^ower. 



** State of Gbdrgia — County of RANtWLPH > 

Sen'^d the defendant, peA6nally, witli a copy of the withm 

origitml: •* ' • 

September 5, 18*2/ 
' (SlgiM$d) WASHINGTON JOYCE, Sheriff/: 

And claimed the entry of « said Sheriff ta said araendment 
ted eopy order, as evideiice of service thereof, tn WillimiB Tay- 
lor, one of said defendants^ to whjch defendant's Counsel ob- 
jooted, ^ insHffioient evidence of that fact, which objectio»lhe 
Co«rt OTerHTuied ; t^ irfiich rulyig of the Coutt the defend- 
ants, by their Counsel, excepted. Complainant the^ A- 
mbited i^copy qf said amendment, Trith the Clerks certified 
copies of the er^mrs thereto attached, qn which was an ac- 
l^UQwled^ment^ of service, signed Martin J. Crawford, for 
himaelf and co-executors; ajid defendants oojected that this 
was not sufficient service as to said po-exeeutors, as said Craw- 
ford dia^6t,,in such aclcHOwledgment^ 6ho\^ himself to be the 
Solicitor of said co-#xecutors, which -objection the Court over- 
ruled. To w)iich r^linig the defendant^ excepted. 

The complainant then introduced several copies of the Co- 
lumbus Enquirer j a newspaper published weekly in the Cit^ 
of Columbus, in said county of Muscogee — showed by said i»- 
pers that a copy of the said order, with the name of Dimiel 
Hightower, coiAplainant, V9, Dozier Thornton, James M. Fos- 
ter atd Jam^' Slayton and othefs were stated as defendants; 
afldif the defendft^nts, excepfTfcomton, were included thefein, 
it was in the desljgBation "and othfers,** ant! not by theit tiev- 
eral names. Complainant proved, by aaid paper, that a copy 
^ said order, with defendaqis named therein, as aforesaid, had 
been published once a week for two months, to-wit: ina pap^r 
igtued OR the Ith day of September, 1852, an^ in one isBueeo 
the 2d Nbvember, 1852, and in each weekly issue between that 
tinie, and relied on said publication as Evidence ihat i>^ittfr 
Slayton and Greenwood had been legally* and suffioieafl^ 
served Vith said amendments. Btfendaats' Ceunse> objeelAI 
to the (sufficiency of said service, aiMl to^ the sirfieiency of the 



COIAJMBUSs JANtjiOlY TSBi», \Uo. 



Tbiwutni, ti ^ V9. Hiffblow«r. 



•fideoce ^kereof, iip^n the gimuid Ihat ibe aaaics ^f mid cb» 
iNiAiDt8*were not siff ciently ntmed k sftid c^ptioD, < and b#- 
o««Be said publication had only bees nad^ twa rooBtha, wbicih 
objections were over-mled bjr tb^ Comrt. . Tb which raHug 
mnd decisions, the defendants, bj theit Counsel, ezQ^ed. 

Defendants showed for cause' why complainant's Counsel 
aboald not take the bills as. amended, pro confemoj ae to the 
defendant$,(otber than the represeniativ^s of Key and Hillhopse, 
BQt senred; and. as against whom complaipant did not ask said 
arder,) in adQition to the faregoing reasons, already stated, the 
ftUowiD^ : • • 

. 1st. Because Key & Hillhouse were Aitn dead, (and it ^aa 
than and there admitted by coQaplfinant's Counsel, that Hill- 
bouse had been dead two aiyl a Jialf yeais, asd Key one an<i 
f half years,) aitd th#t the •representatives of Kay and Ilill; 
boiise not having beeu served with said amendments, the ^ill, 
as amended,* was not in a cpndition to be taken pro cofifeuo^ 
as to any defeftdaats. 

2d. Because the order should be (rnasmuch as the aftoeod* 
meat was oply a^to parties, aod n^t aij^terieiry afiectin;g the 
luun gist of* the .action set forth *aTid« charged .^gal^st defend-. 
aatain tl& original bill^aud as defendants had answered th% 
ariginail bill as aforesaid,) mid oader (if conipt^inaQt pould nopva 
at all,* which dafendants deny,) is npt in sucb condition, e4t,bci; 
aa to makicg, filing or sewing, thereof as nill enable thO'Ccnn 
phiaanrt to take the bill as^ amended pro corrfei^a^ af( to Began 
or amy of the <!efendanis; ifhich objectii^na the. Court oiierr 
nileci) and* granted theaorder dsked for by oomplainanty taking^ 
the bill pro confesfo^ as to all of the defendants except the* 
rafMresastaAives of Key and Hillhousa, dniceased> T9 which 
decision of the Court, the defendants, by their Counsel, ex- 
eapied! 

Complfkinants then moved for further time, to serve thf ^p-x 
reaentatives of Key and Hillhouse, with the amendments to 
aaid bill. The Coqcit granted tjie muioa and erd^red aenr)ce 
thereof, and that said parties should, on ti before the 1st day 

VOL. XT11-2 ♦.-,./ .v',^ • 1 i ./' .. ^ •; 



I6 aUPi^lIB COVBlF OF aSOBGiA. 

. • f 

Thonto« etal.99, Hight^rer. 

of tile next tem «f ibe C«iirt auw^ the* ameada^nts. Te 
nhiok decision pf the Ceurt, graBting the order, defendaats, 
Vf tkeiv Counsel) exctfiei. * Defendants, bj their Couisel, 
looted to diwnitt said biH^ On tbe following grounds: . , 

1st Th^t complainant *had not used due dilifl[ence in the 
p^paring and speeding said casa and in setting the same down 
fos trial— as more than four terms had elapsed since the filing 
of paid bill) in which the Court had beeft held, >and in which 
eomptaindnt could h^re taken steps to spee4 said case, and 
taken steps to aet the ^ame down f^ trial, akid coo^lainant 1^ 
not, npr had said Court, set said case down for trial, withkv 
ihe.iimeiimited by Sttitate fer that purposf . 

2d. Beeause s&id bill haanbver been, since its having been 
fil^d as aforesaid^ docketed and called* in a legal and propef 
Sianner on the equity dOeketof sai<\ Court, the same haviag 
l^een docketed *and call6d (if at aH, which defendants deny,) in 
this manner, and in this manner only — ^ Daniel Hightower va. 
Bozier Thornton et ah Bill for Discovery, Belief and Contri- 
Ititiorf." . • 

3. *Becaug^ all the i^terioqutery deorees avd orders^ taken 
by said compiaiinaiits in said ease, (if taken at all tn said ease^ 
which defendants deny,) are ambiguoui), uncertain anH insuffi'L 
cienti as the case h^ which they reffr, and as' to the defend 
mnts to b^ bound therehy, said order being headed in tliis way 
m4 no ether^— ^ Datiiel Hightower tv. Dozier llhonitOA €ft ai. 
Bill,** &c. and said orders will be ^o luffieient protection to^ 
Aese defendants, as IK) the facts of said casta {herein recited. 
'Which motion the Court over-ruled, and to which deoisioiv iie^ 
fendauts, by thefar Counsel, excepted. » 

And upon these several exeeptions,- error b&s beeft KsignecL 

Judge Benn^ng Jiaving been of Counsel in this case, did a«t 
pi^sid^k ' * • 

B. HnL atd H. 'I{0LTf for plailftiff in orror. 



» • » 



DouQHXftXT^ for defenAint in f rrpr. 



COLUMBUS, JA-NlfARY TERM' 1855. 11 

M t 1_ 

Thornton et yiL r*. Highto\^r. 



• • 



By iite (7(mrf.— ^Starnes, J. delivering the opfnion. 

At iJfay Term, lS52j an order was granted by tbe'Superior 
Court of Muscogee County, fh reference to amendments of the 
bin filed'by the defendant in* error, (the complainant in the 
Cour\ below) against Ae plaintiffs in eri'tr. At November 
Term of said Court thereafter, tut as lale as the 22d day if 
B'ecember, to whicft time the Cdtirt hdd continued fn session, 
-the defendants to iaid hil) .move^ the Court to set aside said 
order on various grounds. 

p.] These grounds were; in eur opinion, rightly over-ruled. 
Th^ were in the natur# tf technieal objections, and caAe to<x 
hte. If good at^fl, they shouldjh^e been, made at* an earlier 
period. The Court commenced Its sessjftn on the firit Monday 
inlfevember, aftSi fk wtis mot*until lite 68d chiy of December 
tkerwtftef, when the corapiainaint was iBitxi^t moving in his case^* 
that thede objeclions wene mad^ tb ah. order which I^d b«eii 
takin at a previous term or the Cojart. The defendaiks w^e 
requif ed, by that order, td jkp^ear an tf dnswer said amendments, 
oft or Ijefore thcfirSt day 'of the n^xt.lerrfi of the Court,' witk 
the liberty, also, of pleading, or demurring^ or of doing Both. 
That w§-8 th^ trtnfe at which* they 'shoujd have Dnes&nted these 
objections, if they desifed to rely upo^ t\tm — the <tme, at 
wMch they' were* called upon ta anvwer ; when ftie comj^^inaut 
wOuldi lutve ' had the earliest botice of their obJQctfons : and if 
some* or all ofthem had been sustained, would havq had the 
wbol£ tertn fn whfct to shape hU course accordingly. Any 
0tti^ pl-actice Vbuld aDow unfair advantc^es to be taken, and 
nngkl be pVtdnetive of improper de]ays. 

t^S.] The def&ndaiits theh asked Teave to demtu*, plead aild 
lUIa^er to sait) anf^itdefl bill, irtManter, And thpy pres^ited 
eertibhi p4eftd td t^ effect : 1. That th% matter contained ixi 
said iimeiddineitts s&ouTd Have been presented in t]ie shape and 
fbrm of a' sup'pIetHButa'l bill. 2. *Tbat**A.*B. Ragan was* im* 
prdp'erly ihadf a defendant by said amendments, atid should 
have been a party complainant to said^iU. 3. That there 



12 SUPREME COURT Jb¥ GEORGIA. 

. p ^ 

Tli^rntQn et al. vs^ Hightower. , 

^^ ' 5 ~r 

were nameroua stockholders of said bank, solvent and within 
the jnrisdictmn of the Court, of %qaal liabilitj with those oMtde 
defendants, who had not been made parties, and who were ne- 
cessary p^jrties. ' • • 

The leave tbns asked was refuspd by the Court; and prop- 
erly refi^/ed, in our optnion. As the case then stood trt Court, 
inih the otder of the last term ii> forco, requiring the defthd- 
ants to answer, ple^^ or demur on the first d%y of the next 
term, with the fapt before the* Court, that neither plea, defnu»- 
rer nor answer had been filed in pursuance^ Cjftl^ x)rd0r, and 
with no excuse rendeted therefor, tVe parties appeared befire 
the Court in default, if not ip cqptempt p and they had* no 
nght^othe indulgence os privileg^^ ^hic]^ tb^y craved. % It 
would have beef a very bt^pt^ctice, *inde«d^«which accorded 
it to them* • ' . t %. 

, [9. J Ifeuchin^ on^ ^ ^ese pl«9£^ we dtsiv^i to make a few 
observations which m^y possiblj sa\'% trouble hereafteif. * , 

It wan in8iste4 that all ihe stopk^olders of said l)ank, sol- 
vept ana ^{rithin th^ Jurisdiction pf sfeid Court, of equal liab^ity 
with said deft^dants^-^peiw 'share, ^jild have be^n macle de- 
fendants to said biil ; and . }hat tlte* caus€b could upt proceed 
without them. , • . ^ . . 

Thi^ is J!|8t^one of the caseys wllere« acceding to yrcll l^ttled 
rules, % complaiy\ant iiaV pfopeed against a pyrtion ot many 
defbndants of ^qiial iability. ^Sucb is the doctrine held in Z 
Eq. (J. -46r^l66, and tg the following ^fct:, ".)Vhere th^ par- 
ties liable to* the' demand have been very numerous, the. Court 
Wv^, in like manner, permitted a l}ill to be fikled^agaiost a few 
of them, to compel the payment of.their alit^uatih^res, witno«^ 
Drlngmg tie * others* before* it, Xhji^ wjiere iS/ty perso^^ joii^ 
together to form a bank^ and tQ procure ai^Ac^of ^M^iatMiDt 
to Establish and settle it« and were at e^uaj. ahar|ej^anda||i)Kt 
iwoliundfed and fifty aabscribed to raist a ^d» biit.thCa^pec- 
vlation turned out unfavorably, whereby^ a \oss sf abogjt <£6OO0 
was/udtainedby the fir^t proprietors, who tl^ereupon exhibited 
their bill /igainst sixteen oftbe two hundred and ^fifty subscri- 
bers,, to compel* them, to. bear tbpir pioportion of the loss; it 



COLUMBUS, JANVABY TERM, 1865. 13 

TbornWn «l ol. m. ^igbtawer. 

wiip moved ikfX the bill ahoml^ abate for want of parties; biit 
<yVerHrQled, for tke plaintiflTs ^vilypray^ thi^ the defeDdaBt0 
migbt be^ theif propertipn of the loes, which would appear 
before ll\e master as well as if ^11 the two hundred anc^ fifty 
subscribersVqre thece, aiyl so, ii could be no predjwHee to 
tl^ose defendants/! See, also, to the same eifept, 1 Eq. 0. 
Abr.lS. Do. 165. i Dan., CL Fr. ^65. 

[4.] It appears, by this i%cord, that no orfler wlw taken by 
the Court against these defendant^ on the day in question, out 
on the ensuing .day they appeared .in Court, by thbir Counsel, 
and presented excuses for their default, by which they sought 
to ptrge themselves of the imptlte4 coaterapt. And thenr they 
asked leave to plead, answer or denfiir to said amci!3meiits^ 
and that the Mil n!fgfat not be taken pro confesio against th^if . 
These excuses were not deemed sufficil&nt ; the permission was 
refused, and the Court proceeded to requite proof of sArvice, 
in OBder that the biH mighf be taken prv confe$80 against aH 

defendants served. 

■ ... 

To hscqjrtain wnetfier or pot this ruling of the Court was 
correct, let us look a little into the character of this proceedyig, 
to take a bill pro confesso. ' fhe object of such proceeding,' in 
a Couit of Equftyj i$ to place the cooiplainant.in a situ^itiQa 
by which he Shall not lose his remedy lor want of the* answer, 
for which he }p depemSeot upon the conscience of the dcfei^d- 
aht. tt may ]^e said to be used by way of punishment for con- 
tempt; but it is not the peculiar punishment for such contempt 
— attflchn:t6'nt and committal to prison }s that rpmedy. Bi|t 
even^hese liave direct reference ^to the extraction or obtaSning 
ef an answer, as that which is the thing needful to' the justice 
of the* case. *' Accordingly, where tne accurate dhd regulai 
ftjlhns'of Cnaucery practice are pursue^* sndh as were of force 
in £tgiand i^t the tmie (^f our Adopting Statute, the defendant 
wnd ap'toears and^rdTuses to answer Is first committed f^r the 
content ; and if he*per^st§ in refusing, hispropetty, r^al and 
pet^sonal, may ^e se^ueajtyate^. In the meantime^ he will be 
thought to the bar and admofiiajied of tiihe pe*4l of nersevenng. 



14 SUPREME COURT OF GEORGIA. 

Thornton il ok vs. Higlftower. 

; — 1 , 

and if be still refuse to answet,4h6 bill will be take A as eoh" 
fe$$ed' against him. (1 HarT. ffh. Pr. 203. *2 Ch. da. 237.) 

Uncfer the rules, as they now stand ift Eifglaod, they faaTing 
been ^mended during the reign of William IV. the i^ecusant 
defentTant must be first committed for the contempt, to the 
Fleet prison; .-he may then be brought to the bar by habeas 
corpus ; and if he still persists in his rtfusal, the Court will 
then make an order that the bill be taken pro confesso. But 
ere A after this, the Court m4j receive the answer.* It will not, 
as mattei of «oqrse, be a sufficient g(ound«for setting the #i4er 
a^ide; ^^ yet, wherei^er an order of .this kind has been made, 
and the defendant comes in Upoa any reasonable ground of in- 
dolgenfe^ and pays the ^t% the Court will attend to his ap- 
pltcalion, unless the delay has been extsayagantly loag." 
( tViUiams vs^ Thompson^ 2 Brow. C. C. 280. 1 Dan. Ch. 
P. 69».)* ... 

. We have dwelt on all tUs^ for tl|e pi^rpose ef showing that 
the great point to be gained, Where a defendaAt re&sesvto «ii- 
swer, 18 the answer ; that the eiTorts of the Gourt ai% n^ainly 
addressed to tli& point ; that othei* punishment than ftiat of ta- 
kitt^ the bOI as confessed^ will firslj be resorted to, and that 
even after the order taking the bill pro cojffesso is entered, Ihe 
defendanj; will be aflewed to file his answer, vpfon »ny reasona- 
ble ground of indiilgence. Now we can Sfsere but f^w words 
in drder to apply these principles to tbe case taf bar, ner can 
many words be iiee<lbd. * * 

We wil( only add» th^t under the circumstancies of thispase, 
takiiiff intocoiftidemtiofi t^e fact that tlie Court had ndt deepied 
the eontumftpy of the defendants sufficieat to authorize* an 
attacumenyt fyv cohtemjit, and taking iQto consideratiom the ez- 
<mses'wl|ioh were tf^ndered by the Counsel for %l^ defeadapts^ 
especially the illness of the kading CoupBol, Col. H^U^^e 
think that thp Court should have considered this sfiewiijg aci e 
" reesdnable ground of indulgence," so far, as to let the ht^wer 
come in upoa it. Still, might th^ Chancellor have visitea in 
incoiFeiMencfe or netol^tty upon th^ d^fend^nts tor net h^vinj 
answered. Already had i^xej been rightly refused tlie prin- 



COLUMBUS, JAKUAIl¥ lEtM, W65. 



W 



• ^ ^ 



Eroretl 0$ a/. ex%8. r«. Towm. 



Ii|[«^f Aemimiiig or plMdiHg^ the 9iB«n4n«nl»; and the 
Cl^cellor «oiild,«aDd p<^]ia4ps«do«ld, ha^S admitted t]^«&- 
8ver u^fi ienus ; for we are toU thaf when tke order is db- 
ekfurg^d'for taking the hill pro ewfeuoy the CSurt will ^^re* 
qttre t4 eee the angwer propo8e4 ^0 he pat in, la order thai it 
may form a judgmei^ ae to the^Mfi^priety of it, and will Mt put 
the plaintiff to the peri) of Juat such an answer as the defend- 
ant shall l^ink prc^r to give/' {J^earnevs. Ogilvief'(ll Ve». 
77.) In this «iray, ioo, the Ghanoellor coiUd have prevented 
delay, and have seciured to the complainant»all«the rights (nt 
which Jieiwotdd hav^ been p^ws^^d, had the answer been filed 
iatimie. • ' - * • • 

Sueh would have been the subtantial justice of this case, in 
our opii^on, and such should have been the directi<yi given te 
it. . % • ' • 

This disposition of the case leaders it unneccessar j A|r hs to 
consider the question mad^ it|>on service, on various defendants, 
as preliminary to the order which w|is granted, taking the bill 
fro eonfe^Mo agilinst them. • 
. Judgment rovers^. 






¥0. 2.-^T. M. Everett et at. eiftcfators of James A. Evarett, 
. plaintiffs in error, ra. GEOftoE W. TottNSf, defendant in er- 

tor." • • 

• 

{!.] As a general rule, a bill for specific pe|;f«nnance, or for wbiH \& equiva- 
lent to specific performance, will ^e ffllowed pr not, according to the dis* 
cretloft orthe Court. If, tl^refore. a Co^]it4ismi88e8 a bill for specific per- 
ftmi^ce, Dir'tlfe groand that the vontratt praje^ to be perfonifed ianol 
^B^cientlj iv^v^, and the proo^ii |lich as to leare it in doubt whtthtF 
the contract alleged exi^t^ or not, tiie judgment will nat be jlia^urbed bv 
the Supreme fourt. . * 



• 



fa BqofCjrt i» Ttjlff Suycrifr Court Tried befi>re Jtt4g# 
lAWV W»,' ii^ Twn, 1M4; 



16 aUPIffiME 9(HJWr OF -GfiOllGIA. 

f I * . » 

Ev^retl et al, 4x'ts. vf. Towift. 

— — . — — : » * 

TIm» ex««iitori ^f Janes J(. Svef ett filed their bill agaiMit 
George W. Tewns*, aUegingrsubsUntfeUy as folloirs: 

• • • • .. . ' • 

" fhat in tfce years of 1«C8 or 1829; their lestatot- pnroha- 
Bed of the 6t«t*c of Georgia, synong other lots, t^o. certain Itfts 
ef knd, to-wit : \o{b nmoWs 269 and 264, sitaated on «r 
Betfr the Flint river, in first district fonneriy Musf ogee, now 
Taylor County; containing each two. hundred twoTand a half 
acres, more or*l?s% now .of the value of four thousand dgllard, 
or other lapge «um; thdt their testatorji after said' purchase 
froAi the Sttfte, and in th# life tftne of testator, paid "to the 
State of Georgiathe whole of the purchase money dgree(i*to b« 
j»id for sAid twd lots of land, (and tDok from the State reeeipts 
for-the purchase money so paid) amounting to the sun^of 
dollars, hut tCat h§ omitted and ti^glected to take grants from 
thefitate to* him fdr said lots*oTF land, and said Everett never 
went itito'the acCual pos^es8i©n»of*o«cupation of either ofs^d 
lots of land. . • ' 

That just hefore or soon after the defeth ef Ae said Everett, 
who had been much afilicted, and in cons^utnce thereof, phy- 
sically incapacitated from looking after his ordinary busiaess^ 
one George W. Towns, on dby , 18—^, he then being 

the Go^'ernoi' of tte"State, did, under 5ome jpretended law or 
resolution of the Legislature <5f said State, cause ^said two lots 
of l|ind to be adwrtised and sold ; and he fraudulently, by him- 
selfj^or through the agency pf spme other person or person^ 
purcha^^d, or pretended to purchaSe the said two lofc of Japd, 
and caused a grant or some other written or printed conveyance 
to be made and delivered to him for said two lots of land ; when 
said Towns weU knew, af the ^ime he so purchased or pretendeir 
to. purchase said lots, and fit the tine he caused saia .grant to 
issue, that the lots of land had b§en bought and pitid for h^ their 
testator ; and that one of colbplainents and others, before J^hfi 
said Towns botight and h^d said grants issued to himself, Ih- 
A)rmed him of the fact; and he acknowledged thai he knew or 
kirf been kifortned*tha4r mdi Jmtum A. fi'wr^t had*pttr4haied 
said lots and claimed them as hifttoWA • 'w^f • .** ♦ •# » 



co mi iiw UB .*jAypAJNr ^mtm iits. rr 

J -: , 1 ^ ^ 

.fta^T#frft8 ias O^rerodr^ en or A^ t4rrMMl S|n^*' IM^ 
eati^e^o be laBued to said Jtmes A. B i ii etts c^ M^ elrtonttn^ 
graaA ta FotB Aupjrben *29Y*, 242 anil S05, in ttfe ftaflie bounty 
aid di^^ct tbat t)>6 said lots m^^ situate, asd whicll« «i^ ]bbugl^t 
and paid for at the saiDe time th|t kfs numberB t^iffel 264 
were, aodirhicB Towns well knew. 

Tkat Towns Confessed thfft he "knew before he purchased and 
had said grafet so ifsii^d to himself, thai Sref ett daiVild sfiA lots 
of land «{s his own, andTownslErt^ight K) ptirchase the sane of com- 
plaiiants some titae before he as, Governor, caused the same to 

be sold as the lands of the State. * • 

* 

Zhat»4he lots nunibei's ^3 and S64 are situfte not far from 
tU$ plaptatidn of Towns, ^nd lie b^wten, or tcfirlj so^ of his 
]RaDtatgo^ and the FlTnt riVer, aftd woulfl be peculiarly Valtfatle 
to hnn from the proxin)itj to his lands an3 fa>i!ntflnd the branch 
<rftBe South Western Rail Road leading from Fort*ValUy'to 
Columbus ; that irhcn tbfe said James K. Evereft s(f ^rch*- 
sed said lands, which lands wer^-sold by the* Sheriff af \he 
County of Marion, in wAich coAity saiH lands then lay^ under 
an Act of the Legislature of this State passed in 1827, said 
Ererett paid ^ said Sherif the first cash parent required 
by Said aet. a!(d took' from hi^n thi certificate required, shew- 
ing said |)aymtfit, irhd what Was^stiH dae — w^ii4i,C9rtific9ta ia 
lost, or destroyed, or stolen ft*qm l^e aVohi^es of the Goveci|m^^t 
-v-and said Sheriff, who sold said lands, soon thereafter paid ta 
di^ State salid first paysaent. "* ' • • 

^at there Were ouly thjiee Qlnunqits mo^f^ to p% vad^ \fL 

three annual instalments. to*wif{ one in 1E30, one ii 1831, and 

one in*lS32; and wniA payiilents and instalnvents Were fully 

)«iij ^ 4^ ^tat#^^can8t«mUn§* Ika f«&^ayiaeA4 and i«anaidera- 

lioli*for said two lotb of land, as ^ill <Bora.Uly ^ajipaar by 

reCer^nae /<} t^a reeei^s ^ the SUte l^ tie (icmiff9$lArt^ as 

Callowst . • \ 

CoMF<fBAuc:i| £hw^fiAL.*a Ofiic% * V 
^QeorgUt, Milledgeville, 24tk April, 1830. / 

li ss sis i^ aT JltKiea«>. JBf^«rKt, by i^cMy M. Witef,*the 



■ l U I ^ ' / ' ■ ■ ' I * ' ■ ' ■ * • * — 

£««»(# tf< a/. -^rs, ifs. Towns. 



^ i JL 



GttMa, iat th« irst iAtUJueAt <m loto J]^(^. 297, 805, 24tf, 24^^ 
221^ i2% aeS^nd 294, in the first^istricjt of Miistdgee.* 
;.IViiMipfi , * :....»lS2 85 . 

l»^r««<.....»......... , J f.....i 09 

t 

■ I ■ 

. ' • • J183 94t 

Jif fem e^rt^fioftte Now ^11 of Hiiuea Hok^Trea0|urer. 

•No. 95. 



f» 



Comptroller General's Office, \ 

iUceived of James A. liver^ft, by P^ter !E(. GfrfeiR^, ^m%, 
t)i0 £um of ninety dollars and thirty-five cents, the /epoad in- 
sWvi^t f^r lotsNw, 242, £43, 263, 264, 2^7 an*,305j^all 
ijl tl^e jt»t districts of Muscogee ComU^y, as per ceftifica^o I^o% 
9^ •i^Ii^es dolt, Esq., Treasurer. , 

ff . B. HOWAiftD; (fe7Hp^ am% 

No. 145. ' • ^ 

C0M?TR0LI^R«GeNEKAL's t)f FICE, 1 

Geor^iaj ifilUigeviUle^ 20f A Jim. J.882. j 

Received ofJqpies^. jJVerttt, by Peter B: Gfteen^ Esq., ,tke 
^-m W eiglity-nqje cfollars and thirty-six cents, .the third in- 
rfkalieAt for Ipts Nos. 242, 24§, an^ 26», 264, 297 and 30<?, 
all in the first distrn^t oTMuaoogee Couniy-^JSdyY^, as per ceY- 
tiB(Jate ]fro! 145 6t John Williel^s, Esqt, Treasurer. 
^ • \* ^ . T. 6./lt«W/.ftD, Cbm;? C^enV. 

Thai tb#tefrMilt "to Taims ittift olA«ined tiifc, fva«(iul«titfy, ' 
qpid w#r« Gpastquendf y»M. / • • 

The |nB*7*v ims 'tiiai theyipigbt be deHfered «p lo be oan- 

celled. * » ♦. 

Gedtg^ W. Towas nmmf^ltek the%4H*iii sabstapce as follows: 

• • • » 

il% ^ws iHltimg «f tb# aHfl^d pur^htse 4 tibe |m kMt)f 

land, lo-^it : mi«ibers 263 awl ^64 ia the fii st dittrict af Oiigia- 



sam 



•— ^ v-»-* — 

E^^^tt et al. ex*r8, M/Towni. 

■ * » I , ■ ■ — 

idfy BCmeoge^ liQW Vayldir Cototj, by Annts-A.^erett* in 
iis life tta^y tod from all hedtos^Wen igfon^i fa teMtace 
tf tb% same^ ^e does not beli^v^ tbait Brer^f t ^r di^ |mr- 
thnse tha sav^e ftom the St^te of Georgia! He aSmito that iht 
tffo lots of land are wifrth f<yir tiiou8arfd»doIlarfi. 

'He%a8 no knawle4g(| of Everett, in hl6 life time, having pnr- 
chased said land, and of his having p^id to>the fttatjis of Geor- 
gia the jmrchaflf«Ei)pnej' agreed* to he paid for t^e ^a'me ; atitl 
his iBfom^atiod derived freii^Eterelt himself in fab Kf^ tinfe^ 
^flas^ tliat Everett was not a purcBader of th^ satne ; ahd his 
i&lbrmation'iBCs to Everett having paid the'purckaa^ money fojr 
iiid land t(f the titate, tMh An e!x:aiii!n«tioii of tlie proper re- 
mds'and x)^S«e8 Hi the 8eat*#< Go v ^' Uttl Wii,>M<itf and ib, that 
BtnH^tt:never paid^hp ' j)tuDC!hase laDsey, or-tojr {AM ^it, to 
ibe^Cafe for «»id two lotsf of ttutf, in peHbnn&nce of *iy c6ntt*act 
iAano^J)7 hiln with the flytate; and he does'nbt heKeve thaf Ev- 
/<9rett eyer did m^€ a t^qntraet with tfa6 Bt^ for fhe'porclfase 
rf the same; or ever ]^d amy mowfty to* the State in perf<mn- 
ahee of a&y ooftthict for the ptirehase '6f thft same! 

He -admits that gtiftits frotd the 9(^te nfter hMed t'cf 'fyrkr^ 

fiH, and^e helieves ijitj nevaf '6i|gl^ to*tetVe . Issi^ed to him ; 

'Ad that Evferett fk^6if entered *mlo.A[^*pdl^'^ioii *ef fb« 

¥0^ tl^e 8t&teiii6nt, trhat at the thne Everett parehaBe(]t saill 
lands, heip4M to^s^id commissioner^ on'e fifth ^Clie puroba|»e 
sft>!(d^ f^quired t^ be piid, ai^d tookf ftt)m thto, in writing, 
signed h^ thein ateordimg to the f equiretaents of tWkw, cer- 
tifi^t^ Ibat h6 had sO^i^tirehased si^id lots ef la/id and paid 
the part required to }>e {fcid, he has %o kno^Iedgft of fti6 Aicts, 
or itiUt df Ihem; kid does t^ot*t^lI^e*t\iat^«reti V^er bald 
4l^ fifth f9tt \3f*ihb alleged' pur^lase mnlley to the ^ptAmisdoii* 
er8;*and do^tet hefievi tte ccnilmismAaers ^ev^r issued to^l^r 
erett any ebrtitoale, in writhig'oA- otkefwise, that heliad Mo 
pui^cfaased ' A« lands, and p^d the part l^tilred hy tbe law ; 

He doas not believe the sam€ is Jh any t>fthe 'departnien ts of the 
8kAteXjh)¥emmenl*; ;iar does he beueye th^ same eyer was in 
ethHenoe. # 



29 SVP99M9 pOUUff OF €»9W||I&; • 



■ • 



Kv^e^ et al. ex'rs, va. Towns, 



iU k1i^S4no|Uqg of -fivajpeUba^pud td tb^ 3t«N of €fe. 
th^ ^i;)K)^ f<^P^ fl^the 4)ur<ji^ mone^ <for wi bkods. Hie 
kaowfl Qoibifi2 o£ tb^ p^ymeAto QhA);g^ tpwhave ))e6D made ^ 
t)ie ^4th^^il, 183^)^ 12th Jani^rj, ,1831,«aQ(} 2(^th April, 
i8<32 ; he I^ows 90t|)ing. of the. alle^QiTpayiDent of the foufth* 
ios^lmfint ohargeji t^ha\;e been made m the y^ar 1836, and 
Qjf 4 receipt being t^ieft for it ; but be)ievea,that ^ch paymeat 
was nevpr made by Everdt^, nor a receipt giv^ fpr tb^ same ; 
aid does ^ l^elie^e th;at such f|oeigt was Sv^r lost or. mip- 
l&cid^ either )»|r SV^rett or cc^lainaHts. * • ■• * 

He admi^ |^t oq the 2fts1^day/)f D8c«i9il|er* lS4^\hie.tI|^ 
Being. Gover^r of j%i4 St^it^, he .paused a lisUof the ungi^n^ 
fraotiopal Ipts 4i^,ii«draw^ lotg ,of land^ as-repqpt^d to laipa Iff 
the jSm|vej(«r (f^^eral of tl)^ Stat»,,iyiiW ItK,tbe ooUntj of Ma* 
€on^ to be ^%t tfi t)ie.3Wiff pT^ (founty as pr^videdferlrad 
divetfliNi by.^uoit of'tbe-L^gi^Cute ^pcoyed' Decembjir S^? 
184T ; %ftd lifter tlve f^me wiis duly ad^neptise/i}, sa|d fwolote of 
land^ numbers .26SiM^4ir^jU among otbers^. wero; sold by the 
Sheriff under (h^ ps^vjyuops of tbb ^ct of. the l^gilalatifre^^ 
t^MJ^t Tu«^j iif>yb<pi^rji 1849. ♦. ' . / ! 

^nrjr J, G. Wl)}i^Qis, at-the. sale*.Afp.Kesaidy bee^e t]|i^ 
j^irc^ei: <)f k)f* oi^er^63, jpk^ t]^ pit<^e5)r amnof $:iOS 0|^* 
and Benjatnin F. Gullett becdipe tjie purchaser of h)t pu^d^ 
^i at tlve f^ice pr 9Uiyi of $650 00 ; ^d Williamsand.^dlett 
thoD Qbtain^*<^rtj^4i^^8 of tbe^al.e af.saidtjp'l^l;^ jus ir^^Jyp- 
ed^by l^w, anfl Wtbict) oisi^ifiqate to said Gullet was ^teniaydl^ 
to-wit:,og tlie.lst d^y o.f Maroh, 18^0, duly |ran8^r^d^to 
^ef^ndant; ^nd on tJiMi aaT)Ei6 di^ Wj^U%^ transfe^ed t)ie c^ 
tific^ ttf sale issued te hiax ^ defc^^iKt.; 

W'#* '*♦ •» • 

, He admiQs Jl^fvvt tik^. sak^ of sf i)l . Ian4 ha »s^ntdn[||j||fitji 
and wyiiaips |)iat if j^ twp.lat^sh»(^*li^ djppose^^^iilAlail 

sup t}i^n fifj^eeg hiyoi^Vd 4^41^9^ ^^ thcY wtiddi)^*^^^^- 
i^ed ta bf y th?m, ai^d. b^ wquM (al^e And p^«^r tkem. . ^ 
That ^11 and.autijyiiil^r the sia^euiente contaioei^n sai&.Bill, 
that defendajfit f^udi^kutly^ by himself ();rptber ^];soin, jwr- 
chased said lan^ arei f^9^ a^4 ii^f ^f^9 ^^^ <^ ^^ C(yi)^ra*y^ ^ 
conduct of the complain^ts, or a^ best, that of one of J^h^m^ 



EjT^rfl^^ a/, ex'n, t%. Towns. * 

*: , : . 

to-wit: AdoIpkoBp.K^DdrkikyaltheBft^ofsaidlaiidB^afthekcB 
bees infonp^ aii4 helieT^g,* was syoh as to uidttce <]iaUett and 
Williams to believe jha^c^mplaajMuits have )io ij^t omiterett 
in or .ta said, twq lots of land, oj eithei;of . thea. F^r he states 
as matter 6S information and l^lief^ t^at Keodrick was |>resent 
at t]|e sale, and gave no notioi^of any cla|m or title toisaid twQ 
lotg of lona in said 'James At JSverettin his tife'tii&e, and iptde 
BO objection to t^ie-sale, although at that time one Thiirstdh JL 
Bl^om'pabljoly oj^ected to the sale of .said two jpts, on the. 
ground that be and one Johnson had eppUed at the proper der 
partmenfof jSji^ State Qovemnent to ghitft.t|}e Mn^e^ and tbht 
therefore Bloom anS* Johnson wer^ entitled to tbe.saoMu 
Wheo^ore, def^d^t ^js and iqtiistSy that th^ faictd herein 
staled show that eompUinan^ trove been and are now actjng 
frftadalsntl^. in endeavoring ^o 49et up a title ^hioh'.tWy con-^ 
sealed frott-the public at»tbQ tinft ^fendant iicqpired«1iis ihi^ 
lo the Uen^^ * , 

Jhexsharg|e in th^bill tJyM;^ he fraadi^|^tly eaniBed grantb 
or other evidence of titlr to-be issiM to lunjsiAf, is f hoUj felaa 
sad tmtme. JJpob. tixo^Huryt fic^^ftiB^alion of claim to said Und, 
Iff udmjplaiQaftti^ o^eAdant ^pand^d all turther paoceedinga 
as to" is^n^*|p:aBts aiiq sSt^fymlSiBy M t^ fiei^* soidon of ikm 
Gfiner^ Assem^ of said, Ska^ the faala*in,reklio|^ to tba* 
lands were ^braittefl to the* General Assembly in a memorM 
of d(9fai|daiii^ in- wMph^h^ ' ofltered t^ isltt^ the giiaji^ to. stpch 
per8ohs«as die (3reneral Asseftioly might direct: and after cew- 
aidsfA^^ of th/s psjiae and thf daim of ooaspfamftnts^he Qaq** 
Asi^mby^ by>a nesobrtion ym»%A on tb# «}9t]| 4^y of Doetm* 
W,»iy^6, Aacided-Hhal %U gtm^ 4o -^uik two lots of imj^ 
Ao$ii>ikae loittiifna^liat* * \ * * ^ ^ 

$im gtfm ^i md m^^ }xmtli the SMkdsfr ef iehn^l^ 
U^'anit iA At meaifc »iane?the two JasI lAMllnM^ .en esijl^ 
IseAii InoViti^ ilk tJie •ggrjigaAe toVhe.awi of 46*8^ 
wefff paid fa|r'def(ihdaB4^aivl j^ no st^ w^re taken pa fnjr Mn^ 
den^ by sa^ckMnplainntSt ^ p^ven* fhe iesMiilg oCsiiid gnw ttb ^ 
Whai<el^e).de{sndaniieclaMS that^bia^aoi in issniiig tW^ravAa 
taa^nai^ fr a^ et ol e n t^ hutMllHut th% sai»a wif CiirljpHMid 4on«> fi4i 



22 toPKBKE GOVRJS OF qB(^rA. 



ined^to him in the day 'and y^ar ,af#ise8iyid/ in aooor^ee 
with the Act of the General Assembfy of 1647, ak^ the resolu- 
tion of'Ihe samce aft abov^ mentionect. • « . 

He atte];ily and |ully denies ^hat hd had any notice t^at Ev- 
erett h%d bqught on qlaioted bsA^ l^nds, or . either i6f thetn, at 
^ time he parchased^hem. So ftur from having apy jHoh notice, 
lies^ys that*sotQe time in the ya^r 1845,' oc thereabont8,«he 
'afiplted t^ some persons residing in the neigl\borhood of these 
biuls, aud ^specially to Caleb iMbfiwg^ wly> own^jl a/lft |d- 
jiming* lot number ^63, 'vrho were the owners of th€»e lands? 
md^ c^nld^get ^o^f^rmation concerning the own£r of owners; 
uA \ejltkg desirous |o purchase . lots numb^ars 2$8, 26d, 2$4| 
2T9 aQd'2'8d, %nd being. a<^^sed l^at fTverett was the o^ser of 
* lot number 279; he apgliecl in ^x^ow ft Everett tp jfiarpbase 
8w;h of them as Jie. owned, and *did por^hMe freip bynlots 
ii^bplibers»279 '^nd'280, and* at\)ie same time hiqnfaped especially 
if ^e was the owner of lot^ n^tnbers 268, 264 an^^ 269, or if 
lib kiww who did c^p them. ' l^v^rett replied di|tinctfy*that 
ka did notpwn thefa, or eitA&r t>f tb^nii »and di^ not ^now.who 
M ewn* them ; an^ af^^rwi^i^/LefbadaDtapj^lied J;o the pboper 
dipartmeDt of the State* Opvenrf^ent t^ a^entaiiii, who Vei^ 
tt» owTk^i*o{ ft^* nilk]abeqs ^9% Imd ^i, and ^nras informed 
ftM;sai4'la»t mdntMied lots heffi verer be^ liflposed of^y'lle 
State. •.•'••. 

I)efend«^*mo8t p^jlivelSr denibs thk^ either of«the.com|Amn- 
mUb, or any other .peorsoii, gave him molice that Evei^ti had 
fcf gh t <gt daipwd said traelB bef9re defeadcNiit.boiight^lh^; 
9ttA b^ deinies jpnAst pdMv^y lifaat he ever' ai!Jkn4wled^ed tk«t 
% iMiew or had been * info|'Sie& that Ivef^tt hmt bfpigto^ 
obided said landd before deftndant h<ingti» tdten. INie ^pf^ 
tUHg be katfraf cM)4aiMnftl elaj^^ mdA hni^ m ^ 
llll^f theyei^ 1840, wlnn be wm kiAraed tlal^ the^4ft«ii 
Bffikna *e TrMMry m, MiHedf^tiHe showed th«t««Bvett4dl 
a* differeitr t^mteB ^ade fhree paymei^ at the freasvry em |nd 
flHr«iradry lels of land ; 4)«t dc^odaiKt denies ttrai^'oertiC- 
cMtoa fb«i*d ilk said Ckee)p*BDcdr, and wlach ac% mentioiied iu 
tl»4)ill, IhnriehfdalijrMolaofi if htm ikmM any s pee iie enn hpd 



, '—* 1 ? i i 

be^^imid foe tlioae'partioiilar lots, or that they furnifthed t^j 
notice tiiat (h^ Miner wu paid in jraranance of any coBtrad 
between EveBott aiid tl^e 8taf1i for the sale and purchase of 

aaid two lots of land. * '• . • . 

He does«not knew <fr remember what grants^ were itoaed ta 
tiyeretty or his ezqpntors^ on the 24th of September, 1850, <4t 
whelber any were issued .to^the lots in said, bill mentionetlv 
tl^t iB,^lots nimbers 2^7, 242 and 805, bat spates that,^* 
Kendric]cy o^e.of the pompl^nants, did piirchase*Jot nonher 
24;2 at the priee of 9460, tod nmnber 248 at the pif ce of $85]l^ 
(bot)i of whidhlbts are mention^ in 4he certificates to said 
amended* H>ill«meittioned,) at the aamd sa)e diat ^numbers 26S 
and 26^ were bou^t by kaid VullettP and Willi^ms^ 

Pe*most |>o0jtifely*dcinies.tjiat he ev^r confessed^vbefisre he 
pnrchBsed said lan^s, that he knew Everett claimed t])em ; and 
he ,^80 denies ^hat he ever, at any time, s^ught^o purehjise the 
same frcMn con^plamants, or either of them, and .sajrs that all 
BO^ all^egations in complainaijts' Bi^l areialse and untrue. 

That Oeoi^ W. Toirns is entitle^ to grants for frtf ctie^al lot 
No. 267 ^nd lols^f knj^o^. 268 and 264^ in the first tlistriel 
of "originally ;Mqsoq^^ noij^ M^Con Oounty, under the ter|tf 
and CQAdili^ns of the sale at which he ^eciyne ^he purchaser ^t 
tl|e saipe, under an Execotive. prder pfirduant to an act of the 
liet General* Xssembly 9f this Btate. 

Oitethe trial|t Wiley Williftms, Esqi wtil^ntrpducecT by coVt 
plainants, who^ore tk%t he was»present at the sale of undrawn 
square l^t^ of la^ lying in that i)art pf the Gbunty of l^hised* 
gecy then Maaion. • The sale ^a9in 1829. The land^in dia- 
pate lie in Aiat ^ecluDn. 'Ae sale was madefy Ae Sheriff, in 
pnrsnanee of the* Act ef tUb I^egislatur^. . Tflb Surveyor G^n- 
eral'fumifthed the l^erilf with a list of the lots ^ich were 8iic| 
to be midfawn lots. * Does dot reccMect any ol the nambeie^ 
nor that the* list famished by the Sur\;eyor General were all 
Ihf «mdr#wli lotf. 

•llM^Sherlff gave c^rtSfeailes to Iba, puv^iascrs (# tl^ leta* 
Bold oia the payme^tof AI^mI fnfiiiwit dift, ani thii^ a)l 



9i St)<pRBplE «O][J{tT.<0f «&0BGL^. 

I 1 



i^e sol^ that were in the list fiirntehedf tfa^ Sheriff. * yf^bem 
wr6te the oertificatee m blank, and th^*Sh'eriff fitlli tfa«myaA€t 
gyre them to the purchased; Ifut irtro, werenny ©f the pureka* 
aers he does not repollect, it lias beeh'so long. He does recol- 
lect ihal the Sheriff did mak^ his fetirn and seOtlehieilt for 
Aid sales, and payment of the moneys rtgeeiyed,. at the Treasa- 
r^r's office; or that witness did it»forthim. • He is certam^tbait 
•he "^as pr^^i^t when the money was paid to the Treaprer of 
tSie State, bat he cannot recollect the « amount p^id,, nor for 
w)xat {kirticj^lar lots. • . •' 

.To the best of his rctolled^ton,' James At Everett was xM at 
the sale. , H« does not remember any <y)e of the^pnitjhaders on 
that occasion. Mr. Evefett mi^t have ha^.ah agent there to 
bid, and he not r^em])er it. JEId thinks Mr. Qreian was thare, 
but whether he bid fof* Everett he does ftjt Bcmeinber. * • ' 

The-defendant's Counsel .then presei^ted^the»receipt« before 
referred J5, to ;the witness, and asked him if the signatures 
thereto .were the hand-wMling»of Howard, the^ Cbmptroler 
G^ueraV? pe answered that he v^s Acquainted' witji Mr. 
Howard's hanA-writing, having bft^n* ieeft.lritoi*%Titfe,»and tBat 
the two last receiptiJ,^ dated in ISdit and 1882, he ha^ no doiibt 
Wbre th& true and# paop^r signature of T. S. HdVard, the 
Comptroller: but that •ne did i|ot thhik flie signatpre \to t^e 
first, dated in 1830, was in the hand-writfng of Howard. 

On being crossed, by copipldinant's Soticitars, he said it 
miight be' hi& .signature;. that men *did «ot alvjays writ^*the 
s^me: ner c6ul4'he say 'that fhe signrfture/ij^ rfcit pat there 
1^ a (i!f rk, and by th^ directioi^^of Howard. , '* 

^are co^ijilaii^nts announced jjliat the^^lo3e$l, whende-^ 
fel»dant*s Solioitirs demurred to the evidence, and move4 to 
dismiss the bill, on the ^roun^ th^| campJainfLht^ h^ flo^, by 
lljjsir proof, m»^e,such a f^se as entitles ihexs^ to a depreein 

a^idcajise— , ^ , • , .. ^ . \ 

« • 

1st. Beeause complainants had not giv^n ^ e fiJla aa* ^ 
-mA o& Iheir ttataler^ tp%fro¥e tbej we^e eatltM to ^McArer 



COLUMBUS^ J^NUAB¥. TBftM; 1855. , iS 



Xrcrett « a{. ex'n. •(..towiil. 



2d. Because they had given no efidehce ^ any contract of 
j^urefaasc ^oF said lands- by Everett from th6 State. , 

3d. Because they had given no evidence that Towns had . 
notice of any contract, of purchase frob the St;ite' by flyerett, ^ 
befoce he (Towns) )[)archased from the State. 

Od hearing ar^ifment, the Court sustained the motion to dis- 
miss on th^ two I^t gfoun^Sy without deciding the first, and die 
bill was accordingly di^mi^d. •J * * 

•This decisi<)n is the 6rrbr assigned. 

• • • ' . 

HuNTERfi Scarborough, for plaintiff in error. 

• ♦ 

St B. SMfrn and B. Hill^ for, defendant in error. - 

Bjf*tffe Court. — ^BxiwiNO, J; delivering' the opinion. 



« • 



[1.]* T)}i8 bill is likePa'bill for specific performance. # It ia 
tme't&e prater of itns not that the State may pe^brm its cw- 
tract atid makcf a conveyance V thp.legal title to tffe con\plam- 
ttDts,' but it is that the ^Hourt may. Itself, do V)mt shall^rve in 
place of Buch*a oonveyjiace. The prayei is that the cdnv^^ 
aace made by the State to Toftusiqay be cancelled, "and thAt 
1^ J^J he dec'r^ that the legal title to^ 8aid*UUs op I'Hnd. is in 
jAe estate of oratpr^s te&tator.** The de<!i^e of <the Cotirf s^ail 
serv^fofa conyeyftnee — this iA ^e prayer. And the prayer 
is made tf take this extraordinary fprm, perhap^/frpm the 'dif- 
ficulty, which the con^Jablants felt td lie in the way 4)f ih4 or- 
JUq^^ry foup Df fl[)ilUaDd^raye^ij:*8Uch cases. The ordinary 
foYm reqi^ires^fie^ person who ought tt) make th%* coAveyan^ 
to be 9 p^rty to tbe*bi^ and ^/fcleo .requires him to be decreed 
to make the conveyapc^. But .in this case, the State III thM 
party, ahd't^e ^tjpt^ cdnnotibq sued ; and if it eould bey i Ju^g- 
mefttb'againdt it^ i*c!fait]ered'by a Court. ^ of i£s«own creatures^ 
eouIJI not b» eiifbi^. . •Hebo^ P?^^^^ the form of prayer, 
and the j^tSi (^fbtt"* i»1his base — a foM whMi oni^ from tie 



as SUPREME COURT QF/JBORGIA. 

—J ' — i , ■ — i' ■ ' 

E^eretV^ al. ex'rs. V9. Towiu. • 

¥ill tbe party that^ is the indi^ensable one in ordinary, cases of 
this port — ^the party that is, perhaps, the, only one tl\at is to be 
the ultimate loser or gainer by the event of the 8ui£. 

For ^uch a ^ill I kji<Jw not of any precedent. And in my 
opinion, for snob a one there is no law. 

K, however, there h for such a, bill any law, it must be* the 
l|fcwt)f specific performance — the lai^ ap^lica^le to the specific 
performance* of c«nt);fLCts. . * • 

One of the parts of that law is thus stated by Judge Staiy in his 
Commentaries on Equity ^Jurispfudenc^: "In trutii the exer- 
cise of tliis whole branch of Equity Jurisprudence^ respeating 
the rescission and specific performance df contracts,' is not a 
matter of ri^tin either party, but it is a matter of discrjtion 
in the C^urt — ^not, irideeH, of arbitrary fit capricious discife^on, 
dependent u[^on the mere pleaeure oi the Judge, but of that 
sound and reasonable' discreti^ii' which *gOTenis itself asTdr as 
it may, b^ general rules and prmcipl^s."* .Aftid this statement 
of tlheilaw is well supported by theaufliorities whicl;!, he cited. 
(2?ASbry JSqflu2.) '• • ^ V • .: * * 

It ng 'riot % matter, of right, then, in either party to have a 
specifi(J peMbrmiice'dec^eea. The Court may decree one or 
not, according io the fact^ and its discretyn. * 

The judaoienj jfisigned for error in this case waSt that wVch, 
oti the SnotiQn (Jf. the 'defendant, ^ipisspdt^ebill. . ^Tbis judg- 
ment the- Court . put ftpon two, of thef three ^p^cificatioutf o£ the ' 
crdftaid takeain the motion to dismiss; — these two^that.the com- 
pfainantshad given no. eyidence of Any/ontri|ct* of^.urchase 
by Bterett from the iState-r-th^t th^ had gi^n noi eviaence 
siK)wibg*Toi^ to have Jiad notice of any 'contiBactft)/pur6hi£i^ 
bj' TBVercti from the State, beforj he, 'To^mi^ p)lrcha;tod from 
the State. ' .'.••' \ ' * • 

"WWat evidence 4id the caxnplainanti {pve* dh;thtse»points? 
"0^ the ficst^they gave three receip'ts' Ir^fU' the C^^ij/Hc^ 

i^ the r^^t j^[;p^^]^i)ett o^.i|i}^r«ie. jqstjJneQts^tqjK^^eral 
lo^ dt land, i^nd amoag them the two Itti in dia|ui^ ia this 



COBUMBWS, JANUARY TERM, 1855. 2T 

Everett et ml. ex'rs, w. Towns. ' 

case. Thib is all the receipts specify, and this is till the evidence 
the coiqplainan& gave of the contract of purchase. * 

Ifow it is true that it is difficult to account for the existence 
of these receipts, ^xiSept upon the hypothesis that Everett had, 
by some contract, purchased these two lots from the State. 
But, then, it is equajly true that there are ia thf case some 
other thiftgs Vhi(^ it is as difficult to ao^ount for, on the hy- 
pothAistthat hp did purchase the l9ts, af least by any such don- 
tract of puilshase as the \aw allowed of. If he pqrchased the 
lets, why did not th6 iX)mplaiiAii)ts Aow the certificate of sucii 
purchase, giveij to him at the time of puAhase by the Sneriff, 
who, as the State's ag^nf, 8old4iim the lots? Why did they 
not show thrf return <Jf the gheyiflFto the State Tre^ury, ^^fiiclf, 
if he, Everett, had been'such purchaser, woul^ have cpntaineJJ 
a statement of thai factf If Everett purchased ubrl^r any 
law authorizing Mm d) purchase, it is to ?e presumed that th% 
certificales and the return both exist(-^the cei^ificates in thi;^ 
poss^ssioti of the complainants themselves-^the return in the* 
poesessioii of the ^readurer of th.e Slate, an(f so within* th^ir 
reach, fbr evidence — ^for the only law existing io'autlJoriz^ him 
to purchase X]^B lots^that is,* to authorijje any sale of the ^ts, 
is a Hw which requires the Sheriffs, * i^hoee duty it is made to 
sell^rach lota,. W* give to the purchasers certificates ^.'^statitfg' 
the amount paid, and the a^nount of such purch jise mo^ey tlien 
due and to be paid, in three ^qual annual instalments to th^ 
Treasurer d^ this State,*' and "within sixty days affrf rtte* 
sal^ of Sfid lots,'' "to make a r^rt of their jjroce^in^ t(j 
the Treasury;'' " pay oVer to tim the money received, ahd' dft- 
posit. a schedule of the lots sold, the amount of *sale^ c^h ra^ 
<»ived, ^balance due for <^ficKlot and from.whdb due." {I^auK 
Oorjf: 270, 266.) 'ilnd it is to be presumed, u^itil tft# contrary 
be shoWn; fbat the Sheriff who sold this \6t to Everett, if ob» 
did sell it to "him, did* his duty, and so gjve Everett a certificate 
df purcha^, arid made a report •f that fact to {he Treasm-er. 
Besides. Wiley Williams testifies^that the Sheriff, who, if ^nj.' 
mtist have been the one to sell these two lots, if they wcrjsola 
according to law and at the time when 'k^ alleged* in the bift* 



28 SUPREME COURT OF GBORGM. 

, 1— • . — 1 

fivereu et al. ej'rg/w. '{'•owns. 
— \ 1 1 

tl^y w^rcT sold, viz : in 1828 or 1829, did give pertlficates for 
all the4ots which he sold, and did make a report of his sales, 
&c. t^the Tt&surer. Williams testifies that he hlitself wr^te 
the certificafbs'in blank, an^ that the Shieriff filled them and 
gave them to the porchsCsers. lie says, the Sheriff made his 
retifrn and ^ttlement fop the sales &t th^* Treasurer's office, 
or that he •did it for thft Sheriff. ' * * • 

Here, then, is matter from which a strong presamptjpnis to 
be jnade, that if £<verett purchased the lots, he had sr certificate 
of such ptirchase, and also •written evidei)pe of the ptirchase in 
the SBeriff's fettimte the. Treasury. 

If, then, Everett was the pucchadiel^ of the lotsf why did Ibe 
cemplaiQ^nts nbt* show these certificates^ ov show Some reasen 
for not doing. that? . Why did- they hot show«lhe return of the 
Sheriff, with the statemeflt ii^ it that lie, Everett, "was thjs pur- 
ckaser i WAy they Aid not do these jthiiigs is difficult to ac- 
count for, if we suppqse Everett to /have been, as alleged in 
p^ Ifill,! t^ puroha&er of t&e lots. ' * « 

But^this is*not^he onlj» difficulty. • How could Everett have 
ppfirehased; if be vi^not at the place of-siile, W ViUiVms, the 
witness,' says that to tKe.best of his rfccoll^tion^ £vere(t was 
net there? The complaktitits offer no proof that he hi(d an 
i^lftnt there. • •. • • • # , . ^ • 

.* And^this is not all : Everett, in his lifd tixne, in 1845, told 
Towns Ihat he did not V)wn these lots, and ihat he knew not 

ytkoiiiL .V . / 

Bat this Statement (of Everett' is derived fromAhe aoawer «£• 
^^wuA, ai^d is a statement which*, according to the argiiment 
of ^he plaintiffs in error^ is not respfinsivi to any alleg^tion*^i]i 
the I9II. Ibi that; hojvever,' (hey are li^staken. The bill alle- 
l|B8 tb^t B^rett^^'/^iiTf A<u«(2 of tUe 3tate oftOebr^a*' tlie ^wo 
lotf . It alkyes that Towns khew that *^ the lot/ had^eet 
Mci^t at^d paid«for by*' Everett. A statement ef what Ev^- 
ett, himself, sdid \nth r^pecUto his title, would be responsive 
to either of thepe allegations. • • • 

* Th^ result is 4hat there are things in the case which )t is m 
hard*to acceulit for, t>9* the supposition that Everett did pin^ 



COneMBUB, JANUARY TERM, 1856. 29 

— s . 

Everett et al, ei^rs, r«. Towns. 

cfaafie the lots, as it is to .accounti for thie Ttfhswcj receipts on 
ike supposition diat he did not purchase the lotsi And that 
is but saying that the evidenqe on one side of the case balan- 
ces the evidence on the other. 

In sucli a case, the discretion of the Court to refuse a spe- 
cific performance, or what is equivalent to one, and dismiss the 
hill, ought not to be disturbed. In every such case, the com- 
plainants ought, at least, to show a preponderance of evidence 
in favor of the contract on which thej^ insist. 

But in this case the nreppnderance is, if auy thing, the other 
way, for in addition to what has already been stated as being 
adverse to the idea that Everett piyrchased the lots, there are 
the following circumstances : Everett never took possession of 
the land— :never«took out grants for it — never, as far as ap- 
pears, okimed title to' it, although h^ had almost twenty years, 
witiun which^to do any or. all of these things, according to the 
statements in the biU j Ibr, according to^tjioae sUtempnts; he 
purchased in 1828 or 1829. 'And his executors, the plalitiflb 
ia: error, did not commence *this' suit until 1852: until after all 
of the purchase money had been paSd the State for the land as 
sold a second time — if it had ever*been so^ a ^t ^me. • 

Indeed, ^taking the bil> to be true, the complainants need no 
help frdij^ Equity. Their legal title,.th^y say, is complete. 
They siaythe legal title ideated in Everett, at \he time when he 
paid the purchase money* to the State. If so, what use is 
tbore for ihi» bill ? None. 

And I may say fot myself, that I^know of nothing that giveis 
to a Court of, Equity the pother to grant the prayer of this bilh 
Whence ditf a Court of Equity gfet the power to nullify an act 
of ojie of the depaitments of <Jovemment. . If it can nullify a 
gi^t* made by^ ^e Executive Department, why \pay it not' 
^uafly ntdfify; a commission issued by that 'department— a 
nulitary order made by that department — ^in a word, any act 
of that department ? If it can do things of tl^is sort, it must 
bij by virtue of some grant of power to it in the Constitution, 
07 in the law. I know of no such grant. Such a power Eogli|}i 
Courts of dSquity do not pretend to have. '''■ 



30 



SUPREME COURT OF GEORGIA.. 



Yoong, assignee, k^ tw. Harrisqn and another, adm'rs, kc 

It is, however, tl\p opinion of the whole Court that the Court 
below was justified in dismissin^the bill on one of the grounds 
on which the deci3ion was put, viz : that which has been tK>n- 
sidered — the ground that the contract of purchase was not suf- 
ficiently proved. 

So the judgmenl ought to be affirmed. And it becomes un- 
necessary to notice the other ground on which the Court 
placed its judgment. # 



* 



• 



No* 3. — Edward B. Young, assignee, &c. plaintiff "in* error,, 
t;#. James Harbisox and another,* administrators, &c. de-' 
f endants in error. . ' . • 



[1.] Where the owner of a parcel of groaodliad been deprived thereof, by am 
incorporated company, for the purpose of appropriating the same as a 
bridge site, an^ by virtue of a provision in their charter, an *appeal had 
been tliken fh>n^ oommissioners or appraisers to a Jury, and the latter 
were caUed npon to award just compensatioh to the land owner : - Ifdd^ 
that the value an^ damage, /it the time the land was taken, wais the thing 
to be ascertained ; but ttfet to discover this, the Jtiry were authorised to 
look to the prospective value' of the property its a bridge site, and to take 
that into consideration also, in determining what it was then worth. 

[2.] Where a portion of a land holder's real estate is thus taken trom him, 
for public purposes, without hi^ consent,, commissioners, or a Jury in their 
stead, may take into consideration prospective and c<$nsequential damages, 
which result therefrom, if the same Are plain and appreciable^ 

[3.] Upon similar principles, when endeavoring to ascertain just cfynpenea- 

tion, the Jury should carry to the other side of the account the benefits^or 

increase in toe valne of the land) to the land holder ; for they CAnnot j'tutfy 

award him compensation for an injury, if he has not beei^ injured, but bei^ 

cfitted. 

[4.] If an instrument of writing be submitted to the Jury l^ one party, who 

aflepwards proposes to "ftrithdraw the same, to which objection is made by 

•the opposite potty, who insists on its remaining with the Jury as evidence, 

tik exception by him; after verdict, that the same was improperly admitted 

as eviKice, will not be sustained. t . • 



COX.T71I^U8, JANUARY TfiBlf, 1866. 8^ 

Ytkniifr, assigiKee, kc vt. Harriadki aad 4nother, adm^ra, kc, 

[5.3. Wh€re an Act/ incorpfratiog a bitdge conipaDy, proridee that Uie A>ii)- 
puiy shall have pow«r to select and take such parcel or parcels of land as 
thcj majr de^m necessary for the construction of the bridge, from any land 
owner, and requires that a plat of 'the land so taken shall be made, alid 
with the awarif of the nppraisf l^ who shall assess the value of the land fo 
taken, (or the verdict of the Juiy,) shall be recoiled in the Clerk's ofiflle 
of the Superior Court where thfe land lies, and shall vest the right of fee 
simpk ^6 the land in the company : //<e/rf, that upon trial of a case made 
by appeal from appraisers to the Superior Court, the said plat should h*ve 
been submi^d tb tjie Jury ; and it was %rror in the Court {o rej&t the 
same as evidence for their consideration. 

Proceeding, to assess damages in Randolpk Superior Court. 
Tried before Juc(ge Pebkins, April Term, 1854. 

Under the ch^t^r of the InrintoB Bridge Company, they 
were authorized to appropriate the land.neces^i^ for an abut- 
m^it on this side the river, and a proceeding was authorized 
to ascertain the value thereof, in the event* of a disagreement 
with the owner?. Sucb disagreement having arisen, .tha ap- 
praisers, assessed the damages' al Ten DollarB. The defend- 
ants ih error (Harrisons) appealed to the Superior Court; ancF 
on the trial*of this appeal, the errors ^assigned *are alleged to 
have occurred. • 

The X7ourt decided the, assessment by the appraisers at $10, 
mis jtdmissible as ple/iding, but not &s evidence* of the Irud 
value. This is the first error .assigned. , 

Sundry exceptions wcr6 majJe to evidence adpitted and re- 
jected. They ar^ alliinclude^ {n the questions made upon the 
charge of tlje Court. ' . • • 

THe Court charged, that. the only issue was the villue of the 
land ; thht> the Jury were acting as appraisers^ and should be * 
governed by the evidence; that^in asoertajning the damages^ 
^ purposes for wiiie|^ the land 'is valuable, ar^ to be tak^i 
into consideration. . U ittwas te^kfn as'^i fridge site,^ it m^t 
be pfid for a§ isuch; and all tne sttrroundingcircumstani^efi are* 
to i)f lfikto*inio the accou^tj .and the jestiin^le of ^lue or^am- 
ages was it b^ np^e itoir, ifs of thewej^ent tinoe, whefi t^e'tU 




|2 S(JPBEM£ OOUBT OF QEi^BGI^. 

Toung* ' assignee, ^^/to.^BtariBon'ftnd^uioth^f adm'rs, tc, 

. Suppose, said the C(«irt, no* bridge bad beeit built, the Jury 
would have to inquire what would be the jjlrobabl^ amount "of 
travel, tolls, commerce, and the probable value of warerhouses, 
wharfs, towns, viHages, &cl to-groKf. up on the' other iside* of 
^e river, with and*without a bridee, in order tq ascertain inm- 
ages or value as a* bridge -site. Tne bridge being b^ilt, the 
Jtfry were nt)t left to suppositions — but evidence of these things 
had Been iaidmitted {q show* the eligibility of ^tbe sj|e and its va- 
lue ; and for this purpose, were proper for their consideration ; 
tl^at the Jury were to take into consideration ncft bnfy its value 
to the Harrisons, who did not own the franchise^ but its value 
to the company, who did own the franchise ; .that its value te 
the company was indeed ilxe propel* questioil for the Jury; 
thht in addition to this, the Harrisons were^entitled to recover 
whatever damage was 'done to their other pioperty — jto their 
private interest — to their other lands and interests— rthan tliat 
portiqn occupied as a bridge site. ^ Whatever damages, or inju- 
ry th^ sustained, in, any ^ayj independent of the ^fnages or 
value of, the bridge site, are to b^takeil into the account. *If 
their other lands were valuable for ware-houses, wharfl and 
towns, or* for any other purpose above and below the bridge, 
mud tfiis value decreased in consequence of- the occupation of 
the bridge site, they^were entjtled t^ just compensatioii there- 
for. * ' . * 4 • 

4 

, To all and every*part of whith charge Young excepted. 

« 

Counsel for*Youfag then^askc^ the Court, ift writing, specif- 
icity to charge the Jury — ; * , • • . t 

1st. Tlftkt the Harrisons are entitled to recover the daxfaages* 
*or value of the land as a bridge site, to be estimates by its 
^nditiou or f alue^ yrhen the Act of incorporation was. passed, 
or prior to the building of the^ bridge'; yhich sp^ific chamt 
4he Court refused to gVe, apd charged in Jieu thereof, that^^ 
damages or value w^s to be*estimated as of ^he jfres^tfimej 
wdjdhfjs/Jiiry^coukl look j^ aU the itiatters before Stated; pdbh 
as aijDOitnt. of toUf^ recji^sd^ cMqi^^ ta ottier^irit^rats, value 
to the cpmp^y, &c. for me ^q|)OBe of a8cerM4^iP'^^^'' * 




COLUMBUS, JANUARY VERH .&•& 

^ i— J 4—1^ ; 

T«<ing, tunlgjuttf ^. Tt, Harrison ^n'd Rnotb^T) adftiVtr, ^p. 



Tct which reftsal to charge, and charge* as given, Yoi^ 41^.. 
oepteS. • • 

2d. To charge the Jury, that saidi ditmjiges dk* .valoe j^ fo 
he esliihatea without taking Into C(fti8ideration the^alffe of th^ 
bridge and. the amouift'pf totlsreceire^ thercion, wbiob^cVai^go, 
as asked, the Court refused to give, and^a^e mlieu^heredf — 
that the damages or value^vas to«be 'estimated* ^ithotftttaiing? 
into c6h8ide#ition th^ cost of bridge,' but iii prder tQ arrive at 
^em the Jury ipight' tlike'into 'consideration lle^Hpounl^of 
tolls received flpon tife bridge. i . 

3d.* To. charge the Jtrj, that said ^amag^^s or value is4o be* 
estTmated* without taking into considera^on tl)e francliise, or. 
the tigbttto build and have ^e bridge. ,That labile ihp MinSl^^ 
to the land was in t^e*' Harrisons,' the* fi'anclrlee or 'richt t0" 
build the toll bridge was in the State, and there remain! d,iiiB*<* 
til the Act, of incorporation conferred it J^on the Bridge Coin- 
pan/, and ti?dt said grtfnt to ;the company dt)es *not, in 14w/ 
enhance the value of the 'locati<fn as a bridge site to the HaV*-* 
ifaots. t ' , * . ' ■* 

■ 

Wnich charge, as asked, the Court refuged to^ive, an4 g»ve* 
in lieu thereof, that the valu^, as a bridge site, waft to be, es- 
thn^tefl by its vafJe to the Irwinton Briflge foriipatiy; and 
thai foV the'purjfes(j of arriving at it the' jiirjr mlgh't ttike mtri* 
consider^ion the franchi^ to the compjany.* ' * • ' 

4lh. To charge the Jury, that the Hftrrisons wcy*^ ejrtiUejcf 
to recover the damages dr vaTueasa bri(^ge site, and f^r all 4ihei 
purposes tjx which tjiey Coul A appropriate it,texcAt and«ir?es- 
pective of the franchise ^r right to build the bri([^. ^ 

Whichlchivrge, as Risked, the Oourttefvf edto gi^e,^aM]>gaw 

m lieu thereof, that«its value to ^he Con^p^y was to be estimate 

ted, and that the Harrisons were .entife)«<jl to recover as mtK% 

therefor, as though they had thQ*ffane))ise. * ^ . 

• • • * • * * 

5th. ^0 charge the Jury that the Qarrisont had jyiit}i<>r th(|^ 
right t^ establish toll bridgos or toll ferrW a^d .thet^Ifdiie |hL 
Imllding oAhe one or destruction of fhe oth^*, doe^^mot m^r 




3* «OT«!EMH' C6URlr OP GEORGIA! 

* , — , rr ,- , „ _ : 

Yaafgf Mfia^e^f kc. 9t,fiapision 4nd another, adm'n, M 

sl tm* element of damages or value qndef the Act of ipcorpo- 
ratiJm 

wiich cbar^e, as asked,*the Court refdsed to give^;- and ga^e 
ill Heu thereof^ that if the bmlding*.of the bridge has in* any 
imy afte^edthe {^rivajtiok interests of the Hamsons, thej are- 
entiAed to'comi)ensatibir therefor, t}i(^ugh they did nof have 
file* right to build or establish!* toll ))itdges or toll ferries, and 
Ukve no right to compensation if destroyea. ^ • 

oth. To^'tfiarge fhe Jury, that tlfe increased or decl^eased 
value 9f the other parts of Harrisons* land, because of l^e 
V^Jiding 6f the bridge, ^qp ware-house, wharf or other puroo- 
869; and the increased or decreased value of the piiciperty in 
Ufaill^, i9 not to be t^ken into c6nsidera1;ion to* int^rease or 
diicrease the' danf^ges o» vsiltie of the land%)n which the bridge 
i^Auat* - 

Which charge^, as abked, the CouH refused to give, and grave 

V ia^tdu thereof 9 th&t the dec!;ea8ed^ yaluQ df any property, •no 

\ Biatter'wfaaf, owned by the Halrisoqs, was«tO'be takeH.mto the 

jiooount, as well as tha increase4 value of any properly to Ihe' 

««5»*?y- ... .* 

Tib. To diarge the Jury, that the Harrisons are entitled to 
mcoirer^ intMs^oase; the damages or* valuS of the lan4 ad a 
I l|ri%e sile, tod fol' aU'olher purposes not cpnUectl^S with the 
iranAhise, to be estimated uponi tht^ condition of the -li^d when 
f^e Bridge X!)orapany (•ok p&slessionli&ereof, and nAine pfof- 
fl^ &f its use in thef^ action, o^ ejectment n«w pending, as de- 
oid^^y t&e.Bujireide Court, in the caseVepOrted in 2tKd^. 
"Vliich change, as asked^ the Court SjAnply Vefiised to give, 
ohi^rping notlnng in ^eu j^hereof. 

%tn.* y5 (Aaijge* tl^ Jury, that they should onfy pve such 
dy^ages to the ^aitisdns as ttiey shall ihink, from the evi- 
dlKice, t&ejr woilld ^av6 givep, fattd they been selected to ap- 
jpraise the land as a bridge site, giving just compensi^Uon \dth- 
(M extai^fidn, knowing thlit the Harrisons had norigliMjp biiild 
i^l Ifriage at the nlacj^ * * * • , 

' 'VUch'oharge Iras giten. 
M. Vcf tkarge the Jury, Iha} they most leave entirely out* 



COLUMBUS, JANUARY TJBBM, 3«54 95 

: s : * , . • iL 

Youii^, assignee, ttc. vs. Harrison and anoth^, adof rs, kc, 

, : < ' * 

of their computation the v^lue of t^e franchise which ir as gnpp- 
ed to the company. • * ^ 

Which charge, as asked, the Goujrt refused togive^apd gave 
Jin lieu thereof, that the ^lirj could ti^e into consideration the 
franchise, in estimating, the value of the bridge site to the cboi^ 

• lOth. T« charge the Jury, tbift under ihe Act of incorp'Qr^. 
tion, the dapages or value of the site to the « Harrisons ^tat 
be estimated, and n(^ the yakfe'of the site to the compny. 
Which cl^ar^^ the Courfr sipply refus^ to ^e. . 
. llthV To charge the Jury that the Ij^arrisons twd bo ri^bt 
to establish toll ferries or byiild toll bridges^ vrithqut* a *g^ant 
from the State; that the State, not having grai^te4,8uch rigJ^ 
the^ Court and« Jury •cannot ^%onfer it,, either ii\ th| .slmpe «f 
tolls or in any other mode*; that they (the iHrrisond) ai;e ^n- 
ti^tled to just coiApensation only for the lanjj ap^q^ly* appr^* 
priated to the use of the bridge^ and*that in ' estimating siicb 
compensation; ^n thctuses or purposes to which tliat ^hd, a^jl 
that only, could be appropriated, are 'to be t^ken into Ihe ^c* 

count. ; . • . " 

T^fiich X5hafge, as asked, the Court refuie.d/to give, tmi 
Young, assiffnle, then* and ^bere excepted*^ ^qb^gptdr e\^ 
of said sf^etmc charges, as refused 'to.be given, anl to ,eaSi 
and every charge ^ given in Ifeu'thCTeof.- • , ^ 

^e 'Jury returned a v^rdict^of ? J3,t)07» 00. 

A n^ trial w«s moved on ^11 the exceptions taj^en, ai\i, al« 
so because the damages*' assessecf were ^cessive. ^. The {^efli^ 
tOigrant li new tnal is also escepted (o. 

On all the exoep^on^ error Ifos J!)een assigiied. 






f . • • • . * • ' #' ^ ■■* ■ 

Judge ^^EimiKG having, been of Counsel u| 'this cad^, iiA 

jiot.presidei • ./. '; ' • * . . ?r ^ 






»«. . i . t ' ». 



H. HoiiT, for plaiptifl^in |rr6r. . ♦, 

^ JoNps ;• L. Warrij;;!. for defencfant. in erior. 



m . S¥,fTCEat|! COtl>Iit OF Gt lORGIA. 

t^Oung, assi^et, &c. vs. Harrison and another, a<Un|^, kc, 

1j 1 . 1 ! . 

By the Court- — SxARNps, J. ^eJiyeriDg the opinion. 
• . . * * 

' [1.] The main question, in this case, arises on the p^int mad^ 
as tP Ithe proper measure of recovery for the lantl which has 
been tak^n froo) ^hcL intestate, nvhoQi these defendant in error 
• repi;e8ent, bj the Irwinton 'Kridge Cqpipanyj as a^ite foroiis 
^ the abutments of their bridge. , 

The Act incor|k>rating the* OoiQpany, pirovides 'that jihe 
*^ damages Of vaTue'of'^e land re^oii^ed by the /corporation," 
dUall be ascertained hf appraiserbj or l)y a Jury, ppqn appeal 
to d^ S^P^^Ot Court; and shaljtcgnstitiite the compensation 
of the l^ndhol Jer. This provision is^oot very ^ xpli^it, but we 
thin^ lhat«it was not intended to Conflict trith the principles of 
the Common Law of ibrce in our State. 6r with that feature of 
the Federal £!onatitutidn, if it have any thing to do with the 
ease, fequirin^ that "pri>%te property shall not be, taken for 
public purposes y^tbout ^^^just compensation." •'^Ye think thrft 
ibis provision of >tbe clmrter was simply.intende^ to' dec|are 
Ae method by which such just compensation sl^ould be ^V^ard- 
^; ^^ thl^^^ only trua measure of recoicery in Qm case is 
tbait wifi(])k aeamr^ th&t bompensation: The simple inquiry 
fdiould b^tl^n, liow cdiaU^uch compensation be ascerlained. * 

I^t us look atf the questibn^om this pq^it^of view, an<} we 
w^l readily see tllat the lai)d«ofrner in this .c^e» cannot get 
eom^nsatioh for the* depriyati^n ^f this piftrticular* piece of 
g;pgfund,*pni|3S8 he xeceives, in!bhie ^st place,^what it was wyrth, 
to him, as a orldge site, qr its equivalent, at the time of such^ie- 
pi;^v«tiQn. . Bjt to;determine what it ^a^ werth to him, we nyist 
lo#k to^jth^ Mrcumai^nt^s gf* the jjase* If be owned, the Iiii|l 
tut half a jnile sn ^one side of the bridge ^Jid fpi* a gt^ater dis- 
UjSie oyihe.other^^wd ii^ con^uent]yi there Was no eUgible 
like vpQp Cbe lai^<of any other p^^soaoppo^t^ to the (own\>f Bo- 
/auk, (8m<l tbijpe ffl6ts arc started in die testimony) t&en, up(m 
l4e simple principle that supplg^ and aemand rc^vdate the price 
of any given anrticle,*a bv'idge^dtd * upon his l^nd was woM 
Biofe than if tAs Mip]^ly had been gr^atev, and th'efe*had teen 



COLUMBUS, JANUARY, IB^I, 1865. 8J 

, 1 9 u, : — 

'^oang, assignee, kc. tw. Harrison and another, admVs, Jtc. 

■ , — ^ ^ 1 — 1-2 ^--: 

Other ^localities ujjoa the lands of other persons WhicH might 
havf ^n procured for this purpose. The Idn^ on 'which this 
bridge jests, in.sach a case, would bewofrth more, of course, 
than its v^e' for agricultui;^ purposes. It woul^ have a par- 
ticular Talue in the market, as a site for one of the abutments 
of a toll-bridge — a value to be regulated according to the ex- 
tent of the demand. ' * ' • 

It is Chen necessary to ascertain the extent' of this demand. 
If the proposed ibridge Vas to be con^tcncted upon a highway 
over an inconsiderable stream, gne not navigable, or upion a 
naAigabTe streatn^ at a place wher^th^e were no improvements 
or prospect df improvements, in the sl^ape of a town or villaj^, 
or place of trade andbf shipping produce^, the site of the bridge 
would be worth %nAch less tp a company proposing to construct 
it and procuring a charter for this purpose, than if the bridge 
was to be .constructed over a na^gable stream, one oa whose 
bafks there was the prospect of a thriving place of business 
^ringin^into existence by the aid of such a crossing place ; 
and tlrus attracting m,uch trade and travel across the br}dge ; 
^d it is plain that*t)i4 ^te of tb^ bnclge, in the latter ca3|9, 
'Would \fe intreased in value, solely because tho bridge would 
he moie vliluable. * • * 

'We perceive at once> therefore, how important, nay, how 
necessary it is, where private property is thus ia&en fron^ a 
citizen (who hdds^it ip the mar)set«as a bridge site) by a char- 
tered company, wh'd taEe i( from him avowedjy for public pur- 
poses^ but also by erecting a toll-bridge to enhance their own 
gtuns and profits, that in order ;to ascertain the value of that 
pi^oe/f*ground to the owner, and thus give hjm/^just compen- 
ttlion" therefor, the value of tl\e bridge as a toll-bridge to <the 
company shoul^ be^ascertained,.^, possible, or ' {y)proximated, 
l^ ascertaining jt^e character of the stream and of tlie plate of 
WM^Ak, the amount of travel jtnd transportation which would 
prQbably pasd ov.er'itf and.the co^sequen^ any>unt of toll which 
would be ifeceived yearly. And if the effect of constructing 
such a bridger^ould l)e to build a large town^ warehpuses, &c. 
at <H* near the ^lace,«and thus attract much transportation and 



1 



38 SUPREME .COURT OF GEORGIA. 

' p* ■ — 1 r-^—^ 

You^g, assignee, Ac. vs. Harrison aqa another, adm'rs, kc 



traVel across the bi^idge, {his of course would make it more* val- 
uable to its proposed owners— rwould make U more to tlieit in- 
tei;est to pay a higher price for the site — that is to say^ w)uld 
be to' increase the extent of tjie demand for the bridge sit^ 
In such case, it would certainly be a great hardship, not to be 
tolerated, in a free country,, if a citizen, owning ^ piece of land 
of this desoription, whose prospective value, derived from its 
situation as anordmg facilities for a bridge site, was %s ^i}fick 
his property as was its soil for planting purposes, (it may, in- 
deed. Have teen purchased with reference to such value) could 
be compelled to part with the same, and forced* to give up )m 
property in the prospective value of the ground,* and receive 
only its value for agricultural purposes, or its value as a bridge 
site on the day when it is taken, estimated, l^ the trade and 
travel which would that day have passed over it if the bridge 
had been built. Such'could#not be a case of ''just compensa-' 
tion// • 

It is not difficult to see t^t such prospective value ^f a {)iece 
of ground mi^t be its chiel[ element of v^lue to its owner. An 
owner of land, peculiarly situated by leason of its proximity* 
to some great city or^great work of internal impro^vement, mtiy. 
look into the futur^ and see that it will, at some distant day, 
become extremely valuable by reason of its sitiiation, and that 
none other 'can be procured for the purpose for which he anti- 
cipates that it will be neected/ He desires, accordingly, to 
keep ft,* knowing that it will bfe'a fine properly for his children, 
if not for himself? If deprived^ of that property for public pur- 
poses, and especially for the benefit, at the same timet of «a 
private company, can he have *'just compensation"- ui\liess ref- 
erepce^b h^d to the prospective value of the land, and unless 
that is, to some extent at least, *takerr into tlfc account? • 

Let*us prcseift an ilhistrauop : we will suppose that* soon* 
after the depot of the Central Rdil Road & iJahking ClynpaEy^ 
was ^stabli&ncd in SaVannah, the companjr anticipating tlfc* en- 
largement of their business and the extension of their 'road*, 
becanie desirous gf purchasings lot of* land •which lay near 
thereto, ovci' which to construct a turn-out, or %rect some im- 



COI-OMBUS, JANtlARt TEttM, ^1856. 9^ 

■ \ ' * > 

Tounff, ftfstgnee, kc. vt, Harrison and another; adtt*r8, fte. 

provepsent, which the interests *of the road requirisjH. They 
pibpoeed to purchase this CTound from the owner, and ofiered 
to^him what suck iots were ^orth in that part of the town, 
without reference to the road. He declined, saying, ** if there 
be other lots which can be had for the ^ame purpose, then I 
grant that I may be compensated when I get for my lot that 
for which you might purchase such lots. But if there be no 
other lot but mine whioh'will serTC-the important purports for 
which it is desired, and if in process of time the Chanced value 
of my lot, by reason of your road, will be a fortune to my chil- 
dren,' it i^ my interest {ind tBat^f my heirs, to retain posse- 
sion of my lot until its value is/hus enhanced^ And you can- 
not have it unless you give me "just compensation*' by takihg 
into YJew its prospective value, and paying me what it isVea- 
sonably* wort^ to you as part of your investment.** Wo«I4 not 
this answer have been founded in correct-principles, an^ if the 
Rail Road Company had taken possessien q/[ said parcel oT 
gfofrnd, by virtue ef their charier, would not any Court have 
required' them to give "just compensation*' therefor, by taking 
into ooDSideration die value of said property, according as it 
mi^h| be estiflMied with reference to the improvements going 
on in iti vietnity? * 

In liiis point of View, it was proper for the Court below to* 
eiiarge. die Jury, that in onfer to* ascertain the value of* tl)e 
laiyd iti'question as a bridge sife, they irould have4't6 inquire 
the probable extent of the town or village, th^ i^ount of travel, 
tolls/ commerce, and the pfobs[ble»value of ware-houses, wharves, 
&c. to grow up on tbe other side of the river. And for thia 
pmrpose, the testimony ^o this effect of the -witnesses, was* pro- 
perly admitted. The value estimated, should * have been the 
value ai the time the property was taken, what it should then 
sell for as a bridge site, taking into consideration th^ number 
of^other lots in the vicinity belonging to other persons*. Which' 
lAighi' be used for such purpose, and the probable value of the 
bridge to its o^ers when it should be erected. And such 
d^oiild have beenT the method of ascertaining it, if it had been 
toMfid at«the titiie'the 1^^ iras taken. Interest upon: die 



40 SFPREMJ! COURl^ OP GEOR€ttA., 

j-» T ' ' ' :: 

Young, a88igBee,*Jtc. vs, Harrison and another, adm'rs^ kc* 
1 7 1 ' 

yalue, Ut that time, should be Ikdd^d,* if the assessmeiit be made 
at a dati long subsequent. {Park» vu. BostoH^ 15 Pick* 2Q&) 
Anfl when, at a subsequent date, esf^eciallj if many years had 
elapsed, it became' necessary for a Court and Jury to*aseertain 
^at was the value of the land at the time it was taken, with 
reference to its prospective advtintages, surely no more accu- 
rate criterion could be found tban«^roof of the amount of tcUs 
which had been received, the value of the structure, &c. as it 
then stood. • . 

[2.] But there is another element in the calculation of what* 
wotild be just compensation to t;he land owper in such n case. 
If, bj*depriving him of this piece of ground, the value of his 
contiguous property was seriously impaired, that also should 
be taken into the account, in order to insure him just compen- 
sation. K, by taking this piece of ground from the in^e^tate 
of the defendants in error, and the erection thereon of a bridge, 
his land contiguous to it was depreciated in value for ware- 
houses or other puVposes, it would seem that Be or his represen- 
tatives could not be compensated for tRat which had resulted 
from the deprivation of this property, unless this injury wfere 
taken into the account. There Can be no doubt that this prA- 
ciplef is correct, so far as immediate damage is oonoeAibd. 
Some persons have hesitated in applying it to prospective or 
consequential damage. But we Apprehend that when the ef- 
fort is mad^ not a little difficulty will be foiind in discrimina- 
ting between the two, in distinguishing them or *tdlling where 
on4 begins and th^ other enda. Wc incline to think that the 
dimple rule is the* best rule, and that id. tested b^ the inquiry — 
can it be clearly and plainly ascertained that a pecuniary loss 
has resulted tg «the land holder in the value of his contiguous 
real estate, by the deprivation of the land in question^ And 
especially is tllis the bett^ rule, if consequential benefit to the 
land owner is carried to the other side of the account in estima- 
ting compensation. We will presently show that this Aould. 
be done. * • 

It will be remembered that the question, ts not whetj^eK^ or 
not an action will lie at Common Law for such .e(lnseq,ueQlud 



w * ■ ■ ^ ..*y • 



0, JlMmJLkt VMM, Ifl^. 



Xtmtf, iii) | ^ n„fa' di. If /miai^ u4 jiwt^, «4tai'n» J^ 



I * 



fe aabtebiakld, Intimf tbtt cyokl »pi hi keld to W«« ^ 
lAit^ WM ckme by wiAMty ^ ^^* i^it.,i8 to Ikii f>qgi| 
IM^ liMttreU frw Sedgwick m Jhm. 110, 111, v^^ 
l yf ttobl e. But (k« qMfltipi^is twlMtiier or apt oymmiarfooenf 
«r ■ppiiurt^ "Or « Jnrj Mtiig Manob (oftdtr a ftat^Urj mg^ 
aUliQA) fefpcMDlecl for ikf purp«M pf aaeertuwng ^ib Jutt 
^^p§n9iMiiei^ n& tjins* tmpower^ to loA, in^ tbe liaturri 
•qjiity of the aftse, dioiild take amcb qoosaqueBtial damage iiit# 
oq^iHfi'i<'mH| wbere k is plaio, dei^ite anj appreciable. , 
In a learned treatise ott tbis slibjec% to ivbiob we bf ye been 
feferrtd by tbe' Counsel for tbe ptaintiff in eifor, w^find lAik 
nk supported as follows : ** If damages are tbe necil^Sarjr r0- 
srit of a franchise, tbej aire always proidded fcr, %lid may he* 
■icniFlained by commissioners, whose ^^ty it is to take int^ 
aeMWiirtition prosp#ctiye as weU as iiimiediate ii^jUries, but no 
eempaneation is due for damages jresolting fjrom eztfaordinaij 
eSMee.'** {Am. Law Mag. ApL 1848, p. 70.) This rule is 
lai4 4ewn, teo, in eoe ef the casessreaj^ by tbe Counsel for the 
pbiatlff m ecror^ In tbe jcase of Coll^nder V9. Manh^ 1 Pick. 
4ffi, the Snfreme Ctftdrt of Massa^nsetts 8^ : wb^ highways 
er pdhJie steels are ^^rigbtfolly laid oqt, they are to be cob« 
mdared as pwehased ^y tbct publip ^f him who owned the sm], 
mA by the purchase ijie right is aeqmred <^ doing ^yery thing 
with tiM soil oyer which the passs^ goes^ which may render it 
.aikl oteyenient^and he who sells^ lyay cl^iim dauiage^ 
xmly on accooni of the yaine of .tkf li^id. taken, but for tbe 
^jaHnwtioiL ef the ^ue of the ad^mi^g \^ tfdcula^i^g xpoi^ 
tke Hmure lyrabable rsdoetion or %leyation of a street or road; 
and all this is a ^H^pcr anbjeet foi(ths ipqpiry of those who qire 
to lay OQt, or of a Jory, if tbe parties should deai|an4 



99 



Bfyeral de^Hoas, to this eSeet, by other distinguished Judges 
the United States, Hiay be. Ipund; and their roots are iB3ert- 
deef^y into the principles of natiural equity, of tbe GoBunon 
Ciyil Law, ainl etthe Ceostititianf In England, toOt skn- 



u fHjpMnn 4(nnvp-4^ (moicoql 
t , - — fi J^iiiii — * — » ■ ■■ 

fear 4edi0(bi4i hsvd t)«^n mafle-^^iMfie «f llMii qdle i fi M ^ 
fft'a^fMr I win bsdl artDendoh. By ^e T-and S TMi •.-5t| 
tbe HtA Bock 0>tQ)any lr«r« ettpoirer q fl' to iaha -<MMrfi 
hm8% and in deftnlt of agreement ifUA the ^wnavt, 1^6 AM 
^rottd^d that ^he pdr<!li^t8^ momey add eottpeflsktioii ftr 
i^6b Ukitainedy b^fbi>e tke tiifte «f inqiiiry^ <9r* future 
Were t6 be assessed by a Jury:'' EielA, ^ thattiiese ir«rdB wsrt 
large enough to indtide compensatfmi to a land ownor fir Ion 
irhkjh Ee would hav€f to sostaih by giving mp Im buiiiiesB m^ 
brewer, nntil he codd obtalh odrortsokable ptaDiisaslbr ^w^ 
h^ it on." {Jiibb vi. Jtutt D. (h. ^ Q. B.) 

See alfo Xat^retrtre v$. Ghrtat if. Ji. Cb. 15 JWn 66S. Jk 
^ W.'tnd. D. Co. ^ jr. J: R. Co. v9. OhMej 15 Jmr. Ml. 
£. ^ jr. TT. JK. Cfe. w. Sradkyy 15 JVif. 68§.) 
* [8.] Bat, upon simitar principles of jnsdee, if the daatagtt 
in snch case tesoldng slkniM be eonmdere^ so skooHthe hmm 
fit fo th6 land holder. As we hUre saggeelted, thSe prooeodi^g4y 
appraisers or commiteioners, or k Jnryin their stead, iipMiti|^ 
peal, to ascertain the jnst bompeiAation #m « had fae Mo t , it 
not the action bf a trlbonai organic and prooeediiig aiwleiiliit 
to stri^ Common Law* Ibrms, and Obnmon «|jtfw lig^rta 
Such a tribunal may, ther^lRyre, eten if no speoU pr o¥i ii » be 
made 1)y*Statute, to this efect, ocbsidef Ihe eqvtles of Ae mm^ 
and render justice accordingly. • * • • » 

9Fo one can dispute th^ strong mMral eqiriiy whifch dktaiotrthi 
t)ropriety of comsidering the advantages, lAAtk. die'laaA hMm 
has g^in A by Veaeob of his land hating |^en ^aken lor sow 
^n\Aio Werl, as'an ofiseiTtA tbe ilijirles. And if tiiif \m asMh 
rally just, and die fom^ of law do notobstniel, wlijdiMid not 
ihe award or verdict be fehdered acoordiagI>? 
^ Hhe teitus employed, and the eharacter of * die p r e t o alUg^ 
support the idea, that this is what is intended. Oompen^iMH 
\s the thing provided'for— ^^ T&fnptn9aii(rt^^'^^ pagmmi ut 
inonef/. And the tetm compeMotim^WemA^' ta have been aiA> 
>i8edly adopted. It is!»oi»oired f^^ the^Cliftt Law, wh so u to 
use and signification strikingly lavor the view we are odbori^ 
tiyg. We kHOw^ too, that damages for a civil iigvry night be 



ccMAmkosi, 9^jin[AM^ mof, 18S5. u 



— „_• — . — u . 



tlPH^iitidl, * ^etAU m an ^gH la some lt«to nt fh^ CM. 
btw. <JfM. ^ Ifi la A 49 09r/tpelk$.) *^W1m% then, ^ 
iMi $t^mimdrem^fiay9k ix tbip Oi»»ftaii Law fM <^e CoMtltif- 
lto«» lo «ke ^MT kt\]fieslio]i, -the ^ebm&piktt 1l that it Wat 
•m aMMl79«tta^«» iMdifaf \AM fh kft^o0t*feika^ 
ligtf Mttfcf Ihair1|t#a8 ^isrtAff hrteAck^ thife '*i>^oii!^s'e '^ 
•««MlMw^a^eiMii iHlie^;#kei!4^ tl|a4^t<^e'Unel t^6I)- * 
tPf^ ltiat4ay» i » i ifi<» m i o * %t8l>^^rfred/lt khaiAif te m»tk 

Aifj^Mi «iQik^ « «»'elnt(<«e ^Ih^llpiriMJkJ, bpoi hU lAn(^ 
i*«MtWj•i»kM«IM^I^1lla^!l»^14kKll« tu)« id {Mil lib 
i^ MftV^M^I^talftiMV tli^ccktint of ^cl^ 

Sii^%MtoMi of'4ikiln|)€tfc4t*^Cir]^ atlj^ffleedifted hi tnt'*§:)ma 

» \«lMr ^ IkVf ViMa4t 'r^mO, addH 
^ en lUMtt^Mt £|P A^Nl^Uj^ fionrfl^red aaA 

^tiMiMrqp for 4iff U)^ dUBJkMi^ (Tatib^ 
br'^AMM M »y ijA^J M> ^< 9e«» bbf ))f(;<9eei 

^ dH |i e e »^iaig*> *1^ take Into ^t^ldera^ 
tk^ ^i}ttmtli%B Ir^ U lfte'panBAge# enstaiuec^ 
IM 'VMMf^ df fBdctORity by othef rules ibhfL 
ivUeh go^erti Coofli of Law. * Bten ff ftie oi^esiion jjT 
iiMiilhMt W^iAmHle*^ d f try^'^e;^ act it ttie ckaracter 
ihiMMlM. lAtfA^eltiniBfef damages afeac^i^poli 
ly 4 Mrf ^ tMubBflrion^n, liley may Be fegarded^ adtaiinia- 

i4 Aiiiy Jtfa^Mii8Bi|j ike ^hadfetion os'tlie sovereign .oar 
•» (^«^. JWt(;\!l%. 4p>1 184$, y. C5.) ' ^ 
Wcr a pp fclfc i ^ ^kut lAih^h eatbelf com^ and '^ the 
OmM-itIm iM^e keM %kafl ihe latid heMei^* n^det tbe require- 
IMM^^h^ OifiMMSoir/ditafd'be paid For Ms land in f^onei^ 
ipBfoMAj the Blijpteiie Cband of Eetrtttck| imd l^nnessee^ 
lMif« lort^U «rike aJMre AfMide^tim. ' ' 

It is «ometlaib»«ai(| Ihkt^A^ b^it^ iMifeii %i (Llahd hoI9- 






dir firQQji ly piibl|0 ,^Qrk,, for tke'l>e«eSt-*t>f iriuih ii|» UmmI 1^ 
k#en t^e^i fikoftld noi W ooiiai4ei«d esfc^l^ 8<|;fa^ •& ihej, «9 
><}Tratagea |>dpili%r to kimnfHt (iMi tbe 4R0«^» of • 4Mtitta SoT 
^temple^ wm«h eohan^ Ike miuo of h«i l%tcl^ jmmI i»#t •i\jflgr«' 
g4 by other Ut4 cffmwrt ^ouii^ieqt Wjtfi4 jiipiotiiiin* ■ 9ft 

(Us ttQ9t IqgWalr . Wltoi mcttan*!^ tf #iluir9h»7t Umi W|0>^ 
ftto^? ,Tbry wt tihM|i»o iyofr iri»k thopo wi»< iiiw»ini^ 

^K.iasoe» ^iif^ j^}miitm h^^inii0a^4^^.^ 

f 1 18 Toi^ tariit IM ii|» a^kkM •f J^^ 

iida ify la its xkaterOykdV very yriiiso^ AalvMt 9f iiW 4l)pHii- 
out n^n tfit'apoMmit tyi»ioi|L if w«tin pl i $Mili4iii»iio 
jp<4 Qt^oi^ if ».v^ )^lp foiiipii <if (jh rt l^ii i iw KMi <pfc # 

W thiB proyijuM ihrt.^e i^mt^M Aa l)M(i hjlJWI iJliH >i 

1b«J^0 In hta Uy^^ if «wj».*8baM.o«8(ite|B Ail piiig|^H¥yirtw» 

.^as it^ place ip the cbartet of alm(^ if not ^^ifi-^nty Ml 

Itoncl pr Pl^k ^4, vhi^h Jm9 Wh ii|i<9CfM'4t«4 in owr S|M». 

^. Ift acooi'danof vkb mio]i vioiHLO#.wt iH»e jirt KNPw4rt>/^t 

te8kimoB7 Vbich mws aduutte^ bj th^^CWt iiH^^bo ynniojc Kif 

^QVl^2 the jalp^oif pv^porij ii^ ibo ^^te of liiliinhgin^ j^ 4i 

yiftlae of the brid^<^ yis:. of Seab^ni A* Sodth^ •^if^tkm Hyu^ 

of it aa related t# ihe ralto jof a«lIi;Wf '• Frt)|Mp» (i|«A tkit 

^iiM propoi' as 8enfii)|( W ik>w vkj h^ npy^ }iai# J^^ vdKng 

V Ul^ 1«^ (^*^P ite. rfi4 Tilno^ for lA^ «)|4 m^ fiH^ th»it fc »» 

neot of the t^ri4|(e rf ste^ ia Ahbwui^ tjko owdono»<irf)0|o^gi 

'W. Vo^t)oll,'tbe ofidoxice of Qe^rgf l^ *Bany of BcMy L 

%jIor, ot Jdho R. 14- Keo)^ . mA $hi^irooov4« ff Ae<ittfmr 

CooFt establishing ^ 9^ ^>e^ ^^Vf^ f^^ffiUni* 



I •ong, assign^y ^ mi HarriMa «i4 «Ki|ber, aarn'ra, l^e. 
■ ■ ' t . ■ 

. ^(4«}. ^Ikt ^MdrftiRia of iWi ^b#A#f Sbth Lore, lh« reoQiA 
iJbiWi iljtitiia 4iMB Mtck by Aft glwQliff k •eror, tlie d^fMi^ 
m^ nlfcij^g to trithiktpr 4m> smm from4i^ Jopy* aa dvidoMCk 
It would )>e Verj stnuigey indeed, if, after an objectiou of tiaii 
Kind firom t^plaintMT in error, he cotUd be allowed to take ad- 
Hntage of an J error in its admission. If the deed had been 
knproperlj adfiUted^ and the plaintiff in error, apprcAiensiye 
thai the minds of th^ Jury had be^n prejudiced by having seen 
d^ deed, dewed to take advantage of thisy by way of ezcep- 
tkm, he should have permitted the deed to have been with- 
drawn, thereby sanctiohed the position that it was imp? pper, 
iMd hare avaife^ hinlself of hj^ right to except lo its admissioh 
at alL But as the pioliit is presenflsd, thcT record exhibits tbe 
plaintiff in vrror in the %ttit«de of objecting to the withdrawal 
ft a j^e oC testimony} insis^iftg^t^at \t 8ho|dd remain with tlw 
^j/arj as evi^moe, t)i#reby iiaqct^Qing the idea, for the pir* 
paiea4£th«jk itaM^gMMi^^ti^iiBvy, tkil it was evftdenae ; 
And afterward^ objecting that the Court eired is p e ngiit ing 

l^tbgoatto'JurymiiiMh. •• . . 

In aoeordance with the principles just hid down, too^ tfce 
SiMtAi of die CoiO't, as IriT 'dhd^r^lMf it, wtien (^mstru^willi 
r^fipreftc^ p> tjKt cimi^ mad«. by tb^ evio^oo^, wjis.f^ (be mast 
part substantiaiiy iitrnl. • Has'BoAer was A»t exactly ae^tr- 
aie, however, in saying that '^ the estimate of value or damages 
wA la ba made, now^ tfs of the prewn^time, wkem the iitle is 
to be divested,*' with#iUnflcifnlly qoalifyiag ibis, and shf«b 
img that the circumstanoes of present value, &e., might be con- 
94er^ bttt as a critefbtt of %hal was the prespiotiF^ vaWe of 
the land, and extent of damage, &c., at Ili»tee whtaihi^-laMI 
laii^iktnJbjthe eoai|Hmy. 

pbtefMMgioilidar^iMenM'im Iks case.. SUeiamai^iiigp 
mMbtMropar <fiden69 hy tfti AolriiMorperaljiic saidedtopaay, 
mniaeffmnA lohefil«daBMsll>rilh the v^irdiA tf the foy» 
And^lriAoul'whigi^ tbtre wits'se ^ci&9 evidence tf thi 
lyidH^n^ bef era die 4«tfyt '^ ' , • * - ^ » 

' lUe apfmmla ba sHJedynnasiiicsl ei^^ir. But ffmAKg 



• . . 



46 gupQvtts ooufiT or 

X ^ 



I M j im m L mmkiH. Ooihm. 



hMf$ it is stmeo^mry M) pvliildttii^ iw «re M» altagtik* 
ilfamibflM,' that it jlp^m «*• offftaUa^ XoMsA$im 
tsA for a re-beaiiag. • . / , . 



/ • 



» • ; !> » 1 ■ ■ - < ■■ * . g 



• 



• •• • • • . 



» 



Kq. 4.^i^EDWAfiD MoLYifEtFX a^ others, plwftiSs in error^ 



« • 



[\J\ Bs*efit to the cvedftor or mjary to ti^ debtor, will eiih^ constitute % 
'^sufficient conslderliti^n to svppiovt m iftw contr*^ Ift^t^een the paMet. 

[2.1 The doctrine W gone t#tlie ecteiikt ef beMtilf thai thi Ifftll po^MII^ 
^ A benefit tb tb# cM^tois^ «WM*it4b Iwitti^ % <— » ^agiUji^m .fc^^ 
««iMhi»aii4 4U4ebt9f^ . «# * ' ' ^ 

(3.] Ordinarily, satisfacUon, in whole or in fftH^ » A 4^ 04^*^ «h«wii. «ft 



,*^^' * • ' . * » .^ * * 



* I. 



(4] .Ulirr^ pvveQt Q^^n esecotion i^icoppllfated with eUier A^tert, 8nq|i 
as discorery, to ascertiui^who wA ike true ewner oi the jf, fd, at the time 



'(hemotK^%asHid/iTeiOftteS(i«i1^Miif tfeccAra^'ftt likt impJbey 

16 aitoiaiilir' 



^^iktCouit wM i)mtn|«Hiiimiw 16 altoiaiilir MttiT sJm; 

In Equity, in Doagfawtjr Sapttior Obuit. DModon on da* 

.. • • . « 

TUs UU «« fiisd by Ckoig* W. Oofliir, wdjallagsd tW 

Collier, Bracewell and St. George> vataml intt a pMmm- 
iMf, tor M imriufce <f i w w ih i Mti ii ng t gwtiawitt*, t^<er 
t(k«tw«f OoOitr 4 BMomralL !Uifmid McijMw n«#<, 
•TCd.j«igiMii» «guMt OtlK«r * BkMMnil, iritk St. <Mii» 
M MM^ <m tke afpenl, fbr 4StiM0, uMi mIerMff and ooMk. 
Tike ftrm «M iisdvenV aad tbe pHteen indindaatty liable 
wer4 iA donbtfal^ if not insofarent riraaiotamM. Jaha ^Virfar 
1^ a f«U khowk^ of thMtfaiM^ pwekiMd dw5g./«u Aoto 



coUMBiy, MXntars nm, iw5 



^•ii ■ •*■ 11 '* 



,4-^ 



lfmyvbvi$i*€t &L ft. OuMcl. 



oflfaeBMli •! H««l(iM«lK m«t a Itig^' ttMkhoUlkr 
tixerein ; and as such, ^ntroled lajge JU /$$. asd vocigagiB 
against fiK. Gaafge^. 'Bgat oi naB. b^d poaaeiMii o( sqdm pro- 
perty, but there was a QlouA^tfreff kii ^Ma, i* being dilmelby 
his son-in-law. Collier, the oomfhitimi^ was inaokefit. , Un- 
^ Aesd SMBinMiiMlk sftd Jtt Tiew of tiMse Ut^tt^ Bawls pro- 
posed to Collier, Braotwell and 8t George, that if each one 
«f them woQld,4rQin hja paraoMl effbrisaad yearly la£o^>pay 
to him one third the amount of the said jE./a. he would leieaae^ 
wmd disdkasge t^ ese sa conplyiag with tjus oStf,*freiil all 
&rther liability thereoik Collier and St ^<tigtb each coia- 
pKed with Ak propoeitioa. BrsMweU fisiled to eoolply,, and 
in 1840, removed beyo&A the Unils .of dhi Stat^ oanyUif wtk 
him the property, negroes and atodc in his ^poss e ss io n, Rawls 
permitting him so to remove, without attempting to stop hm^ 
er to levy on and try the title to said property, against and in 
spite of the remonsti%noes of CoUier, and hi3 earoest appHl to 
him to levy thereon. 

Rawls died, and his wi&4md*0. Taylor because administra- 
tors itpon his estate.* With a view to defraud Collier and St. 
C^rge, die^said^<)ffpinistr«tors proe ured Molyneux to timsfer 
the said fi. fa. to the Merchant's Bank of Macon, in whose 
*Baibe i» wi^ pvoceedfeg aithetime^f the iling ff the bill, 
haviiig been leviecl ftt pi^epipty as the property of OfUiar, far 
IIm» pa^ettt «f the rtmaiiping third due tberaaa. 

In the bai as erigiMlIy fibd, it waiuJlegsd that BraoemaU 
aaffied a*ay yiepsrty imply saSeieiyt»la pay the said ;/i, /i. 
Mi thstt Rowis pesmttted nk^ to teaoove. i^^ao amentefol^ 
4hi8 ale{(Mian:liaa meJlM at p»evls«8ly«taleii The wtteU- 
mittt also rilled, tiiAl 8^ Gteetge, although possessed of a 
ee nai ds faM e elMaae^ was t^erertholess iargely. invcdved; ssid 
t^BawkbelA a. l^ge claim against him ^ andif aUhia^his 
were pres^ agalBstliiflv be wodd haw proved <^ be inea}- 
vent. . • 

SMvhits af lUttSflgsges mpdM>ts^e*by St. Qterj^ were 
*«sMMatfld^t#^*ftiU: Che^smwiliiit wa^^.wkoy.^^ 



sfTPHBCB comiKr m •mmu. * 



1 ■ 'I 1 » * 



t .1 ■ ■ ■ ■ ■ ■ > 



HneBik^i Mgro, tkt prapwty' nf <l&i«i» Mi pwye4 dM*^ 
iPtt7MUili0payB(ieat^Mitbi)(.>li. wi • • * 
•The pmt/er was for sn*|i|}aMli9ii Mid geMrtI reKif. 

So tfaw bill a ckmuntr was llkd — . • ' 

IsJ;. For nanl of Eqvilj. * 

id. A botfpkte rtmedy at Lavf,«aB«lo tk(^ payiM&t* of the 

Sd: lliat the ceetraet set fbrth m the bill was withoat coi- 
^ aideratibii and a m^ie /)4itf^. .. • • * • • 

4th^ .Thai ther« is a'Tepagoaxiey in the atttteuenia of the 
bill and aoMsdmont 

5th. Thait there should have beem attached to said bill ei- 
-Ubits of the said tne#tgagte, debtt, ke. * 

The Court ovei^ruled the demiirrer, and .enor i^ assigned 
Ihereen: ' . > 

MoUGAlr k ScAvirfohovQMy for pUintafi 

Clark & Strozieriv for defendant. 

Jy tke Obcfre.-^LuHPKiKy J. dellFsrivf the ophrion. * 



{!.] A^eo t^ bai was erigioAlly iled, 1^ /^n^ltiHaat 
«enaidekied it his injberest to make k appear thi^ bo^ St* 
George and Braee welly his eo-debti^rs, wese sekreai ie 190%. 
And this €!oart was salisiedy wh«n tWaqise .srss o^ belore, 
Ikat (his &et was snff cmidy alle^ hj iht M|. Bmi tal^ag 
»iM!weiit.viaWiOf the iaw e£ tl^ ease, inm' that <nlaHaiaed 
hf the Gdbnsedorthe^akttpkiDaH'tW OMTt held AaViilK 
Tory faet thaf St. Chieige and Braq^elwrere $Arentf inatted 
'af constitntfrng a^gaed seaMo for sosisinijiig* the oo Mfae» em- 
ler«d itit6 betwem Bairls and CoUler, m 18M, wsa the mgr 
gnmnd why that ngreeaaetit coald not te ^^ioree^ Bee 18 
Oa. Rep. 406. 

Wdl tiM Ull has bew aaiM»d t^ Biaet.tyk kew iepM eC 
the oaae, M^tt Mr iMtesd4*t 




idiftaito^, jkNtvkiA MkH^ im. m 



aLfi^£XmtUk' 



■pi< ■' 



i(4»e9 inMlfeftt in 19^f Aild wimg^^X 

the aj^bi^ent, iffain]^ u^n t^tfkx. ofWhK|||^ dr 90##]M MMI 

bjl^ jSaII a/ ayiAidedT? The \faole aita^lei^ii]!^ jj^m^ em% 
denaedy aidOilhts, ii\ smbstaiuse, to thjs :, . *• 

That the4>roj{fcrl^.iy the.^&iession of JacB^^. BiMe«%U 
in },842y wohid Imve been jsufficion^ to ififv^ paid 6d€» thitrd i^* 
the eKAotion, althangh th'c^e vnas a'«oloud ov«r the fiUK j4 hn 
ing^plauDM by^I^<Q{«r jB/ Love {is th^p|o|»ertj of hV^'wifi^ tht 
dbQght^r of ^(j^Br]»cewell ; Hnd^ that Tfhea eoippkihiiftit $U 
leged, in Ij^^oiiiginql hil/, *t]mt' the property va^ mor^ tliam. 
anfficieift to paj;on^ x^ii of t)i^ flebf, ut the* time *Ilaftfe^9l| 
left the Stat^y b^ only ud^d'that tem 4e*;h«w, ;ole{^^ t||el%» 
wa& ^ou{ikjti}jp^j one jthirQ ; qpli furrh#r, l^al^^^hiB iaet jraa 
onlj^Ueg^ as an equity, predicated il^e^ t^ oonti^lctfnMdtt 
with RawFa) 4ho aff<eriaakiD2 tl^e sane, peraojitteiT BpateivpeU* 
t^Itave the cotmtv^ with p^trty in liis pesseaaiQn, wilboirt 
att«nif)tiii;g to subject it, a^^ thea *att^taapTed to enfyee Aa 
pajmeni ^ the'.whole out of your ora^oy. For 4n t^iAli Md im 
&ct, Bracew^H Iras unoer serious pec^marjir rwfcn^yinq|pifnV 
and was.held^ cenaidered and esteeoMgi iiifv>lveQl, aoteM%mi||y« 
Debts, irgainat hi^ were of very litlfe/ vifal^, and ^* hafi n^ 
et^dit onJiiSown Aocottnt. . • «• *« •' t «' * - 

*^d *fjMier I tCat at ^*e dakii of Ilia vkor^enemt hetwa^ 
^mplaia'ant, ^Op^/ ^* j^hli Kwlb, |llmrd Bi. fieorga 
wiSet litDOnbg uinl^r ve^ hfis?^ yi^ciyAlfy liafattitiet; ^qd if x«>| 
absolutely insolveQt/^i^ coDdidoa vas yery%i'ilMa?«ad fueei^^ 
tub. Oiherf i^er^^yidgii^edts^ -M^a* krgp ^oiuU^ opea 'and 
ast^ad^g 4|pJtV»^ hi«( and, ffii^ was^ prepainA Jbr (^la»» 
tite,' w^Ma, the kj^wk^ge of^ Jt^wla. n^ wB^'caanti|^ 
jgnpariM uad^ ^^g^ne^ oiM^ ^oatc^ijy f gaafiai baijc^ 
iMtQ^, a*€l arUoh fb (kpr a i aiJi ll»es|PBic# o{: poffg^jh ^f ^ 
■^bk *A* Mi'^oi J»ei98 nyit tj lfy>fii t % sa(i ri ^Hhiqy%ym^, 
til#p fi p»Mi( | |p ill toyi» a4 lh»in Vii»»»<iM^>>wwri4]|^ 






1M a i iiq iw fe j ytL%kiiim!B^o4igpr^ J^en »tbe ccyidlitSbn jot 

m tn^|p^ag6^*t» R^'^^* to 8e<n:Qr^ ^h^ paj^i^t of t^ fseiK- 
• rcfl promissory notes, amoiimtiB;?, tOigetUe/; to (.G.^Fof^/^^^hich 

S<{rl^g^ em'bmeed att ^h^ lan^'&nd a^Uflie tiep«e8,thut Bt 
tcftge owii^d,^ hia dVn rai^i — ttesid^; fodr AsLveS whicli ^eia- 
Ike 9epm;a(e ^tate of his wKe ; that ^t^ diii^time, th^ B'k ^ Haw- 
lilnsviile htld- against tt^^George'a jildginfiiit "amoutii^ag; io 
$16,000; do)} that Rawk ^^al^ the pri^c;|)^. fitpc^faoUbr Hii' 
8liid4>ank ; tk«t, in fact, flawls'n^t be^copsid^red ^^s o?f|iii;^ff 
' koA ootA#o*llir^ tfie wh^^*of*tl|e9e dema^d^ a^d that tn^wing 
<^ tjle klCbitle^nedff qf 8t. •Geotgt^ ixA the |^eme low price* 
'^ tMHfpenty^ a/ld that me juAgpient m/Wvor of^c^ward Mely- 
m€WL ]fgaJA8t coinf^lajiiafits, the saia Bra^ew^U and St. Crderge, 
ir^ •older than 4ie mor^agc;^, |t put th^ jmSior* claims in 
g»ea/jeopardy, he entered intottbil contract, Ate. • * ' 

•4t. Qi^orge and BmHwell being thus circnmstairckl^ wa»^ 
tke oof^l^ft bdj^ween R{^^8 and Collier, that th^ latter might 
fhy hid ittrd #f ttp^/«. in services, good^ * tt. is^ l^tll set- 
t(e^,*^if»t if tbete bt tfnJrliAeqefit tor the ci^^d^r ff^ /^etrknent 
P^ the debtor, i^iillhl^'flr«te the new contract, ,that tvAl^ be a 
coYisiiteration smffiti^ to .wiip(irt it. W^t:* S ftith^ ai^ the- 
fMnh of hh rt^i^ bf ft^' wMe c^ctrine* |fp(m* tkis^^subject, 
dHjrs, tkat«if ^^r^ '^ a Wge2 p^^stfbiW^ of^^^ to A% predi| 
#>^j it*ik tufldlM^ t9 9iuJt{t%i -dbe agHIAmeftt. j^r^'eto UamSer 
1^. Wdyn^j^l 9mi(fC$ Leading €kmB8j p**f4t9i) 
* <7ail>Aiy,oAi$«d(^b1^ ii^ml«^gi^e»*thiM^^ tke limended 
Wn ^ be triM, «kal BaiAs 1^ In'dan^r oi^. IbqKg ^^e • wkole 
cl^vmtfe piMttst Ml deb«? * As'lo Bfitcewen, we'thiilh' (is idi* 
l^fy to t>^J*ii *iMe Tery* iM)aii[fnt ; ynd 89 |^ al9 {St ^f^lrge 
a loAce«(|M^ nf^iM it «||fy ^ «we^#Bll tha>*l6e*p4rjtn^rs|ii^> 
4A(^{(MM hkte*lfM4.ffMw(id iMH o£ kM^1ih»t«^iitg»QM^Jl 

^(bottof St. Oterge, 4iM danger was, that the J^mmgm mnrt- 



OOLUMBUS, JANOABT TWOi, 16K. ft 

* ' * : L.*i . \ t , 

MoI:(]feiix et aL «^^ Collier. • 

gwe debts, by Uiat very, means, would be }ob\* If was, tl^erc^ 
fore, jcf^t as mach th^^terest of Rawkto protect *the younger 
as the^]der demipds. H^ yna eqiiaMy interested in all. He 
would haye been jtist as H)ach«lo6er,' by failing to realize the 
moH^ge ^€tafai)d, as either 6^ the ethers^ And i{ is in ^1^1 
aspect of the case, that the bomp^et with Collier i§ to be com- 
fflderSd ;Hfad which hias been wholly overlooked by Counsel ^qprr 
Ihe plaintiff in error.* * * 

[2J] By getting one third qf the large irm de1)t paid b^ the 
personal services of 'Collier, instead of collecting the whofe 
out of the popei^y o( St Geoj^^, il increased just to that ex- 
tent tHe pi^spelt ai)d probability of gettbg tho mortgage debts 
<£flpharged. Here,«then,' is ttie pas$ibilAi/f to sSy the least of 
it, of Icigal benefited the creditor, in colhten^^ation of the rule 
as Ulid down in tift Booln. . 

[3.] B^ another questkm is made for our dedUien by Coun- 
8el,4n' bis cojicldding Argument, itnd it is dds: Had the qem- 
pWinants an adequate Common Law'^medy, to ^ rove that the 
-execution was si^tisfied? 

\A^ Ordim^y,; payment may be sllown ^|biLaw. But here, 
this defence is complicated with other nv^iiters. Besides t^e 
mfttterS already discussed,«it* app^^ {r6ln the amended bill, 
tliat St. jSeorge is dead, and* that Cqjfiec, 'as administrator 
upon, his ^t»te,*))^ ^opd Ibto th^ possestfq^ef suhdry recei^ 
Ar^Mrvmi^taSiniMle 6y the detjeam in |i]b life *tMy, to die 
p3bidq^.'the*k)Mfii^^e of whicbf^i8onaed4cl freift Coilierby 
Ae pkvi^ A'^^^ "**^? discover/reipecting theo^ p^ymskrttf. 
AnA th%t ft i)et Vll — these VaympEU tf ^rb nade to Bawls, lrh(^ 
w&B nofthe o/eiet^UAe ov^per of th J dbhb. Biscovev^ is prayed 
as'ta the proprietotship'of^Bawls to tius elalfai, an2 44iiseq«liit* 
Ijr^ his avdibrijy ta receive th«M pi^e6td. T^^ «ftii be *ne 
ifit^ of the ucridaktiop. * / 

Of Covrto {lie, casennade^bj ^ bffl| vfmk all tke poitts^ 
jB«(t4M ft«ppofted%y profe 






u 



BUP5I>^flE COCHT OF GEORGHA.- 

• A -. ' ' • • 

.^-.1 »• T ■ > . i 



McPodgald and gthers V9. Mafldooc and Wife. 



JJTp. 5. — AieXAVDSR >fcDou.OALt> and .others* {(lamtiffs inVr- 
ror, v». Wu. A. T. MAidox apd Wife, defeftdttiits in erroK 



• 



[f.] William*Moaghon died legate, appointing John Mitch^ his efecutor, 
*wl^ qaaUfied add took poe^ssion o^ig estate u aod subsequently was ap- 
pointed guardian of ^arah, the infant daughter of his testato^ ^tch^I 

% med testate, appointing Aiexandec McDougald and others his executors. 
McDoi%ald qualified and took the exclusive po^ession and 'control of the 
^tate-pf >[itcbeU, amodnting to $100,000. McDougald ,al89 was appoint- 
ed^aiiian of the minos, and owiifg to the traosffr' of *the*gaardian8liip 

* from one cooi^y to Another and othA* causes, several bopds, witll difiei'ent 

• set9 of sureties ^ere givjn^: Hdd^ ^ That a^ bill filed agaifist/McDougah! 
. * and the.severli sets of sorefties, was not objectionable on the^scor^ of mof- 
* ti^iousness. fi. Th^t actions having been institj^ted 8iZ/atr up6n eiluh* of 

. the bonds, the rem^j^wa^ am{91e; and that a bill filed against the princi- 
pal and all the different sureties,' could not be ent^tained^ there^being no 
all^ajion of the insolvency of the {principal. ' 3. That where sevenu suits 
Are pending MjBMy if discovery is neodedf and a resort is had^tb Clu^cery 
t^ obtain it, a separate'biH miist^e filed in eafti case ;* and tke wbole^an- 
not be consolidated fpr that|i;urpose; ' . • 

In ^qoity, in ^u§cQg^e Saperioir Couiit. Deci^'on. qn de- 
DMHPrpr, hy Judge ^[rawford, Janimiy .Tertn,»lS54. « 



* * • .. • 



Willi^nf Moughon d^part^d liftislif^, leavitig'a coj^sidetable 
jitiitn, to (yie half*tf*wkich his daugkterSarjklf E.*w/ts enU^led 
*|yEiaef hu^wiH. JcJin MitofieU*qiiallfiea taa ex^xdt^i miM- 
^im IpaiWaA *o£ tfie miaon and continued suc^^ gWi^ijUf 
wilbo«t •making anj r^drifs or*settlemenfc, until ^s oeaUi in 
}Ml. Ih diedi imi^; ini\ Alesti^n^er Mc]>ougiftd*'^uaiifi^ 
a» kifl e^efin^r. Mid tc^jsMB po^^raion i^d ibanogement^f 
J«te^:Mit4li€fl'a e«ea(le, a«buating<to*$10(f,000 or^me otflk 
}arg» mmy /^ Cher#^ ]ie^Hie4iitbIe*to aepouBj fottXe e^tete 
of th6 said minor. In 1841, said McD<)ug2Mb^n» gyaEki^MM^ 
pf |k« TtMMDT^ g^^^i^t ^^^ ^i^H D^id McDougalc^* Iillizdiieth 
Mitchell and William G. Osborn, a^^issuN^jSttA J^'8^^ 
born Complained to the Ordinary of the mismanagement of 
McDougald, as guarcftan, wh«n George H. Bryson, James C. 
Huey, ]^Iiles Moore, Richard W. Armer and Spencer Reynolds 



COLUMBIA, JATiRIART TtRM, 1855. 68 

-, 1 ^ ■ ■ i ^-_ tL^ 

McDoiigald»aiid otbeES m. Mad^z and Wife, 
-. J ■ ^ . — ' 

a^decLlheir names ^ sureties to the orimnal bond. In 1847, 
McDongald remoyed his guardianship from the # County of 
Harris to the County of Muscogee, and gave a new bond, with 
Daniel McDougaldand Duncan A^cDodgald aa sureties. Wil- 
liam A. T. Maddox ^fterward^ intermarried with Sarah E. 
Moughon, and to him MoDougald delivered, as a part of her 
estate, forty-nine ^egro *8la\ieSk Fiiying^ to account for the 
hire and profits, suiffe were brought by Maddox and Wife upon 
bdtblbe b<fbds before' se^'ferthW the Cfommoh Law«side of the 
Court. • • * * * * • 

Pending these 8ig4», Maddox an^ 'Wife filed their bill in 
Btmity lagainst |he gi^aroian ana *allof the sureties, ^n* both 
boiids' ^Ilegjfig tD^e /oregpin^ facts, and farther, that it ^ im- , 
possible (pr^Bem to allege aijd pf ove, at Law, at what time^the 
gn«rdiai^ commitfed the several breaches of his bond, in order 
to distribute tho liafciljty properly among .the several sureties 
ilI»oi^*the r|8|^«tLve.Jbond8. TAa1| the sever&I (sureties deny 
that, th^ Of caches occurred ^uring tjie time of their liability, 
amd!easji uipotf th^ ^oj;Ey)lah)antd the* oni^s of jyoving the ^am^, 
i^tn^ it i{f ipnossi^le fer ^hem to do. The bill prayed fioi^ a 
full diqcove^ from McDougaJQ and. the sureties, so as to \ocije 
me several ^reajhes, and a decree accordipgly. • 

To^hi^ bnl fk demurrer was fil^d, 1st. For .want of E()uity. 
S4*^33epaus6 of ►the pendency of the Oomtpon Law* actions. 
3d, F6r iiiid%iil|i%ti^efs« 

dfh/C!d^*over-nr|L]ed the demurrer, and this decision is a9- 
sigi^^^^or^ . • 

IDfae pourt or4ered.^h^ defendants ^o* anWe&by tiieviext 
teni:*ef tiie«p9M1;) t)^e clefen^ttots' objecting, 1st. Because mo 
u^l rule hqd beeb 4aken. j2d' Because Xbere were^ several 
^eas ia bar w^h« bad not ^^u heard ir, de^rii^ned. . Of tB* 
filiimA£4he|i pleas, die qamplainants had no notice. 

j[hi4.a(4^f for ais^^eoi id also asji^ned i^ evfor. . « 



• 



«iid0e«Be97iiii^a Aawig how of Coiwcl^/tid i^ pre^de ii 



U SUPREME court; t)F GJEDRSIA. 

^ ■» i r. 1 .* . 



McDoQgald and others vs. Maddo^ ant Wife. 

2 k^-M il 



Jones &^Jonbs for plaintiflf in ejror. 

« 

H. Holt, for defendant in error. * > 

• • • 

By the Court. — ^ItUMPKiN, J^ delijrering the ppiniop. 
• • • 

[%.'] The view wo nave taken of this case, sojifercedis t^e ne- 
cessity of (onsujlering ihar^7 ef the qai^stiosis I^Bicb have«bQm 
discussed by 'Counsel. 'Anct we propose? to dispose of. it vety 

briefly. , . , ' • '. 

AnfL first, our conclusioti/d that th% bill is jkot obnoxious IjjO 
the chftrfiie of multifariousnesBu True, Johh JUitchelt aotec^ as 
botI\ e^tecutdr o( William Mdtighbn, . Stec^aseQ, %na as* guaroian 
of Sarah, the infant daughtei^of Bis ^statov. • SM^, he kffi^g 
died, abundantly solvent as the {yieadings.j^(j[mit, and*AIi^xan- 
der McPouga^ jiaviilg q^alifijSd as e^dbutor upob the^tiit% 

sssion amd gontrdjIher^flpAfti^iti&t- 
ler laYge«sumyhe^it^erfetaintd fai 

tiover the nhHAtedAess of* Mtth- 

ell^ in any and e^ry capacity, oi^ he is liabl^ foftn^gf^^ of du-; 
tj^in failing to do so. The entirS ^vency of^^tcWrs ^f^ 
whicl) passed into th'e Lands of McDoi:^ald, d}ve9^*^8*tra«s- 
action of all c<}taiplexity, &ave • that which the HigepuftjL* of 
Counsel lias thrown around it. Moreove]^ Mff^9i^^4l^ bf^viDj 
o$ciated in the double capacity of exeditor^cft MiU5h^ ^d 
gi^rdian of the minor, continues t^e uni^of ac<yujatai^Hibf^*if 
I &iay use such expression, throughout It is stiggeatod€%*tli^ 
argiteent, thtft it we would subititul^ different persqn^ in* the 
Ytfrious trusts exercised ]^y MilcheU ana M<!0o^ald^ i\ii b^ 
congruitf of the present proceed^i^^o^d oe tocXgliCring to be 
tlAei^ted — ^no«doT|bt of it. And 'the id^tky oft the .parties jp 
the best and only answer to the prepesition. McOov^lBtt'^ 
ireeponsiUe for tSte dtf inqnei^py of MitehtH, iMatever it imigbt be ; 
and h^ received .assets abundantly suflicient to enable him to 
imceujit. Aad wbeft ]iebeca\ne guardkir, he setftled wm tfm- 
self, in contemplation of hiw, as exec^^or ; and ifh# dM jMty |» 



COLUB^US,. J^NUARt TERM,. 1855. 



5& 



McBo]{gafll and others ft. Maddox and Wife. 



tase (Aiar^e^ expressl/ "tAa< Hfercer^ the principaL toas eti- 
ir^ly insoh^tx*' •There is n^^sodi allegatitnjn this bill. In- 



oag^t lo ^Mre done so ; and in ^ther eVent, his securities, or 
some of ihem, are liable*. 

Suits at'Ltfw ])aye toeen brought against McDougald and his 
seyeral sets of securities. Do t^e complainants 'sh6w by^em 
any special r^asoft for're^or^g ^o Equity?* 

In Alixandfif V9. Mej'cer et aL (7 Ga. Rep. 589,^ this Court 
held t^at Ghaacery jroulS ^entertain Jurisdiction of a bill Qled 
agai])pt tfie princip^ and .f)otlisets of sureties^prayifig a ciis- 
oovery.of tjie Amount of th^ devoitavk and the time when it 
ocourFed,*iH tirder to charge each set of sureties according to 
fteir^^i)ective liaollities on their bonds. Buf thb bill in t)iat 
case (T 

tirely 

d^, it is flot intimated bnUthaf McDougald, the j^rincipal) is 
affuicKntly able t(t respond to whatever recovery may be had, 
i^.an^) agaidbi him. This being^so, jt^ \natter8 not whether 
mTnre'or ks^ i^ recoverec^in each partjq^lar case, and upon the 
several ^onds unon Vh^ch th^se different sets of sureties are 
su^. ^ If McDougdd is able to satisfy 'these various verdicts, 
shffdlcl an/ be rendered, the interQ^ts of the sureties cannot be 
jeopardized^ and no^question, will or can ever* arise as to their 
reap^etive rights and eauities.^ Their principal stands between 
tlem an^danger.. 

Tne'remcfdy lat {iaw, then, is ample, and^ the' parties must 
dfeii^e by their, election tb ^o into that /onti72« The \j[i\i might 
be/!)itaine^for di^o^ery alone, to aid in the prosecution of 
the sfl^tioBS at Law, but fpr the fact tjiat there are sevenj Coih-. 
moit ^a^suks, aiid *tHe discovery should have been sought 
separately fq^r each case ; as'd all the suits ctenot, we a^pre- 
hi^d»t>e embraced iA one bill for this purpose. 



dvLT ju^gihent^. thesefore is, that *the demurrer shbuld haye 
been alkw^.' * 



f 



*fh# 



• %,'^-v • • t. • 



56 SUi^REME CJbURT OF .GEORGIA'. : 



Uaoirick et-al. m. Bouae etdiL'k^. « 



^~i T 



No. 6.«-^WiLLiAM F. Hamrick and olbei%4 plainiifit ia-eftror,. 
V9. Jambs B. Bou^e and others, Commlesioi^rs, &C.9 de- 



fendant8«in error. 

* 



[1.] Xbe Legislature of 1853-'4, pasted an fVct repealing th« A(;r^f 1851^ 
which prcK'idcd tharthe Qpunty site ^f Le^ 6guntj^ ahoiftd be*niade.per> 
-manent at the town of Starkv&Ie^ and authorizing ^e removal of the cpuri- 
house fr6m said^own. Certain cidz^s and holders of real est^ m tthat 
place filed their bill, praying that tftie commiflioqcrs wh#wcr0 proce^in|j 
under thp j¥ct of 1854, to lay off a n%w t(twn, and renK^e the punlic buildings 



political arran Jemcni or expediency, %ijd that in such matters ofle be^&la> 
tare has no right to bind all sul^e(|ucnt Legidatures, and all {v[)sterity ; tt|^ 
t^e phraseology of the Act of 1851, (he/eforef did not amount to fv vaUif 
«and binding contract with those who owned o/ miolit purchase real estate 
in Starkville, that the seat ^f justice should never ^^ rtnfcved; and tluU 
they purchased tlicir interciits qualified by thCiabsoIute ri^htt>f' the State, 
according to law, at any tftic, to change thereat ^justfce. • 

[2.] By the removal of thejcourt-house frotn SlarkvtUof ther^w.as no int^- 
ference with any right the 'citizens had to the^^etts jnd squares in said 
town, which may have boea dtdkated to the public, 

[3.] The compensation provided in the Act of 1854^ to lot faolders, is gratoi- 

tous, and the right of the cqmmissioners to remove the XM>ur6-ho«isa* does 

' not depend upon the payment of that as a condition precedent. *If the Infi^. 

rior Court refuse to make it, the citizens have a remc'dy by \^idlLtbey^may 

c^mt^l them to perform their duiy. • * 

[4.1 These^commissioners are made the ageuM of the Legislature, to perform 
an act of*poUtlpal ai^a^gement; and ib^ that p,iypo|e, are clgth^ y|t|i |he 
Soverf igu authority. If, in its^ performance, they have not selected tta. eli- 
gible site for the new town, or otherwise have failed in t^eir tluty * ^Jieir 
disoretion cannot be* controlled by the Courts, unless they vidftite ^private 
rigltts ; but the correction must be leH to the Legislature. • , 

[5.] If the Court below refuse to ^-ant a mpenudefUy and upon hearing a bill 
of exceptions, this should be found wrong, th^ judgment will 2M>t be re- 
versed upon this ground, where it could avi|il hothing to corr^t Ih&t error# 

Application for ihjunction. Decision bj Jadge Pbrkiks, at 
Chambers. 

In f ebruarj) 1854^ the G^eral Aseynrbly of l4^9lale p|Mh 



C0HTMBir8,'jAJSarAaT TEEM, IMS. 

Hamrlcl^ftaf. wm. Bbtuc tt al. Ik. 

ed' aa Act- nmonng the ' tio^tj ^eiM «f Tie* Co^ty . franh 
Starkville, and anthoriung <AuiilhiMiot|^M aaiDed to setevt • 
neir.site, ke. CompeoBation was prt>vded in-t^ Aet to^pb 
lot holders in StarkriH*. * * . . ; < , . * 

' William F. Hamrick ud ^ttyr Ut>oldenV»taA;ll^ 
filed a .bill against the ccn^mifeujjiieq praTtig «■ ajjndgtiMt 
ui4 alleging as grbnnds- fhecefor-^lat. TliaC to cAtw d^FAd- 
•nts to proceed Aid remoTe tlie'tseaf o^ jWiqe, H^Md' VielftM 
'the obligation of tlie cttntract- beWeftl'the -Stat* -mid tbe let 
hplderff of Starkville, they or^tbeir gyantiutf Wniig pBitbtaeJ 
dte lots from commiBBionere appoTnfed nndffr as- Actof ttie Aa- 
sembl^of l332, locatipg tli» oou&tv site, at Starkville, aa4 
'%athoriziDg the'sale of toHn-lotfr.' Sd.^BeeAue i| tonldib 
net a vlsted rigbt.- ^Sd. B^cause'tt Tnjtdd VeHiliiiag p'HnIt 
ph)pertj for pnbHie ds^, vitboOb ^st compel a i^uuj tir mUj 9en- 
oer AGref>f, tbe comnfissionera hs^lkg refnfieS^.paji the'bfta^ 
penaation providi 
location df tha td 
■qoare ajid streel 
me of the same f 
<^'Lee, Uier^frat 
and could not be 
Becanae the plao 
one, as near tbe i 
and contemplataij 
I^ Bwantpstand k 
faealtlk^. - 6th. ^ 

^e pruiflingJbdge refused to gfant the utjtiBQtiAtt,^(leniMr 
is assigned 'tb'ereon." % • ** « ■ ' ■ , • 

• Connael f^ HaBuitk and ot}iers applied, then, Ux a ri^M* 
•fti»u, ^ntil,t^e ^craion of tte Supreme Court in'tbei crtfl^ 
iriiicli being re&eed) ^9 also assignad as tarsr. ', , ' J>* 

ir. A.'4^4'^3 teljJUutiA'if eAvr, taOAdMl-^ -' -■- 

. • ■ ■ ,■* '^ ■ /■ ■■;. . '■.-*-.. ov 

iBt That therntti^vf 'th^^I^iMt'o^'4k«'«nBt^44 
i«.x«iA '■ " • ■" . ■ ■"■- ■ .w ■ ".il A 



I'OOUBVOF GEOBQIA. 



BoDuick ettiLvt. tlaam'et oL Jtc. 



ithti, it ^IfiVedf vSl mobtf 1^ obligstiJQ of the cABtnot be- 
WmH tW puties to> st^dVontrMt. Oharlet Hivtr Bridge «f. 
M|arf«t.**^(ir,i»#(;fc.5i6,582,> • I . 

1. What jt mil >liTestw8tSdSig|ht8. * ' 

'tj-U'MI*tsUb>|«ivftft p^eHyforpoblio use, vitlumt jatt 

dof 8^d cooa- 
re, th^ opeDing 
ii,.uid the eoft-' 
I, waa A-dediea.' 
I> be chuiged w 
3/* JV*. Rjj 500. 
2 (?a. J2. 240^ 
. 432.)» 

tnntB to a fruk- 
right^. ' . 't 
\, the BUBopror 
'en orHondelred' 
e-<«a fmtc the 
0d'by Bud Aot- 



fw pnblic par- 
lerdd a'ooDtract 
Ehe '^^egifllatnie 
di ooiporatiojt. 

••^ ■ ■ • f ^ : .. , . 

. ',& 1>« Ait of 18^, mdiins pefnaa^dt'tife' seaeb^-jivtitie 
*., I^the foyat; flf W«ff B^ElaiV«t'iind»V>.coii^nctintirai^' 
p Bi»»*; nor M it WB^ uf |»fnreis ob Mie^ jstj^UiSi to oon- 
tntt Ji;* «!.■«•» «f |v|^ ibahM^NMir lAgndfi^then. .'JF 
«^>«*WKArHd atiok pt^^ or (i«nt«B«d inOih UtaOt 

lMr o in iiwii^ ii i m ^i ' i t fl i tTufft t At^ ip^ thft aa»Bwig> 



coLmaiTS, jANUJutT n^ 1^^ ^ 

' Euurick'tt of. u. RoBMftdl. Ac. 

' 8. Th&t Ao# nmplf m 
joBdee, for the convenien 
tQ promote thaf object, tl 
bpt it became itri imperadi 
vide for (he wants of the 
fitfd, 285. BlacheeU vt 
fotd, 143. Arvutronff 
dr.* OaSmder vt. Mart 
ven*; iSax. Ch. R. 380. 
/mi. R. {Forth) 4?1.) 
■ 4. By tfad Act/if the 
the defo&dantB were mad 
i^ of the new seatj And 
so penon or power, tixce 
(Bscrelaon or action in th 
5. The removal, by.tli 
oompenAtioQ of the lot \ 
tmm tihereby ; hat, for tl 
provided 1^ the Act, am 
vdjornot. 

- Jab. Jobnsok, for tibe 
\^ the ^igirtir-^^ 



KJ^lffiS^ COURT OF GEOKOU. • 

l_ L_* . . , ^ 



GOLUipUS, JANUARY TESIf, 1855. 81 

^ 

Hamrick et al. ps. Rouse U <iL &c. ' 
J • 

wliere political expediency makes it proper ; that is, cannot, for 
the greater good of the public, withdraw its grant to the public. 

Bat in this case, sp far as this records informs us, there has 
been no interference, and none is meditated, with the right of 
emjoyment which the public have to the streets and squares of 
Starkville. It is only proposed to remove the court-house. 

[3^3 It seems that the Act of the Legislature, which author- 
ises the seat of justice to be romoved from StarkviUe, gratui- 
tously provides that compensation sliall be made to those, c^ti- 
leiis jTfaose proper^.maj be injured, in money or in lots, to be 
kid off in the new town. And it is now urged l^t such com- 
poisation has not l)een tendered or given, and that the seat of 
justice cannot be removed until this is done. 

This compensation is not made ' a condition precedent. Iik 
^Mt, as^^e ^ve said, it is but a gretuity. . And upon it the 
political act which' the commiftaoneiB are r64uh:ed to perform, 
has n9 dependence* If, after the seat of justice is removed, 
«9id within a fit and reason|kbIe pmod, the Inferior Court of 
Iiee Coiuity should not comply with tho requirements of the 
ioct ai^d redeem, the certificatee which the commisnonexs of as- 
s e smn eni tie required to give to the owners of lots in Stark- 
viUe, either ^^ in money or in town \ots of luid selected site, a4. 
8«ch rates as may be a^^^eed npon by the parties i^ the'new 
site," then there is an appropiir te remedy, by which that Court 
can be required to do its: du^. 

It was urged that a \:sz of fifty per oc: t. on the State tax 
of Xee County, f(^r the years 1854 aud 1855, would not pro- 
duce a sufficient amount for the liccidation of the claims for 
which this provision is made. Wo do not understand tiiat sat-' 
isAustion is to copoe alono out of diis fund. The Iitferior Court 
is required^ -by the law, to redeem tiiese certificates, either in 
money or town lots, and thi^ is a positive req^iisition of the 
LSfB^atnre. . To assist them in doing this, they afe author- 
ised to ]fvy this e](tpi (ax, ^^if Ahey deem*the same necessary 
tt(f tiie purpose of ^rryiug-out the foregoing prpvi^ons.^! 

[4.} It' was a|so contended, th&t the commissipperii i^houHt 
have beeij'ei^iredy be^ude they Jiad not fleeted aa eli||pbie 



62 SUPREME. OOUBT OF OBORGIA. 



« a 



Dinkins et al, V9, Moore et aL 



site for the new county seat, nor one near ^e centre of the 
county. 

They were m^e the agents of the Legislatare for'the*pnr- 
pose of domg this act of political arrangement — ^for the purpose 
of selecting and laying off this new county site ; and as such, 
they were clothed with a portion of the sovereign power and 
discretion. That discretion, so far as it depends upon the ex- 
ercise of their judgment, no Court has a right to control, unless 
ihfy violate private rights. The eligibility ^f that site, and 
whether or not 'it is near the Centre of the county, are 'mat* 
ters purely within their discretion and by their judgment to be 
determined. And if they have pot wisely discharged the po- 
litical duty assigned them, the Legislature must apply the cor- 
vecti<m. 

[5.] It was also alleged that the Court below erred hi refiis* 
ing to grant the 9uperiedea$j as asked. 

The order of the Court would have been no Qtrongen than 
the law. And that had ahready gi;^nted a 9up&ri€dea$. The 
Court could have done no more. But if this refusal had been 
eriror, it could not now avail the plaintiff in error anything to 
have it corrected; so that it is unnecessary to say more about 
it 

JdSigment aj]Srmed. « 



* 
I 



* 

Ko. 7. — ^Wm. J. Dinkins and others, pliuntiffs in error, vs. 
ThomAs MooAe and others, defendants in error. 

[1.] A deed witneMed thus : 

''In the presence of THEODORE QUBEBT,' 

• o *THOS. BIVINS,^. P,V 

is sol&siendr attested to admit it to record; and tk^ cc|nela8ion of Law, 
from this general fom) of attestation is, that the subscribing witnesses saw 
^e graxdor sicn, seal an% deliver the deed, for the'par|K>8es therein tteA-> 



COLUMBtfS; JANUABT TEBM, 1^. 6S 

Dinkini M«d,9$. Moore H td. 

■ * ■ 

Troreri &c. in Smnter Superior Court Tried before Jadge 
Pebkiks, Augost Term, 1854. 

This was an action by Dinkins and others, against Moors 
and Joseph White, for negrc^s. Plaintiffs offered in evidence 
a certified copy of a deed (the original being accounted for) 
Bade bj^ Wm. P. Brown to one Mark Brown, for certain no* 
groes ib be Wd in trust. The deed concluded thus : ^^ In wit- 
ness whereof, I haye hereunto set my hand and seal, this Sth 
day of May, 1827, and delivered the SMd negroes to the said 
Mark M. by the symbolical tradition of a pen-knife," and Iras 
attested thus : ^* In presence of TheodiNre Ouerry, Thos. Bi- 
vin?, J. P." The Court rejected this copy, on the ground that 
there was no evidence of delivery, upon which the deed could 
have been properly recorded. 

pi ,^ . u^ - .rro. 

W. A. Hawkins and B. Hill, for plaintiff in error. 

* - 

L. Warrbk, for defendant in error. • 

BsNNiNO, J. being related to one of the parties, declined t6 
preside. 

By the Qmrt. — Lumpkin, J. delivering the opinion. 

[1.] Was the copy deed properly rejected ? The answer to 
this question depends upon the fact, of whether or not thia 
deed was legally recorded. 

Under the Act authorizing this paper to go to registry, it 
could only be done in one of two ways, vis : either proof of its 
ezeention by one of the subscribing* witnesses, or the official at- 
teslaiiontof a magistrate.* This instrument was admitted to 
recoAi qmi the latter mode. The grantor oonohided the deed 
in the usual form — ^^ In testimony wliereof, I &ave hereualt 
set n^ Jiand aiKd seal^'« ko. adding,' ^^and delivered tke prop- 



64 



StTPKBME COURT OF \}£OBaiA. 



OMxner and Grr.bam m. Shannon. 



The attestation is in this form — 

" In the presence of 

THEODORE GUERRY, 

THOS. Bivms, J. P." 

It is statedi in the argument, .that the Circuit Court heM 
tbe registry void, on the authority of Mushin V8. ShielcU ^ 
Ballj (11 Ga. R, 636.) The deed, in that cade, wasjrecorded 
upon the affidavit of one of the subscribing wiinesses, who 
Bwore '^ that he saw the grantor sign and seal the deed, and 
for the purposes therein named," &c. He failed to depose that 
he 'saw the deed delivered; and for that reason, this Court de- 
cided that the proof of the execution was insu^dient. 

To make the cases parallel, the form of attestation in. the 
deed before us, should have been signed and sealed in our pre^ 
aence, or in the presence of, &c. The inference wduld th«ii 
have been, that t!he subscribing witnesses did not see the deed 
delivered. But the difference between the case supposed and 
the one at bar is, that in the latter there is no form of words 
in the clause of attestation. And the pomt is, what is the le- 
gal import of a general attestation of this sort ? And it is an 
inquiry of vast practical importance, for it will be found that 
a large portion of the conveyances in this State, are in this 
form. « • 

Our opinion is, that^under such an attestation clause, if nei- 
ther of the witnesses be an officer, any one of them may prove 
its execution by*making the usual oath. And that if one of 
ihem be a magistrate, the officer appointed by the law to ]^r- 
fbrm this duty, the conclusion of law is, that he saw. the in- 
Btrument legally executed ; that is, signed, sealed and deliv- 
ered. And so we rule in this case. 



#* 



* " V . 



%-» 



Cituncr It QrKh'MD ■>. SIi«bdcii. 

No.'6.— GssAHBa & GBA£AM,*pIaiiitibs ID error,it>^. 

Shan&os, defendant in ^or. ' • « 

[1.^ AfkccoiutougtitbeeaUbUBhed^y theoathofone of Utafivtles, tlgdt 
htki^tno cistk, but made th« cDtric^ ID thf book himself; thMibe bpol^ 
<rfbrigiaa] eotries hasjieen barni, nnd ihat the bill of [larliikilarg filM itttt 
the compUinl, wjiB.traiScVibed from Ibe book Jijiliftn'sufl". . •■ 

Complftint, in Snmter Sflpijior Qoart. ^Iriedij^for^^oclg* 
PKRKKat September Ternfy 1854. • ^ m ..''.-• 

Tlijft. WM a sijit Upon an accoant, . Ikton the tmL ^JqUiv 
dj^unpr, one of the firnf of Creamy &; Qrahavti bwqiw ti»t 
theSn&.bad an original b<tok of entries, wbi^'bad b£A ^-i, 
■bv^ed b^fire; that fce Ice^t the hotks alone, havftis n(t dfA, u 
and tfi^tie traij^^bed the ^resemt Recount frQBi«tka-^<V)!K<t, 
■kd'that this was a trne trabacrijK fro& the book. iTttQ-Coi^, 
r^^cted-the traoscvpt thneprovet, as endence, and tlp& ^* 
aa«n iatusisAed a{i emft'. . • > . • ■• ^ 

* '^ c ^ •• • • . 

^TUCKEB. & B«ALL,'fe''V'^'''*'^ '" eiTOT. , * ■ 

HAfvKiSS, foT^deCendant jn evror. • " • 

' * * " • ' t , . 

By tS^ Court.— LttMPKlN, J. deliTeritag*the O^Mi. ' 

' . ' ' *'•*■■' ' • ■ 

[1.3 The plaintiffs Jp error* it) ttn'sca^i-Von^t ilAaiiiv^ 

dulnts^ aninst {be at£endait,('6n dij'ogen a«coiiBt^*br got t^ 

■idtL Mid deKvjf^d V biia'dtnJBe tVo'^^st isSS. UpoA^ t\»* 

Mr..Ch^sratir, ^Beidlf Ibk 

1 with tbe coBf^sint, m*** 

j^I eiftrieV; AnVau^eB- 

tnet;a^vtB^ii<Ty 9^^, wiP 

WlRMflkKti h«vi^'^ 4* 

Otnrt'rel^Bed te ttllov V^ 



Qrekmer AQrabftm 4. Shumou. 

This Coort, in one of its eArliest deciuonB^held that tBe «o- 
^nMrpf sbtp-keepers might b^ prov^ b; UiemselTflB, whete 
^e book of on^iuil'^trieB, kept by ^eA, tu prodnoed-^p- 
pearedato be fur npon their face, and thtf items wen regid^ly 
AaVgedi-tfiere beiilg'notl)ing open the face ofirtfai ]jookBi fb^m- 
i^IjftB^'tt)- discredit ttlem.*^ This practice- has obtained tlirot^gb- 
ont the States itA^ gideed, 7 might Bay, ^onghoat the Uni* 
ttclStates. And Sir. Greenleqf ^oe9 n^ seem to confider it 
itb vsviffbetf 'Aith tpe principles o^ tile Commpn Law. ' . Bat it 
Jiai always baMD caioeded, that aveif the qrigiB^ b6e|u^ kept 
4>y ^e party himaolf, and proTen by his oviji oath, shot^d be 
veweti HnSpicioAsly and BCmtinized' dosely. ^d athesttara 
aefr aHowed ^m the nec^ity of t^^ £aae,'as a part ef tka 
/A g^ae.^ , * • ' ' ... 

•' ^U thi( Asd propoBei to go pneietep further, andifo Dfnni| 
.HippM^tjKiDtro^iKe in {videniie^ trabse^ptjof ae ^joonnt 
i^A\| Ih^.lfooks. Ve are linwilling^to go tiiis fftt. 
• itt^esfrom the defenidaitt Ute laet,'and*otily check i^p^ 
ttuB very loode sptcieB of proo^ So 1 JUg as tbd bboksl t&fm- 
selyflB, ycf requif ed to be prolifced,'the de£e£|]ajt nay', \q 
^•ir inspection^ detect Hdch proofs i^ n waq^ bf faimesa and 
regnlMi^, as to caet^uapidoii' on dimredtt upon the acconst 
witk which he is songbt to be coarged. > "QiiX allow ' the {iariy, 
in liv abagBW*^ hit books, tt> establish the demand by a copy 

' ebiqed ^ haVe been jUMwi^ oi; frdnscr^ed by himlel^ and 



■^ » .3 — « ty^. — r*-- *— 

Bnwfy tw. HaiQeman A fitnamoty ^ 



T* 1 » . 



lb. d.r-W^WPT BBi&'% pr^intiTiif or^t, ««. HarMMmHA 



•* . . • ^ 



[1.] Where there is po procejs annexed to or «pQ0iApA^)yibg Hil fMtkfkfiUi 
no wairer of proi^is, the whole pcoceedin^U i^c|l]7 ^e4w)|^T^ 4|j|9ad«- 
^jihutd^e may be taken ^f if^ at ftnj stag^ dier^of. . * . *.' ^ , ** *. ^ 

CoQipIaint in SHmter'Supeijor (!/«urt. J}ei9ui^ '^Jf*-^in|l 
^BlkfNS, at September Term, l854^ • ji .. 

• 

H^eman and Hamilton filed their petition against ^nifft 
Bra^; Brad/ acknowledged service, ^waiving cdh^y.andcojpt]^ 
procees/'t After yerdiet and jndgmebty Oounsel for B|bJj 
moved to 8ef;*a8fde the verdict and vacate JtHpjntgment^ pn At 
grtymd thht there was no ori^nal process issued in tlys ca^. 
%e XjoxoEt (fvef«nded the motron,»«iid this deqjfio]} is assj^^^ 
«r%i*or.* •■ '. ' ••'.—/' *", 

t • • • • . 

.Is. HlLi^ for plaintiff in error. 



'• a ' " 
•• • 



.Dj;n>L^, for d^fltidtiaLt in e^of. • 

^Pjf the Court. — St^bnbs, J. deliveiing the o^nioti. 






p..'] tn this case, ihe plaintiff H e^or Ms^^itti^lfLjil/ff^ 
of the petition, and waived % copj of sam^ ^d ot«proci«« 
^.t^prooems itidf^fae did nAit^aiyA , ^ *-' .? ■*• ,' • •- 

fi^e ^ df ifa27ia?7i <}Jl^iiMe m, J^yMt .%^««»», d^ 
Ii4\a(bf Deci|^' Te^, 1854, .we hare -gh^ ^t* im^* ^^ 
ii», vea3oii8' wlueh*we 9n{ih^ertBl'|pfltfeftoed HBt ^fi^ifki^$f^ lA t^ 
^dbting'^ta^ 4 p/ooess having, in sn^taafc^y utiiit ii||ni#< ii» i|t 
pntoibed^bythemsh&nftPao^ompsny^eyery < c | |itfM i <i P ^mA 
m eDAotiiaig, thii^ the defei^dht wer»* Vvoii^ ii|^ %kM W 
iipn>eeeding issuing forA in inj «dMAiM0lMMiyi^ k lvl|ftHli 
lib ^^le^oc6e<|$ng»{aiid (^|lle0s tift pioo#to it^p^ Wil^^) 
vM^^the saAb noDtafMJi Y#i<^ Se "Ihat Jh^iiiuftt t^ ktm 






.*__, V m • — * • ^ 

* « «0h1!pf^ & Cos^t/ Smith. ' "* * 
1 « : p ■ ■ » . . 

1b Mditkm t^«tlie reasons there 4f»igiie4, 1 adc^ 'that on^ of 

#^ Itps^^h . lM>lds ^he \»piifi<m that i];>a8 the *i»^ntiOii of ike 

Legpt^^nre^ afio; 1^ reqiAce'^hat.the process should be ^njiex^ 

h§ the C^irk |o the petitioii, the practioa ha|Mig been jMrvvi- 

' «rf|;Si|e#k tUg r^lgiird. 

IIIwvifMDp pro^bss anpeyd or lycompanyiiig thifs pro- 
•eedfaig. Tae (Jefendant did^^t waive *8ach* prfoeds. .**Tlfe 
frfole ^Wteee^Ui^bei49tbe{efore*radicallj defective, advant&^e 
Kight tie t^ked of it, at a^j tftdge of the ciMe, and the jjidg- 
m^ iboiiM have been vacated, t 

,v . r^ : : • 



•• . • 



• •! 



So. l0.-^]f M*|iN9 Q^PPELL & Co. nhuntiffs in errot, m 
Si|^BdliK :^^ SMITH) defendant in error. 



« • • 

{!.] i. ati^^mer in*aa |PP«U, U iteen^^le. . * • 

(2. J 7<tnuke an Attorney at La* iBCompcteol ^ t^tlfj^of a foct,\be kaowl- 
edge of^eifact nAist faaye-been Jcqoifed ky bkn, Ifotk daring the relStioa- 
AJijiWelient and ^ttorn^y, ^d by reason of that relationship. ' • 



g< u i p>aln t» in AaHiMpfat^pei 
/ t^irtoby l%rm,.1854. 




«* 



Watl(^fe (Sbatoel^^ Co..o^ned.a verdiqt against -Se/ibani 
ik4Bm^' JMv» ^eyiqred ^ Appeal. The clArk/4li ^ikOrg 
Idl l^'%|q^efjt''><>ift^>^^'^^^ piatDtiffs— irritjng ^heirY^atnci 
% mu^ £lwfeir 4^ ^;^ * PJ^inW. Ooimsel moved te-dis- 
% iflioil » tihat^ffonnd^ G^*Ootift jreflised Hie fSd^ 
pill i3ldi(dl tke^ ap^l ttr be aftTenW^althongB the .i^ttre- 
mm •|ttff]f f^deiM*«nd QiArc|)re8ented before ihe Court. 
Wa4feiiiteir<4Mfigi^te«rr6r. • • *• • 

DetedaA^ tettod W aiM*ec^plr,,ih foU^froo} WilKtfkn Taylof, 
pkirftiii' AIMI»4^. ' ]^aiiiiii% propge^ to ^ve* B5 g3avid 
Kddoo, one of h% attorney 4iat subsequ^l ,U9 the death o^ 



« • 



t 



CQLUIPUS, JANUARY ISIM^ 1865. 

ChapptU k Co. »i. Smith. 

i . ; . 1— 

Tftjlor, defendMit t6ld him that '^ he was afraid he iroiild have 
flome difficulty about &id case, as he had paid Jadge Taykr 
1600, in part, and had no shqwing for it". • The Court r^ect* 
ei this testimpny, on the ground that David ^ddoo was an 
incempetent witness. This decision is assigned as error. 

TucKSR & Beall, for plaintiff in error. 

A*. HooD^ fmr defendant in error. 

p 

By the Court. — Bennino J., delivering the opinion. 

[1.] The misnomer in the appeal, was amendable by the 
Act of 1850, lo Mithoriae ^'amendments to be made vMtantefy 
in all judicial proceedings, and for other purposes." The first 
'Section of that Act is in the following words : '^ That from af> 
ter the passage of this Act, all misnomei^ made in writs, peti- 
tions, bills or other judicial proceedings, <m the civil side ol 
the Court, shi^ be amended and corrected inHanteTj without 
working any ^mnece^sary delay to the party having made the 
same." {Cobb' $ Dig. 49d.) 

An appeal b a *' judicial proceeding." 

Indeed the misnomer would be amendable by the Act of 
1818. {C0W9 Dig. 487.) See a case d^ided at Macon, in* 
1854, *ia which one Seymour was a party. 

But althot^h the Court was right in allowing the sfipeeA to 
be amended, it was not right in rejecting ihe testimony of Mr. 
Kiddoo, the Attorney for Watkins Cbappell & Co. 

» It does not appear' that the statement of Smith, which it .was 
inropos^ to pro^^ by Kiddoo, was made to the latter, '^ both du- 
rmg the existence, and by reason of the relationship of client and 
attorney.". For, aught thftt appears, the statement was made 
by reason .of 3pmething else. ^ ^ 

The Act of 1850 is a 'harph, ahno^ a penal' 6ne. I(^ t;here- 
fere, it is doubtful whether a case fyXls vrithip^or withoilt it) a 



• 






i ^ _Z 

Dunn vt. Orozier, a4m'r. 

' ■ ' i 

proper preliamption will make tbe case fall ^thoot it. (Col' 

tins vi. John9ony 16 Ga. B.) 

^ So the Ooart should have reoeived Kiddoo^s teBtimony. 



t 
No. 11. — ^Lemuel DuniI^ plaintiff in error, v$. Jno. Crozibb, 

adm'r, defendant in error. 

* 

[1.] When a brief of the testimony is a^eed upon by Counsel, ani approTed 
by the Court an^ ordered to be' entered upon its minutes, at the term at 
which the a|ylication fbr a new trial iff made ; aad the brief is omitted fo 
be recorded by the neglect, forgetfolnesi, sickness of the Clerk,*or mAj othir 
canse, it is, neTertheless, a substantial compliance with the 6l8t Common ^ 
Law Rule ; and a nunc pro tune order may be taken, at the hearing, to have 

^ the brief put upon the minutes. 

Complaint and motion for new trial, in Randolph Superior 
Court. Decision hj Judge Perkins, Oct.*Term, 1854. 



( » 



This was a motion to ^smias a rule n^' for a neif trial, on 
the ground that a b]-ief of the eyidence Was not agre^ ilpon in 
writing, and filed as reqmred b^ the rule. It appeared that 
when the rule niii was grfinted, the attorneys for both par- 
ties/ in the presence of the Court, agreed upon a full and per- 
foot brief of the evidence, and the Court assented to the same 
as* such, and the Court passed the following order: ^^^Upon 
hearing the foregoing motion^ ordered that, the rule iiArt he 
gfimted, &o^ and that further proceedings be «Btay4d.*' . And 
the papei;^ were ^hen,han4ed to the Clerk, to be entered on ibf 
minutes. Thp Gerk failed go to do. . Coqpaipl for the rule 
moved to have ^he pitpers entered on the minutes -nune pro 
tune. The Codrt refused*that motion,* and dismissed the rule, 
and thi& decnion^if asQignec^as error. 






COLmtBUS, JANUABY tBRM, 1S55. 71 

Dnim Of. Cfosier, adm'r. 



A. Hood, for plaintiff in error, i 
L. Wa&bkk, for ddendaat in •rror, 

Bjf the Court: — ^LuifPEiir, J. delivering the opinion. 
• 

[li]* Ought the Circuit Ooort tp hare discharged the nde 
nitty which had been mcred and allowed for a pew trial in thia 
case, on the ^nnd that a brief of the eridence had not bee^ 
ffled in compliance with th^'Slst Common Law Rule of prac* 
tice? That role requires that '^a brief of the testimony in the 
oanee shall be filed by the' party applying for such new trial, 
under the revision an!l approval of i^ Cotbrt.'* And putting 
a liberal constriction upon ihe tule for the convenience of 
Goonsely this Court 4ias held tjiat the written agreement of 
Counsel shall answer in iUte plaee of the approval of the Court 

JiCt us ascertain precisely, from the bill of exceptions, what 
titoq^ured Ih this cause, it appears, then, from the certificate 
of the Circuit Judge, "that* before the rule ni, $u wtt granted,- 
the Atto^tkeys for both parties, in the presence of the Courts 
agreed upon, the brief of testimony, and the Court then and 
there Assented to the same as such, and that said papers,*to- 
wit: the motion for the. new trial; the brief .of the testimony, 
and tbe order m. ei. granting a new trial, were then and there 
handed to tlie Clerk of the* Court, to be entered upon the min- 
utes thereof." • 

We assume, then, that the brief of the testimony, as agreed 
upon by the Counsel and apjurovH by the Court, was ordered' 
by the Court to be entered upon its minutes, -at thr term at 
^hich the application for a new trial was made^ and it appears, 
by .the aflUavit of Mr. Bowers, that the brief noW produced 
firoB the custody of the Clerk, is the same tHat was filed with 
him. i indeed, the ideiitity of the brief, as well as its fUifees 
an4 ftirness, (kre*j(ot«[^^tioned« tll^dir ^hese ^ircuntstanctt, 
wa8"ft»«>m|^nt fos d)j»^^y o|a|l^i% (i}ie;api^|it&tiDn*to h»Te 
ttt(1il9cf;'lipl««M'tt . « / 



T2 SUPREME GOTJRT OF GEOftGIA. 

^ a ' y 

Curry vt. Ga«ldeii M al. 

Had this been done, there would have been a substantial 
compliance with the rule, it ought to have Veen done/be- 
cause it was so ordered by the Court. Shall the failore of the 
Clerk to perform his duty from neglect, forgetfidness, sicknesB 
or any other cause, deprive these parties of their rights? We 
think not. It is the privilege of the Courts — yea^ it is thfeir 
high and imperious duty, to perfect their minutes by additions 
or erasures,* so as to make, them speak the tinth, thcf whole 
truth and noth^ig but tlie truth. They should be, in fact, 
w^t they. purport to be in theory, namely: the Idonument of 
the action of the Court. * 

. NoF does this opinion militate against the decision of this 
Court in TonUinson vs. Cox^ (8 Oa. E: 111.) Ther^ never 
was a brief of the testimony filed or offered to he filed in that 
ease. Documents nf ere refetredHo, which influenced the judg- 
ment of the Court in that cas^ which were neither filed nor 
offered to be filed. And while it ie^ due to candor to a^but 
that the interpretation of the rule in that opinion is, perhajMS, 
a little more strict than its language warranto or* justice r^ 
quires ; yet, ^I must say, thair the' decision itself was right 
and that it does not conflict at all with the view now.lUJcen of 
this case. • • 



No. 12. — Duncan Curry, plaintiff in error, vs 3ob^ P. 
'Gauldbn and others, defendants in errot. « • ** 






[4.] J G birea a slaye from D C for one jTear, agreeing to paj him a certain 
sam tlierefor, and enterecl into a bond with securities, the obligation of 
wlkich was . that he would cause the slate to b^ forthcoming tp the posses- 
sion of D G one the 25th di^«(>f Dec^em^er, 184b, or^agr the pen^tjtof the 
bdnd. ^e 8|«^ ran away befoi^ tfie ey^ o^ the' jear, and J^p to.«(iie» ^me 
when action i^as brou|;h%upoQ,tfa^^nd, ]}i^J!tHr€r badnot b%i» ^Ifterio^r^ 



C0LX;i^l»9, JAKXIABT TEtO^. 3865. Jft 

C^nj M . GanldeQ «l a/. 

■ ■ ■ f * rw ■ ' 

# * •* 

iMulor was not discharged by^ the slaye's runniifr t^jrt^y M'uvb ''Vfja'^iQ^ 
^ ineritAble caspaltj*, against idiich ne Qtrmsioh ccmld be made; b^ |h«l 
If it were, the character of tkifl' contract 'scefned toatUhbrize the concln^n, 
Hiat the bailor inteaded to protect himself agi^t th^ possibili^ of t^ 
flbwe makSiig successful escape fnyiwboAlage, w|)ilst thtft hiM tothe ba^*« 
lee, bj requiting this- bopd fropi.the latter. • • , 

Debt, in Decatur Superior Court. , Tried bef<jr^ Ji^dge P<R- 
MKisj Oc^ber Term, 1864* . • ^ . • 

T)u8 action, was brought by Djmcan Cucrj^ on a bond pvea 
bj'defendants in error to him^ at the time of* hirii^g fi negro 
man Allen« This bond was in th^ penaltj^ of $}<^00, ,t# be 
paid on 26tb December, 184$. The Condition oTiBe bond W{t% 
th^t the .'<)bligor8 ^^ shall cause ^Uen, atboy, to be fort^comijig 
to the possession oT Dducan Gurry, on tb^ 25th day of Decern- 
ber, 1845^ Then (be obligation to be vbic^else tQ reipaiii i^ full 
force". The breach wa^ that the boy was not' forthcoming. 
Tl\e .defendants pleaded thi^ Ihq HOgrp rail ai^ay .without llfi 
fault of the hirer, aiid that he hid used .'due dilvgienc^ to rec6T- 
or hifti Vilhont success. ' . ' 

, Ob the trial, the Court charged, the Jury that defendAnt'a 
|Jea^ if .proven, was a good defeiK^e tp^ the action, ^his (9 1^6 
error assigned in tnis case. , * * 



• . • 



•• • • ■ • 

, -It.. F. Lyon, for pkmtiff in error." 

"K. Sims, fl^r defendant in error.' . . • 

J?y the Court. — Starjjes, J. delivering the opinfcji. 

• [1.] This is a CiMe of bdflmeiitby birmg.^* t&i§!not'a case 
^riiere we* ar^. left to the ge)ieral laWof bailment, in ordcAr t^ 
ascerti&i the di^ or charge irtiich .deirolyee ^on 4he ba^ee,. H^ 
h^B, by bis own contract; (tbe bbndfin qu^tiofi;*) creaie^ijlil^ 
and taien iX; -explibitTjr on ImMelf. 'The ti^ritaiiiiftito of ^Ina 
^a^e^ <hcn, iftust *tai4i* ^cb the cdi^ithietiod iSt^lbtr i^fven fo tt^ 
kni^woMmL ' \ ' ' • -" - ' .*• .*"• •.'••;^ 



,\ 



4 



Ifl. i/e^at^ME COUET OF CHSOJl^IA. 

, Garry ««. Gacilden et iU, 



^/4Xe*x;o&ijNiti6|i,<3f J;]iat bond is, that the obligees shall cftme 
Mteit (tbe ^lay6}to be foiihceming to tlie posse&sion of Doncta 
.^(^ry, A^*)^^ 2$^ d&7* ^f December, 1845*. Qereris a dir^ 
an^.ejjfird^ tiM€}ji;aking,* tBat4lie pnurties will haye*the slaye 
hire^, foHhcoming to the possessiont of the hirer, 6r bailor, on 
thd day specified.^ . . 

.Tbe ^opf shbws, that th6 slave \iras hired for the usual pnr- 
posis, upoil a plantation ;» that he ran away ; that dae*dillgence 
has been eieri^i^d to re-capture him, and the usual exertions 
la^^e hi this-pufpoto.; an4 tb&t he had* not l^een re-iaken at 
thefiiJiiig^f this'.patkionr • . 

. Jhh tepi^rted cases aVe somewhat in conflict, as to whiU will 
discharge a. Bailed who has entered into a specific 'Cbntract of 
^9 description. On tl^e one h^nd, it I)a8 Jbeen sometimes held^ 
tUa't ^I^ere tlfi law ere^tes a duty pr cnarge, and«fhe par^^is 
di&bleQ to perform'it i^thont any default in him, and he hath 
no remedy over^ .there tfi'e law ^ysiU'exCuse him. — as in the case 
df waste, if aTiou8?'bedest«)jed by tempestor by enemi^ the 
^eteee is excused, i^ut whore the.party^ by his^wn contract, 
creates a c^uty or charge upon himself, he is bound! to sjiake it 
gopd, If he nfay, notwithstanding any accident by ineyitai^^e 
bec^ty^ because he might have pirovided, against it*by oo% 
tiiact. * And tWefore, if a' lessee coyenaift . to rqpair a' ImmM^ 
though it be' burnt by. lightnidg, or thrown down by enemies, 
yet he ought* to repair jt^ (JParadine V9. Jancj AUyrCg^. 
^6 27. .BTechnbck and Abergavenny ^Canal Oq. vs. SriUh' 
ardy 6 T. E. 720.). And see Story on K § 86, and yarious 
oases th^r^ cited. ^ * . ' 

Other Cow:i^ and distingmshed authors have held, that in cases 
o1^peelfi6 conttfaet to keep safel^,.ine¥itable casuality wiU exeuse. 
LJonoavf ^^ 43j/*44* 46. . . Coggk v8.B*ernardf % Z/ord Haiff 
ififd.. jfyweU \m*Ooni t^^. Com. J>ig. OMdition, If. IL. 

^,,«^irdeK|i.9at*Jb^e«BMB wfcesm/tjAor yis to-dpeid( l^^wQft^ tli^ 
1^9 flas^. oC-^Mts, iu|}4.*t)iese .ogpoijii^ views ^ for in *our 

r" liej^ tilery* wtts m iiiev\tftblB •<cfksutfity here, in ^ ^ $>C 



C0UC«$IU9, 



OuifT «t. Qwaldtrt*.et'aL . 



The ideyitlible oasualt^ contempllited* 1>y the l^ uTlAMMt 
ofOodbrof tbe State's* enemies. "The cabiuil^ i^iqttAjR^ 
4oeB not fell inikin even* (he qpirit ef^itlier of *tlMtee-^«^o«g(i 
itktf 4>een/ in effect, so held in* soibj9- cases it^deir fa \k€ 
CSmirtB of ^entnokjr. / , * '' • •• 

These cases, it seems, go in- part njibn the gr6vi|d, m^ /^*%lk 
rimning iawaj of thoBlave is a {^ril ^oident to themi^^ftaMta 
^ tbe pir^r^\ So *it is '' indden C" . btit n^t '' ibeirttMfe'<i 



natore of the priaperty'' in a bene or M^ififi. '^awiflibAy^ 
fUsk of holding tha^ one wjio had ^BdeiitaKen^H)^ sp6ciat 9^ 
tract, to deliver a horse on a giten day, sbi^ul^W^irttaBQM^ 
{jtOYHig tbat he had run fiway. It is traenhial the VfAfltlffy^^ 
*a slave's escape is mneh greater : bvt this is onl^' ^cf^eelMof^* 
ilagree, and it cannot be saa4to be Ik casualty |iiil|9(jf#hMi flrt 
srqfnsion etndd be made. It is noTnecerta/y* Ufl.assuiifej^ lllUt 
bolts and bars or chains wonld be necessary, id oijItlA&wfaf^ 
the detefrtioa of the sbtH. GtooA tiiieataeiQ; wocMb fa^sM^W 
Ml, 4e it quite aa eiedtaally.' And snch fl>conirql(^ii^ ^ 'ML 
fDre*iis.might be iflade by^die owner of «4ltQ^ for ^ I ' ei^ t d M H 
piirpoee*of endeavjHring tof*ensn^ su^ .good ^fe'SlS^MiA ^^^^ 
would not be nnderstobd as impntiiig \^^*tpoeiiQ!^Swii 
sbro to ih« Urer, in thii cade. TIterer i^ irtAi)ti<)g*ih^ liit^d 
to Mrthoti^Ithitf-rWi inw^ Ve iOMre said",. 1^ ift3^id|Bf^ 
byiiig down-g^eral pri^^les.' . . • * • • •••■-• .y!*' 

^Asetb^ ce^sdif given for'th»da(nldoilbt6*wl|4l^re 
leferred is, tliat from the nature of -the w^ole transacfidli^ 9k 
wiB Mrly itofertdde that the THflttkig aVay :Sf tlifr'^livcrfffatflip^ 
intendeid^to*be guarded agaihsts'by Vjle BtiprfiA«i^t)C4lie^T6tl- 
traoi;. 9jii fius is armndi ntore^satisfi^dlQry re^^bdj^'&fin^ll^lf ' 
iflg the cases from' tha^Mfore'ns." • *• .* . */• 

Li'tke«fisst, of. these eases, SinffkUfn vs. Ctihrdli (6 iK ^^ 



Vldch ib^ .defeftdanfr *boniiQ hiHiiQdt to pajl 9100 
alavenn^HDhrlfttmas — id fnrnishK^thiiig, and to deHv>r him to 
tbe order of tbe biter at the ezpisation of the time/ There^'tbe 
<k>art held, that '\4iieirh m^ nodiing io; the .wfURn^ i&f Ae 



16 J^PVSitE 0(>URT OP 6B0ROU- 






Citrr^ i;«.*GAiilden ^ aL 



TT- 



Upmitpk to'j^flftify^tlie oonclusioB, that the parti a at the tfme 
^.kB'>kecatioo5 understood it* as bindii^ the appellee 'to *de- 
Irr^the dlaVe tiaine4f at all events." • And. hence, the Court 
eeifsidered Ib^ the doKverj, at M eve^y was notrnn^ertalc^n, 
• In the clkse of Keas vs. YeweU, (2 Dana. 848,) the return 
i|ta8*on«ibo]^d to have the slave forthcommg to answer 4 de- 
4Mi «6en*&recMsare of mortgage., The Court say* *^ Ae oov- 
•nsf;i>' must be treated .and construed with an eye' to*the sub- 
j&pbmMifir aliQut ^i^hich it yn^ .^ntered into/' Tq show yflM 
ttkkfff^ tikey say,; that .^^tbe apprehension *and complaint of 
Y^WeH ^VM, tbtfC'J^ea^ .would remove the slave from the* State 
^^^hlft ceiJlC^ by dcDree, subject her to the si&tisfaotion iH 
l||i4<iijiUMl;''.'and4ience, U^rasheld, that the escape of t)ie 
il^»/Qg^eialiy/^ the miining i^way of thci slave wias a peril 
lo i^i(id^>Wpt^P^f ^ ^^^ !^ ivcid9i>t»- ' from its j^uliar na^, 
wpn ^ot bt^n^ ^.to .be guarded against by any-stipulatibaii^ 

. ^VtiR^<ca9e*befoQE« us, iherf is notkmg to autl^ofisj^ the iq* 
Jbisycft jii^vtoh aecKpe of th^ slave wan not ^ithhr the scopB 
0iivi$/¥^^k^' iciten(f whei^ the bend was executed. -.Onthtf 
^ii^kt^frjif iSaf o^racter. 4f tfie transaction, tlje specific and only 
i^ifi^iij iki^% be'fQrthcoming at 'Okrktmas 

tin ^tili^^ bodd.and* security t<>thid effect, in ^iT sum nc^idi 
wurf^^j^Bldher Ah^ fke vatiM Vf the slav^,. atl^pem miggdB/6A of 
d^ j^t that such ^escape, was ftonsid^ired^ poesibLe^^ and* was 
l u t e m^^t t%l^yva:dQ4'ag&ih3t by the.stipuliiticmfi of (be con- 
^. • / . .... . 

* A(iUe<tels,'w« dd«not*8€fbhow, in, the ptresffncei of'doA 
ii^ Mfe\^ fay/th^E clicl^* wilft Jbot the, intentioit ofti^ par- 
lij^^ .t^ rf^f^. A«d iherejbre^ we reverse tt|ib juidgment. 



• t • 



\ ^ • ; «'/ 






\- •• / •* .. » • 



• •. • • • 



#* . • • • 

• < * u ' « • I* 



« 



• • • 



* , • 



«♦• 



^•UrMBnS) ^ANUABT TEBM, 18^. 77 

— — ■ ■ ■ 1 ' ■ ■ ■ 

Hyinahftn m. NicboU. 

No. IS.— James A. Hannahan, plui^tiff in error, vs. James 
• W. NICHOLS, defendant in ^rror. 



[1.] Ape ezeai re^ isBoes only in cases in which the party agunst whom 
it issae^ cannot be held to bail at Law. 

[3.] A sells B arslaye and takes B*s n6te with a surety on it for the purchase- 
money. B and his surety fail to pay the note and have nothing from which 
to pay it, except the slave. B is trying to sell the slave, and A having sued 
B at Law on the note, snes him also in Equity, alleging in his bill that be 
has good reason to Jipprehend Chat. B will seU the negro : ffeldf that this 
does not make a,pase for the Interposition of a Court of Equity, on principles 
•ptia timet. 

In Eqnity, in Baker Superior Court. 'Decision by Judge 
Akb^ews, November Term, 1854. 

HannaTian filM a bill, alleging that in 1858, by his agept^ 
he.8oId to Niq^olS a negro for $1100, and took his note, with 
eie Pelaneey as surety. THat Nichols ^^Eigreed to furnish ma- 
teriids ai^ build .a gin-house for complainant by a certain lime, 
for wUch he was to have a credit on the note of $600. That 
this bontract was the principal. object of selling the negro; and 
Nichols wais unable otherwise to pay for hupo. That Nichols 
had fajled to- comply with the contract, and that he and D^lan- 
cey are insolvent and unable to pay ibe tiote, except by the 
pj^oceeds of the negro. That Nichols was trying to seU the 
negro,, so as to defeat the complainant ; and complainant had 
good reason to^apjHrehend' that l^ichols would 3ell the negro 
and leave the county and State, and thus defraud complainant. 
That he had commenced suit on .the note in Baker Superior 
Oojurt: P^yer, that Nichols might give. bond and< seeuiily 
Air* hi^ appearance, to ansn^r the said actfon .on the note, as 
well as fqr the for^icoming of the negro, to answer iike judg- 
ment M Laif, iMSd fbr iity^ wti)^ of quia timet. • 

XHk niotion of defen^wjjjjiwj^tfnnel, thi^ bill was dismissed for 
watit of eqmiy, and b^^n^jsei .complainant had an, adequate 
Coi^ptojlt Jj»w remedy. . 1%i^ decision is asi|igmed as error. 



78 aUP9B!l£B COUBIT 0^ GEORGIA./ 



a I 



HaniMihaa M . Nichols. 



R. F. Lyon, for plftrntiff in error. 

A. Hood and L. Warren, for defendi^nt in error* 

By the Court. — ^Bennino, J. ^teliyering die Opinion. * 

[1.] ^^A ne exeat regno ifl^oes only where the claim upon 
the party going abroad is equitable, and it will ba refiised npon 
a mere demand at Lain; for money, ^for there' it 'is said 'the 
defendant may be arrested and obliged" to give bail, who will 
be liable unless they surrender him ; and he may be as easilj 
taken by that process as on a writ of ^ ne exeat ¥egn9.' '* (8 
Danwr« (7A. Pr. 875.) 

The demand, in this case, was a -debt for $1100, secured by 
aj>remissory note'. It was one, therefore, on which Nichols, 
the piuicipai in ihiB note, might have been hdd fo bail at Law. 

The bill, therefore, contains no equity for V n^ exeat regim. 

Hannahan, .by selling' the slaye to Nichols, utd taking 
Nichpls' note for the payment of the price, pajrted wiA'all title 
to the slave. He retained no lien on the slave for the pur- 
chase-money. The result of the transaction was to make hiia, 
Hannahan, a creditor, a mere creditor of mdiob*,* and <tf 
Nichols' surety, and to make these latter debtor? mere^ delKe 
ers.of him. The biU does not pray for a rescission of the con- 
tract, oil the ground of fraud or on any ground-»K)a tibe cop^ 
Inry, it insists on the rights given by llie contract.. On Ajre* 
scission <^ the contract, the^ title to the slaye woiddj^of course, 
revest in Hannahan. But whether, if the bill were one for i^ 
soissicm, the facts of it are such as to warrant an Mplioation 
fo/ ^a receiver or other expedient fop securing therj^perty, i; e; 
tike slave, pending the Utigatien, <3iis Oourt is not cAUed. upod 
to decida. ; ^ 

The case, as made, ia one inwjiich &e cefanpfaifaiint sha%6 ne 
rights title or intex^ in the*^llM^ i<vr llhe • forthlX)Bi|iiiijg[ 
wUch he p)rays*ti)e Oovrt to comper*die defendant to give. to» 
curity; tad4;OSBiJb"a.olise as timt'die jfuk» ttm^ pfind^pl^^bii' 



GOLtUlBfnB, JAITUASY TEBH, 18<5. 7» 

I 

HannalMin tw . Midioli. 

ii6yer*been extended. That principle has never been extended 
to the caae of accreditor who could say no vwrt than that hoB 
debtor had but barely property enough to pay the debt due to 
him, and that the debtor was trying to sell the property, so as 
to prevent it from becoming snbject to the payment of the debt. 
Whenever there is a sale of property, without reservation of 
any sort, the effect is to give the purchaser absolute dominion 
ordr the property sold, and consequently to give him power to 
Ben it. If the seller wishes to prevent any thing of that kind 
from being done, it is easy for him to prevent it at the time of 
the sal^ before he *parts with the property. Let him take a 
mortgage. The prayer of this bill is, in effect, that the Court 
ifill make Nidiol$, the "purchaser, give Hannahan, the seller, a 
mortgage on the slave sold, and that long after the sale. The 
prayer is tiiat Nichols inay-give a bond for the forthcoming of 
the slave; to awwer the judgment which may be obtained at 
Law. * 

The qida timet poVrer of a Court of Equity is quite a vagu6 
one, (and therefbre a dangerous one) but it has never, as far as 
I can find, been applied tq such a case as that made by thift 
bilL This Court will not be the first to extend it to such a 
case. (1 MaddocV% Oh. P. 218. Story's^ JEq. Jur. " Bilk 
pua tim^.'') 

But if the bill has in it no equity as a bill for a ne exeat anci 
none as a bill qt^ia timetj it has in it no equity at all. What- 
ever other relief a Court of Equity could grant, can Se equally 
as well gFsnted by ft Court of Law, and granted in the suit on 
the note already pending in a Court of Law — ^the CouH below. 

1%e Court below was right, therefore, in dismisMng the bill 
for the want of equity. ' . ' 



• • 



• » 



• • ,' 









80 SOPREfiiE COUST OF aSOlUlIA. 



Rawson w. Cochran et d. 



No. 14. — ^William A. Rawson, plaintiff in error, v«. Wm. B. 
CocHBAN and others^ defendants in,'ecror. 

[1.] In a suit upon a promissory note, given jointly by two, and both of the 
maimers are sued and serred, and one of them dies before judgment, process 
of garnishment cannot issue against the joint debtors of the defendants, un- 
til the estate of the deceased party is represented; or such other procAdiAgs 
are had as will disconnect the estate of the deceased defendant tcont the 
action. 

« 

GamiBhment, in Dougherty Superior Court. Deq^on bj 
Judge Perkins, at November Term, !l854. 

William A.. Bawson brought an action against B. C. Green 
and K. C. Green. Pending the suit, B. C. Greeyi departed 
this life. Before his death was suggested or there was a rep- 
resentation of his estate before the Court, the plaintiff, Baw- 
son, sued out a summons of garnishment against Wm. B. Coch- 
ran and others, first making affidavit thjit "the estate of B. C. 
Green and K. C. Green are indebted to him," &c. 

On motion, the Court dismissed the suiumons of ganusb- 
ment, and this decision is assigned as error. 

L. Warrbn, for plaintiff in error. * * 

* • 

Spiceb & Strozier, for defendant in error. ' 

By the Court. — ^Lumpkin, J. delivering the opinion. 

« The case made by the record and by the admissibn of Cfoun- 
sel on the argument, is this; An action of assumpsit was 
brought in Baker Superior Court, by Wm. A.«Rawson, against 
Bartlett C. Green and Eenyon C. Green, upon a promissoiy 
note. Bartlett C. Green died^ and before any Tepres^itatioii 
was had upon his estate, »the plaintifis sned^out process of* gar- 
nishment against DeGraffenveid and Cochr&n. Can this Be 
done ? The Circuit Judge held that it could not, aad we think 
|Im ju^^jnent WM ri^ 



(mjfmm, **im$m ^mifi,^. ^ 



I ■ , , t ■ ■ ■ 1 1 ii, I 1, 






■V* 



£1J IKiifiiigib^^ poi^tt lA^er ikegufi^ 

tf^da0 (Mime «f««)iiBMMi|llmi,»1>7 ' ^f^rt ng Atai INia 
comi^ into flte Wods of the l^^ fifftbemUtLiiv^ 60pe<nl|^j 
viiiim dl^ Iwdve nmnQui'aUo^^ ^^Mfj ta^iioertajn tide go^h 
jMottofthe'e rtrt ^' 1 4ajypffmng,)^j thW iiiqwy, we koM 
thfi important j|^milegefl»'Bie*8eo«TOi tj kw/to tto defeBdiMi^ 
wiiieli make it tfkdgether improper to move ia a .catd|e^ 4fl^ 
tke*deatb.€f tl^parlTy and. before iho irttfte iB repreeeate^* 
Boi^ kae to be giren to the de^nde^itfly befoos .4ui gariMalh 
ment q^'isaoe. Tbia oatiAtflbe dene ^ixM the liprceaBtatifa 
waa qaalified.- TheVeis no' obUgipe. PV^the Aet of 1828, 
mdrnr idiich. tl^s pro^eding iTaa Jinatitsited} ihe defendant haa 
the r^kt ta diifldxe the gany8hi9eA%.by gNng peraanal aa- 
firity Ibr Ae debt.*. ¥br OSa reaaoA alaive, to a^Mthiiig ef 
ethera whieh ip^ht be apeigned^ the proeeedtng irw prop^fl j 



. . • 



■*<i^— — ■ ■ ■ 






Xf. 15.— jAins lu. WiLiMMB niid oHieriB/ vlaiBttflf n ^H^ 
* «t. Al^il^ndbr A1 AiXBiry eJreM4pr/ fto. dlfeniMit iD erroiw 

(\4 t ITbf . 6^K>t0H'9tmytfiAi^0tiiBKi ncgjro tlATes to a fnulM t^r ^*4^ 

' ^<<1n m evni UmI mj said mMi8l{ter i sb^AM dMHHtlMal ehW ir 

Hi atoMi^; ,M< aiat>e«rfrdB « ctifd or.chiVaC' m 1v»» asMi, arf 

,'4{[««ii of porehteo) aj^nhat th^ wMa prbvifioB, ** io tIpD event tiat la^ 

«aid aaOghtcRT J shovld die, wH(ioi^if cliijd or diikf^e^ tfttn," ftt.bfrl^ 

' W uA liie htih^^ \Mr^ho4^**MmitMi»tiwit tfn Ififlreiice thai ihe war^i 

. .«Mrs pf ifae bad/f Wft^ uyad |)7 ibtf ir«HKSp dekiipnte ceiUin ladivi^ 

Wla jaia^eriag the. dieser^4gB bf obtlHrett aj^har death, ancb not at |ra^ 

V llnatatfoii :' J^p aieo; thatrW took a^eeUtertr Mfe o% M tali 

,ria?ia. • •; ^ •''.'•.. ^. 



^ '^tJwiME' d&iJRl? ' 6jf G'^iMxk. 



*.'..... ^ 



^fpJkJDs etal. VAUep> e>;ecatbr/ftc. 



' if ^jtar&te estatel^in JK^lii*o^it)liBun Blades tfafe^eli^coDrejell; fS^ fibihi the 
.'«<iifliHtkI^r%l«ts of my ^^m»€^:9ftgmfif^^t^\Armak^, JM (kftftim ikd-in- 

n^^e'j} s^rate ^tajk^ apd a^a^..yWed it as si^^h, /mdp Ills wiU reeited| 

'tllat in' consideration of nef podseasing t^ same as a separate estate,' ho 

•InAde tib OtKer proti^on RJr'li^: JSfWrf; Ihat tts^ ^^utorn^as ^topped*' to 

•*4«7 the sepaMe^ tstMe of th^ .wil^s^lthe^ame, anjiati iiahili^ for het 

^ S%}msi f^^ m, the chiiiocB«<)f h/er ^^«ditbcs weVe concerned, who hadsab«^ 

jmentlv to^thepnblicat^n of the will, fl^ven her a Q^edit upon the faith' of 

said separate' estate. 

[f .^ tn i> pi^ceedlng i^ tfih UiOfaanctfi^, fdrihstmetion aI\|d^du«<4Soll; filed b^ 

iherezlMatoref^'/l Win ^dileh he alleges that fala tCBtatOrJiad b^eiijnit* 

• tlniya<ki>liiq^lpfTi1 figMft, Vhen h^ teSntt^ hil wifri to said prQjper^y as h^ 
•aei^rate es|«^,-aivi treated It S4 sach in his will; S|Ih1 praji^ tbat^ the 

same might be cDrr^ted: Helct^ that an ex'ecutdr is not bound hy puch a 

* ifecitaf ih the wdl, If ft were tnade nndef a ihis^ke^i i^iprehensfoQ by the 
•lestMdr. Mt thethk this bsbe tl^e testatot did, by mi8tlJw,«what in eqni^ 

' fiut^ ^Ipnift^ifymy ienee he sheulfi ^huT^ doit^t end such |k mistake I^X3oant*ef 
.?a^txwiHiu>tQprrect^. ^ ^. . . '\. 

In Equity^ in Decatnr Superior £lourt. Decided f>7 'Jiiclge 
PEJIKIN9, December Term, 1854. 



In I8869 Mrs. Keseiali Wo6d executed a deed, conTejixi|f 
certain negroe» to Jiimes- H. Truluck, in tnst^— Ist. For the 
use of the granior during he^ natural life, ^^ then to and for the 
jiH-andf b<j^i#fit 4)f%XQj.da]!i^Ker,4me' FiPiOd, %ud' |he h^irs 9^ 
1^ jic^9*^^^7f .'aq^ u^ tjiei^en^ thliipy Sf^d cUughter Jajie 
should die 'wil&)u€ child or fhildr^^n, then I desire the ^hoiy^ 
V^^ jtQ. be ^vid^ between Ay Sri^th^^ ie^hdjailteni^^ &e. 
Jahe i^Qod aft^rwtrda inti^nHmpried with A'v Ai^WillmmSi ii[|u> 
tecetre^the |Mroper}y ae^he aeparftfe* eetate^efhis wi^^^T^^ 
ti!%ated it tA soefa so Icmg ad hf6 IJredy ^nid in fief* laSt ^duded 
tlie fop(^wing iteiB. ^ I mil* and bequeaHh to iny beV:;^^ ' iTKe 

J give- her, she batving^a sepaMtte H%l^i ^^^^9 «ufficlhnt.for 

her falatn^teailC#'^ AftiiAr the' dtol^ e¥. Iier haAasd; fibs. 
^ifl^aw. c^ntnbct^'dii^ts 911 (he fatch' 0^ ^^ estate^ ai^ ^e 

a itortj^age on a portion ii the property. . * , 

*« After 4ie di«ilr lit IHHMMr vAlew^ h^ 

executor— filing a bill, alleged thd feregoing facile, ahd^'pray* 



Mw^im ifmi^ im^ m 



"-T 



^m » ■ 



icmi^ 



edvftt^e diredioiL of the* CoprW^^Wfit tin .^fi^atiiiatMOi nf lUp 
4aed; aodim the jmMm9vi^V^iaiaii« rf l(i% 

1^iUlaIDB£rom.ptoGei^ig'l)gl^D9t,t^ , « •. 

. Upon the- oomutt.iA*of -tlier wswan^ & jp[iqti^.w#§ JDiade It 

Iha Go]Hrl refvsed U^eiaolk^: * Sw^tWM .'^rem'^jA. tf tha* 
iifiwiafh-^ttoA the qii!e^o]^,iMRg«^ m-^M^^^piSb cUpend ei^tbt* 
It «x)n the oon^truptioa of t}le d§edJ imd t^e j^feol of tke spjkir 
flejiient nets of Vi(i^ia^»^ as/pbaiC^d in ^p hSl^ - ^ , 

.... • • ••/ .. • ' * / • * • ••*'•! 

; B. Sims, ^r pUliptiffin exrqjs ^ . * * v . « » 

> .S^JP. LYONy {br.€tefead^nt4D«eiiQ(v.. * • :« 

.'. •• .... .• •• .. . ^ ^ • . ^ ,.^ 



* .* 



[L] The ^t to th^fti]i8teivu^^ •Mft^ if fqr'.thH MQiy.lKe. 
(^{■m W^)ed,aDdthe.£9u»'<^^.ly^lJ^ i^M;"* lii^.^icA 
t«^ ae .wilbpate .an..eiM0«tfd, V^ M^^lgi^tvlfi. JPa #0f|4» co|ir 
4j^eiiieii^&ii|y ^. lAllfyw ther^^U.qptietlumJf^ m.^ift^trr 
mi^t)«to 0bpw t^%t t^giyer.'o^^ woiscU ilnef^ (/«fo ^pdJn^ 
tiNi^eaigiiat^ cer(ai)i ^pdi|)di]^ afMifir^epg lb#^ ^ee^^iptjm #f 
dbZdr^n «r i<»rs,* at the^e&t^ «f her o^iiibtoi^ ^^ ^ 

It 18 the wen B^tled 4e<lfcniiei0f all ^^ xaifl$tm.tHH^. jQi^ 
^e iKprdp .A^H o/^A« io^» ^Hf^ W '0oq|B|knM4 as ^rords «f pur- 
^gUvy ifk»MTer ihei^eViB. anytJUagyi t)|f.,m8lv^^ttent ivhiQ^ 
diowa that ih^. weice Wdjbt^ dBsignaie certain peqwnto ^nagFrer- 
]ff{ thp deeqripticw of hmsfk^ #(fthe t^^iM^h eC 4;e pai<^. * (JQo^ 

^JETwo^ ,...••./ ..».,. 

, Ibn our op^n^ buc^ eqpbnatoi^.woEdj^ jvefMU^ iiiihi^ 
hA^ .tl^^.in|infld1ate. context; % tliUB* gjaii^-K^ed o« to J^o* 
p4c^. tl^t/^ m tJm (Bui^t tl^ii my B«,id dqngbta^i Ja^e shf^ulijj^f 
Vifiout chitd (>r.€Jdldrmj tA^^i^ 1 4e^di6. the fJ)oye> property^ to 
be cliyided," iwu , ... . / ;• * f , 

t^^ow if theBe.^rme i^ad tp be^oaqfrtnied inlhigland, <)r by 
tt90e rales of constriction which fayor the intevelti of the i^ 



^ w^m^ ofQiTitr^yt' ^^k<HA. 



:•.&. 






IMnin^, WotiM. '(^rJlMAl;^ ^1>e (boiftr^^ wot* 

^ Mirs of the hc^y^"* fa thelorm^ p^oC thd oentenoiB : aed 
flUcf^ MthofUgli tli^: w(»t[ *^'phSNMtf* is'&ppi^epnatel^ ti word of 
pofAiM. 1^ tfab ipnBtiEaetfoii wQ^iiM f r#^^ upon th^ pris- 
hK^ yUc^ha^ inftobfteiftd tlft Shj^tdt (>oi^^ Bjr ecmstliioluvii 
ItodepriiretfteW^rdB^^ajrhisS^^ ot '^dyii^.wifl. 

Ait*h^''' dftlitu^hatwal IligE^ vk : ,a dyUi^ wiAoii 

imae at the deaihj aad to lidM th^t th^ inpoH on iHd^fmte 
Jminre qfi$pu; wliidi [HrjneiplQ Is, aeeoediiig.to Mr. Lewii; 
m his trsatisa on PerpQtfities; ^hat, ^^ ill all* easies of doobt iia 
regard to the coDstraction of limf^tionf, that is to he pntst^ 
red which mosl favors tbef iiMrestb of tb^'heir hi lawv ' * (Leim 
ffi P. 191.) 9V is* tk^ r^Moq, theVefore; why thd ifovi 
^ ehildrem,^ l» a Iportl ^ pwiSliise^ in* stieh vconl^fekt, wo^ he 
contNiUed bj.tbe wor^ ^^ heirs of the body/' unless, ther^i^ 
«Ae<|fag «W» tBe'iniqthh^ ' • 

^ B«t,aiwehkte ^d Mi tb^ i^ of JTorra, sSmtniHrMfry 

lb SatvitaalH tM>i|(ifiM»ii*h«^«h«bb^ in cVeefc, repniHedrby^ 
&6gi»H^titre Jf Q^w^BTf iprhte jriiAl6g^li]t1n'e "WfA aboKriied^ Mid 
^•al abd>eiK>til MUe;pxlk ib^ ikfi^^'tj^^ 'tt^ 
tribntion, and ^sIMfts' toil prehiblV&^ *Ajid*if.lAie reastaitth 
Wtfto rtp^aMf A^ lAde 0ilQtfd*rfah)ti^er ^zkt. ' 
* If the fetsM for'saeh consrWi^iions be i^s^pealed^ why ahoi^ 
4 Obnrt^ In ^Hs-lfHiM, egniiiiQil tsi pefpW {tself b^ :tindtaipg 
mp and d64h» the Kbyrifath €# tiAceitlrifity whiek has 'bete efe- 
atld by ihe finglirii CoWto ; mlkichf attone 4im^ ha^e beenift* 
ftnenced by thi^ reasOn, and.have die^idVd'iiiHs^M^didgl]!^ eirfft 
agai^sl; ihe plain meaning of simlifie w^db;^litidait^mol^ 
Miiidtrfug tnttm AeHnteresIs «f <^At knd ^^iheroe^ ^n 
kto^ ik^ T^9l(ln^ isf^fast i| as to*'r^s#rt *b «rH|a^r sibMI^ 
fogesi^ erdeft* kVoM its cKmtrellbi)^ 69Mt> Why, >idlere ft 
may preparly «Md rea^aUy be aroided, Aall we petmsa Ik 
walking in the thick fog which, has been thus crefftted,* ^Aiek ire 
Idoay* advaa^e^ lnt6 the eleariight and'atmdsjiiere oC our (^ 
lalTB rtttd p4>ttcy ? • ' ' . * ' .*^ 



COtUlfbnS, JAKUARTTERM, 1856. 85 

' 1 1 ' ' 

It 18 n^this poljit of taew tha^t we arriye at thd conclusion, 
&at wlieh in the jeai:188^» m tfie State of^Qeorgia, this grant- 
«r emplcj^^the word *^^^ children" mtliis instrmnent, she de* 
tfgn^* to tqie it in its natural sense/ a§ a wprd of p^chase, add 
flut wjB must se^ receire it: 

1^*80, itr llnd the mak^r of this 'deed, in the use'* of the 
wor^By ^i& the eV^nt thtkt'm-y said daughter rfiould die with- 
et|t ehil^ or chilQrem/' haying referenbp to her daught^r's dy* 
ing without cbildi^ at her death ; that is, Irving at her deiith^ 
InjBUch^eyei^t^ she could not haye intended a .perpetuitf: and 
if toot, sl^e had not jn her mind, at the time, lin, indefinite fafl- 
Wre of* her daughters issue, as -she most probably WDidd haye 
h^, if she* had designed .to create an estate taQ in her daugh- 
ieHtf in^^the u^ of the WoMs'^Mieirs of ^e body." And hence, 
llie fanemice h, that she did not mt^nd such estate in the fi|^ 
ittstflnee^and -t£^( slie ntfed*the words ^' heirs of the body," io 
jteognate certain indrviduals* answering, tbe description of chil- 
dlren^ tft^^deitb^of tier daughter. 

- fiof if. she intende^i tfiiir*propHi;ty t6 pass to any children 
iMiem lier daughter might leaye at her deatli, and in th^ eyent 
that sh^^shoaMleaye^no- children at her death, Aat it should 
h^dS^ed itepng her bntt^ers and sisters, in such case, ifae 
eooH ni>t ^aye intended that daughter to.tad^e any thin^ more 
Aaif a me estate &w the pi^operty. ^nd this, ne doubt, wa8 
her Jhtfention. • * * 

• [2.] ^Thebext question rabed is, whbther or "not the life es- 
tate of the datkghter, in iids case, (Mrs. WilliaoHS formerly 
]kiss*Wood,) jiB a separate Jotafe, not subject to the ,maritid 
rights of her husband. * * 

' We canAot sanction the position, that the words. used wei^ 
MEctent to^creiCte a separate estate in thir property.' But H 
ap p ea r s , thaiC it was treated fis her separate estate, Vf the bus- 
band an#in^) during^tlie c'Oyertur^ {kud'at the ^me .of^hiB 
AMih, Or of the^esetiption of this ,wUl ; w4 ^^uiteresting ques- 
tfen is fahed,- whether tr not, under the cirCums^nees, his re-- 
^vesetitaliye is net*esto|)jf>ed to^ deny this. 
The executor, .^xander Anen,^ES(}. comes here alleging, 



86 SUPBEMB. COURT X>F QBOBglA. 

_^ i__ • > 

— , . ; ■ . 

that, as lie^has reason to believoi his testator aQted mider a 
mistake as to his legal rights, during' his Ufe, in tr^atij^g thyi. 
prcfp^rtj as his wife's sepantM^ Estate ; ^nd he prajs that such 
BHS^e maj be C0]^ecte4 — at the saine time sabmittfEi^ him-^ 
self to the ^ire<ctions of the Court, and ay6wii\g, what *he no 
doubt feels, a desire to do nothing but his dutj^in'theprieia^es. 

We have not had a moment's* h^sit^tion in perceiv^qg, that 
so far as tjie interests and rights Of the cifeditors are conAsmed. 
(who. are represented here,) this exeputor can haye no ben^ 
fitnn any .such mistake by bis testator; that as to th^n be puust 
be estopped *to deny, the s^aratid estate Of Ae wife. Th^ 
4ebts were contracted sul^sequently.to the deatb pf tbe .toeta; 
tor, and t^e legal presumption is, upon thei fi^th of * this prop- 
erty, to wbich iSlrs.' Williams b&d beei\ •distinctly referr^«bj( 
the will, as her separate estaft^. . Her.credit6r8 had^anright to 
look to it as hers, and not a^ belongmg to kef J^b^4'0 es^ 
tate^* after hia will was published, and it wt^uld be agr^t wrong 
on them, if the executor were now aSiowed. to set.iqp title t^ '% 
If the testator were ignorant .of hi^rig&ts, as is aHeged^.he 
sl^ould have taken steps tp have iAfcArm^ himself in^r^tidn to 
tiiem, befor^ he m^de and pubUsbe^ hjls W}11, and in?^d per- 
sons, as he has done, to credit he^ who had been. Ufa wifi»^ hImni 
the strength, of this propiNr^^ J^Y^ ^^ ^'^ ^1^ ^9 proper 
steps tb be advised, *it Was grdss jiegHgepc^ for. wU6h dieai; 
creditors s]iould not be made to sutGer. And an osteoid m 
jmM, though net applying in casea where there has been a nys- 
take without fwoM^ yet does apply where there h(|s iMsen 
gross nejgligemce equivalent tb fraud. {LStoi^'% JSq. SI886| 
391. Brewef v%. Bos. ^ W. -B* B. Co. 1 Ife^ 483.) 

[3.] We incUtie strongly to thin^, also, t|iat as between the 
wife and tins husband's executof, the fatter, - in a Court of 
Bfuity, should be held to the admissions i^ade in we will, no^ 
ipdthstandi^ they qaay have been influei^ced by .nd&t^e^ 

It wiU^notbe denied, that if. tbe trustee* ip this pasi^, npof 
the intermarriage of^Miss Vifooi wijii the defendant's, te^td^ 
had invoked tbe interf^renee Ol a Couit.of JSquitijr, tsx^ asked 
a settleff^nt of this property upOfi hi& ^e^twl que tru^ that 



L 



COLUJtBUS; JANU^Ry TERM, 1856. 8T 

■ ^ * — 

WiUiami ti ai, vs, Allen, exacutor, 4c • 

-_u- , LJ . 

sacli a eettlemeot would have Jbeen decreed. Well then, when 
the Ifosband maitie4» and when he executed his will and died, 
referring his* wife to ihi^ pr6perty'and setting it apart as her 
Beparat^ estaTe, he did what was egidtaUe and just^ and what 
confessedf J a Court of Eqmty would have ctone, if it had been 
asked ^. It was hot It tegat settlement^ but should it not be sua- 
taine4 in Eqmty ? ^ And now^ when it is necessary for the *ex- 
ecutor to SQ^k a Court of Equity, in otder to haVe his testa- 
torls mistake corrected, should not that Court do what waa 
equitable, and secure the property to the wife ? 

' Sut' there is li longer rettson why this sh&uld be done' in 
tBis particular ca'se*. By hb' will,, the . testator ihi&es no , pro- 
Vision f Jr th^ wife's maintenance ; in ifTect, assigning as a rea- 
son that she was possessed of this separate estate. His wordb 
are, '^ I will and bequeath unto my beloved wif^, my two car- 
riage horses and famify carriage ; this is all I give her, she 
hatitig a separate ^tate amply sufl^cient for her maintenance.'^ 
It IS to b^ inferred, that if he had not considered and treated 
this property aa hers, he would have made some other proTia- 
ion Ant her. And it will be, indeed, a case of great hardship, 
if Ae is to be dejHriyed of thia. 

Ought a Court olf JBqui^ t4 permit this hardriiip, if it have 
Xhi right in any Way to interfere ? It has that right — ^for this 
tri^ is-jbi^ught to correct a. mistake of -the law by the teMator. 
This can be doiib by a Ceidt of Equity only on equitable ptih- 
cipliDS. 

It ia ^e that the recitals in a will by a testator, in which 
He eri*6hto W/ 'states title to be. in a third person, which, in 
&ct, belongs to himself, do not amount 16 i^ devise .or bequest 
of said property by the will. And this is so, even though it 
tUiy <4^<^ that the testator, was influenced, in the diq>ositien 
ikinn 'pro|ierty fey theioislakef • {Wright v^. Wpvd; 1 Vfnt. 
tW; WHfMvt, Ham)nimdy 1 Stran^ey 44T. 1 Cent. It. 281. 
t J^. ^h.Ati'. &MJ:) T)i& Id undgubtecby a obrrect posttidh. 
Mft iMh II i dttethUt 'caiie from that b^fcr^ us, wberii tl^ 
Itfllr VhWfer tli^ fMhttft itcitee *&' bemg lif lffii*ii/ife', :M eq«Ky 
Mid^Mft «8tac!«MB IkMd'd ftavt^ditt <hM(^JiHr w>MA4iMfe 



9» 8UPfiS}y[[$ COURT OF OWffiOIA. 



^ : li 



Qhannon Vi» Hjde and OUrk. 



been fhere ^onypjeif if a Court of B^uity bad bpfm asked m 
to tonvey it. And wbere, in si^h a ease, tbe'testator'tf iSi^F^ 
sentatiTe appeals to a Court of Eqiii^ to correct the miBtsihe 
made 'in this reoit&l, JS tbe Court thns'takes-jurisdiciion of At^ 
matter, it should decree according to t^e equities of the ^[larties. 
It only remains *to say that the judgment*of the* Ci»Hrt be- 
lov is affirmed, and that in our opinion a detree, should* be en- 
tered in accordance ^th' the Vi^i( we haVb expressed, fqrjtl)e 
protection of all the interests at stake in\his cas^-^-care being 
taken to require "bond and security of all .persons who mvv pur- 
chase |;he life interest-of Mrs. WilliamsHn this personal proper- 
ty, when it is sold in payment of her debts,'tliat the aaiae 
shall be forthdoming at' her death, to answer the dekikuds of 
those persons who are entitled to the property after her 4eath. 



Nb. 16. — Haiivbt Shannon, pl^untiff in erroc, m. Roosivslv 
Htds and Clark, defi^idilntB in error. 

[1.] Xpp«anuice of jthe defiuid«nt inea* »a, at $nj time in the lera^ 1>efM)ft 

• * the Juries haTe been^chargedi is A performance of the ooa^itioai i)T $k d^. 

$a, bond. * 

■ 
• . • « 

Ca. M. in Sumter Superior Court. Decision by Ju4^ Pqp- 

KINS, August TeiTB, 1854. . 

* « 

.. yfm. B. Steyeils being arrested under a au $a. gaye hoad, 
witii security, for his appearance at the next term ef .the Coolt 
When the casc^as called, Sterrens iailiilg to^ appear,, judlgiaii^t 
jri^ entered i4>9i^ tbe bend, agj^i^t Mm and,-H&nr<y43ihaaiic«, 
Jtt^flpoejO^. . fbx^ 4ay^ beftre the ^hn ^^itfitvm, f^m^f 
the siret7,)iM««^ die b^! of Atet^(^ W 




tBhJUy^ Hyd»y(^0|nrk. 



T»- 



deewoikisaasigiiedaa Ar#r« r^ ^,^ 



HAWRfus, repi|8eiitiiig Brow^, for flftiotiff. 

jSif the (^rt.—Bman^Qy J. d^Tering tbe*opmV>^. 






Ib oue^of this sort, tlie. Statute .reqaires the Qoa4iti»i^ m 
the beQfl to' be for*the«a||peamnce of the defeudaUt iix cf^. it^n 
at the term of thj& proper. CQurt) to be held ne^t itfter t^Q at^ 
rest, ^^Ihen and there to stand to'aq^ abide by such proceed 
ings as may be had by the Court, in relation to his, her or 
thdr tajdng the benefifof " th<k dutute. 

The bond, in thia case, is in substantial compliance with thia 
requisition. 

The condition of the bond 'having to be for the appearance 
of pie defendant, to abjde by su^ ^'proceedings" as may W 
had bv.the Court, ijii^nol perfofmed utiless tlie defendant t^ 
pears time enpt^li^A thjg term to adpi^ of *^ the procee4MigB'' 
by which he is to tfbide, to be hiM. 

And of these jiroeeddSigs it may happen that ai^ is^ue fot » 
Jury, on a suggestion of fraud by the plaintiff in ea. «•: naj 
make a part. 

TChe condition of .the bgnd, therefore^ i^not peifbnmftd u^ 
leps the defendant appears time enough ip the teiHi to ad&ll 
of such an issue being formed, and if notcontio^ed, ibeing tried 
^f a liir^* That is U)*m%J%/9 ^niMM-ia n6t p^rfbrmed, tm* 
less ^^efeftidait aptfetfM b^re the JiirfcSs shall* havi^ bMK 

|1.] But on t&e o^er hand, if t)ie appHctande lis at anj^ tm 
before Uie Juries are d|sc^rged, the condition is performed, 
lad a|q[»6aranee,*at s&ASm Ati«; mAm^eaff^ij^mkt Ikt Bifk- 
tale A pa M e of being 0oaonidished. As long as the t^ourt hai^ 



t I, m<« ■• III ' ' i" i'*iM^ 



fc > 






^oediAgs" of which the case is snse^tMe. 
«'i&4ttB citoe, die si&ety having ^rod^iped' (he tjpdy *oP {us 
iprixicip^l) the defepdantln ca. Ma. three^iaj^ b^ore ihe elcA 
^ the t^rm, producecLhim, it is to be j[hresained, before the 
^urieb^kad beentdisdlMurged. He ther^oie produoed him in 
aeason. . * 

The Oonrty thei^efore, i^uld have granted the .surety's «!if6- 
tion, to have ihe judgment set aside and himself exonerated 
ftom the bond. * » 

It ts %otSneaAt to b^ ssfid,* that if Ihe ca^^ is nqt c^ed mi- 
m after the Juries shall have been discBargedy an iftppearance 
^ the tinte yheft it ^ called,. will tiot be sufficient. 

** 



lb. 17. — TflpMAS S. l!uGGLi^, adki>, fie. plaintiff in ertror^Vi. 
&ARAfL WiLftnf^OK, adm\ &c. cfefandaut in errof . 



• * • • • 



p.] fl^e Act |>^ 1847, to aiq^i^ify and eortail^to^dings, allies to CM^ fbr 

• or amnst an administrator. ' ^ . 

, jCompl^i^t, ice. in Lee ^penor Court. Decision by Jiidg^ 
Jfqgi^mp, Jbine Term, 185^. * , ^ 



< . • • 



• •• 



. VJi^ Oovibelow.diBBU«edVh6 pVuB^iff's suit} on 4^9*growk 
1|i«4.tjM^atef.l847, "to cuftaa *as»aim||)ify,pk^^ at 
]ltw" did not app^ to cases |br or a^^inst ai^ adn^^^^pgitok^ 
SIlis U Ae error {Mwign^d. * • • 

^.W. A/HyraKi£(a,ferfMiitiffWe^ •. • . . 

STBoain, fcr ArfMhat ja #Bac. % •' 



CGLVrnm, JANUABT WKM, |W6. If 

, : : g ^J. 

Tngs^e, ^f&p'r, ke*m, WUkipsoii, adm'z. 

■« ■ I .1 * I I r ■ ■■ 

^By the* Court. — ^LuMPKn^, J. delirewig the 6pimon\ 

* • * , • • - 

.[1.] The ^ann$ prescribed by the Act of 1847^ te siaipl^ 
pleadings, are preceded by the^atphabetieal* statemhit ef ilia 
Sifppsed parties,, thns : ^^ A B. v$. C D." And the ar^meq^ 
28, .that an action t>j one admiiystrator asainbt another, oamvi 
be brought nnder t^ Act. ' • l^hat it was iotAidM 4br iinKti^l-^ 
tiil^ xmlj in' iheih own ri^ti • ^ . .•' S • 

On the oontraiy, ftlsJ letters Irere intended' to t^feftefll 
the whole party — ^pluntiff ahd*|Iefttkd^t^i^o^7er Aey tpdt 
be* TJtis rjBStrioted conBtnicti07*;ioiiIiiprefent a 0bH,l>y tPf€ 
fh&tifs ag&iilt«onei.de{(&ad%D|^ i)f opip plaintlff^gaAist ttto 
deTendant^ or twQ-plaiiiti:^ /gainst two disf^Amts. "h 1K^ 
4b8tickix«i»t!ie'«fef^t(ia5y? . .\ •^ t • * 

This complaint is well brought andel» J4m^ JPohns. MtHi 
80 fyi from, colistming the Act sfiricj^y, it should be liberally' 
interpreted, intended as it wa^ to facilitate the recorery provi- 
ded by law {qt the redress of wf ongs. And it Is a feather i& 
fte cap of its author, that*t}ie commiftieners sent^ this ceun- 
try from England, to look into the mysteries of American Law' 
Seformf have transmitted a copy of (las Act home, and it now* 
^ds 9pon th29 Statute Bfm6{ the Qptt^ B«rtt^ei# %«lk 
iwif tBe ]^,alm. .. ^, •. * , , 

But K^ hold^tCat fms writ*yas gooa un^ier ihe Judieiary A(^ 
of ^799. Wm fbe (bqy^. oettl^ipedt^ef i^ Gd(mf i»4'itt^ 
certitmly &om the ade^eiv of the &# CenUiilvtkifr df nkj^ 
^ people bave lotkjfld t]k^ iMftini{y tS the ulboet t# im-^ 
pnKldfpll^ropeejUgp. *ffbettthe JVfi^ 0/ lt99 was t!^sf}€A> ^^ 
t9A fondly a^(poa6d,*^^. doubt^that^t]^ darli/ig object bad 
be^ accomplished. Bml the Judges «of that dajf ^viabi^ to 
<)|fowcfit|M. shBife|M #£ 4hei^ !■ ■ t l >i uqM « i * ejbeatioa, 4iteleal " 
«f odMtropig^illuir Allt hjhmV^ as AA^ cfhovjd have* done, read. 
ili^^(nrce& it ii tU Tl^ qf j^^lilb^ ^^VJ^ka, |,^eriW aa 
ii^GMfi$m\j 9^ e?eft tnji^i^am presisribed by Ae Brmsk 
OeortflL And then commenbed aae^ker e fc wggfci , as is efiden-- 
oed»yiliiintefl»»an*Bfc»mii>ilii>i fkMf/mlMg, 



•I tUPBSMB OOVltl OF aSOilQIA. 

■ m t 

■ ^ ■ : * 

k heavy blow was aimed at fictitioos fonns, tbe use fit which 
have had, J have no <)oiibt, the iftffeot to weaken the fovce^of 
neral truth. And noit we are oalled upon to fritter away ^hie 

^ tit is ii^9d]|is9 to QUBcematt^ any loiter— the a^ e£ qiarU 
|JVl.^pu)^l>lj99 is past in Qe<H*gja. The giant Truth c^«* 
jgngar be ti^ dowi^ by the small cords of teohnicality. We sit 
JlMe^in jii^mjdQft i]\p(^ men's ngbtSi'and pot to pa8i| ji|peii th» 
•omperatiTe ingpnjuty and skill ofi tMr Gonoaeli* * The Lo^H** 
J»^^re a^d the Qoorts haveicoiiibm^ t9 ky ^e axe io the root 
fl ijtie etiO, wd ubder tb^ir/jdb^ blows- thia.Upas tree 6f fictiili 

^vsaeveigr ^Qg« .IC^^hnitaMties. ^^n)> sooa ba te^k^ei'aa*.lhe 
jll^i^ legal S9|i4[ Jii^.oiwiip. of ^ by^geae >e{^. • • 

Ais wri<^ tested* by the Campon La^ Forxjpfl, wants otttj 
0$ 9up$r fe ^fm^fO^iff JAd^ho cares a fig for thpit ? 



• • 



ilvi IS. — ^A^Ai^ft MiL^BB, plaifttfff'in e^rot'^^vs. piy^ysi J. 
Saundbbs an^ others^ defAi^kLdts in evn)r. 

• • • # 

|tt> IriMreNia MfiAi^ A fliftAfih^ ttUkrJUt li iftide to a lijU inaf ^H^, 

«' M tl* WmJMiUf eabe#|rui to^aliswec to-ia^Wtrof hii iutovi|tSJifc, la- 

f|n|«tiQo ^ b^ti; Si uTit^ v=/»cialioi|)i |ka4 M^vfteyren ti^t it ^U^ hany 

l^n executed f^^4irg0d, bi^ h^\#i^^t^4 cpmpwipit ofLj Jap ieliH^ 

* ^ct ^rooTtherfeof :, .jM^/'Cbat thifl'andwer is ^V^fb ; tlmt be* ShooAT 9^ 

' i^er M i^tei r qg ftto d, floQprdi*^ to h^ linoi^Mgi^ iiilbrAation and lielief i| 

tfca p iii inw . t *• 

l%>Tlli«pa «lM4iAAdMi( !§ iaHmgat^ 4irftoi(i^a^^^ iia 

^lakiantbiK no titk «D ^ vh||B : iTisA^ thag^th^Coirt mp bot ^i^ *i|^ 
1^ qnc^Mto of^titl^, u^idn at'^i&tal t# tho flvfficienej of tike aSsw^^ aiN |»- 

aMnmapv mwvmt wbhi waapsa* 
J^a TTia ilifiMiafH>ii ii«Hi>tfii p^wm Wari»fciat<to iBabJfc a* 



GOLUllBUa, JAMJABY ^BiBlf, U55. M 

MtUer v§, SaimdQrs H «<. 

[4.] Bat the defendant U not required te ans ver an inlerr^gilory, fbr wUch 
no/oundation has been laid in the stating part of the bill. 

In Equity, in Dougherty Superior ' Court. Decision by 
Judge Ferkdts, December Term, 1854. 

The error comj^Iained of irw the ^sustaining of exceptions to 
the answers of plaintiff in error, to a bill filed by the defendants 
in error. 

1. The biH charged fhe execution of a marriage contract 
between James S. Miller. and his wife, a copy of which was 
attached to the bill. The defendant answered that this copy 
^may be 9 substantial, if not a, trife copy of the deed, bi{t 
prayed that complainant be held to the strict proof thereof.*^ 
The Court held this aAs^r inshfficient. 

2. The Answer failed to 'state the value of a negro Elidsj in- 
eluded in the deed, or his annual hire. It setup absolute ti- 
tle in Elias, in defendant. Thb Ctert required himr to answer. 

3. {The b^l chargclB,4hat there had been a settlement be- 
tween the complainant and defendap|, which^ defendant had 
violated by fraudulently causing a ji; fa. to be sent to Dough- 
erty .County, and )eyied on a portion pf the negroes. The*att- 
swer was silent as to the sending of the Ji. fa. to Dougher^. 
!i%e Court held it a material allegation, and required an an- 
«wer. 

4. "One of the iiiterrogatories in the bitt w^b unaiisweFed — 
\he stating part of thabill being siTent as to this interrogatory, 
the Court ordered ^t to bo an&we];ed, 

Upoi^ these decisions error is assigned. 

ScARBOfiouGHy for plaintiff in error. 

Ii. Warren, for defendant in error. 

Bjf the Oaurt. — Starkbs, J. delivering die opinion. 

/ ' ■ • . 

TlB8«ca8e«oomes up to us, by the decisita of the ()otirt He- 
\0Wf upAl efceptions ^ an sMwer in Ofateioii^. 



« 



M SDPKBMB COURT OF aBOBGIA. 



Miller vt. Saonden et al. 



p..] The first objecdon is, that the Ooort erred in deciding 
that the ^npwer was defective, because the defj^ndant*had* not 
answered whether or not th,e copj of a marriage settlement e^* 
hibited, was a true copy of the original. 

The defendant has been called.upon, in the usual way, to 
answer upon thi^ point according to his knowledge, informa- 
tion and belief, so as to sa^e proof of execution to the complai- 
nant/ He has net answered according to his information and 
b€|lief, but has replied evasively, saying that tl^e copy exhibited 
^^may be a substantial, if not a true copy;" yet, praying that 
the complainants ^^ may be held to Mrict proof;" and* again — 
that ^4t may be proved as charged, that said marrj^e settle- 
ment was'e:ipecuted in manner and form as'set forth, but res- 
pond^Qt requires strict proof and autlientication/' This is not 
« propcor answer. ThcT cpn\plainant is entitled to the knowl- 
edge or belief of the defendant upon this subject, and he must 
so atuswer. . . 

[2.}. The defendant admits that he hai^not answered as to 
value of the slave JEli(iBj but denies fhat this is^marterial. 

It is true, that the titfe of the complainant to this slave is 
herp put in question. And if he be not en^tled to recover thtf 
slave, (he value of the same .cannot be materid to ^im. ' But 
this question may be more appropriately decided elseifh^iie; 
and in the meantime, an answer to this* point is but a slight 
matter. At all events, this question of title was not discussed 
beforeiUS ; and in the absence o| discussion, we deem it mor% 
expedient that the defendant s&ould answer this comparatively 
unimportant question, than that we should *decide this impor- 
tant point. 

[8.] It is complained, also, that the* defendant has not an- 
swered whether or not he procured the fi. fa. in faVor «of Jo- 
S(|ph Ring against himself, and Durham and Saxon as secori- 
ties, to be sent to the County of Dougherty, there *to be levied. 
To this he replies that it, too, is ixgimaterial. 

The answer to this inquiry is niAterisd, in our opinion. The 
bill jchar^ fraud against the defendant, in that^ he entered 
into a compromise wifli the comglainaAts Qf & mat- |pr, aad 



CQLUHBTTS, JANJJARY TE JM, 1865, 95 

r- '—^ : • : ■ 

MUler 99. Skoatos tt aL 

' * 

to certain negro d&yes, and delivered tbe s^e np to 
ihe cxmplanianta, and that be rabseqnentiy conspired with I^or- 
ham itnd'Saxon, pretendkig tB^t as seeinities tk^ hadQajd of 
this jL/a. agsdnst him, when, in trvth and in fact, this was not 
BO ; and ^ levailed on them to aid in halving the* same levied on 
tiiese ftegroes, that they might be condemned as his property. 
• ' tf this be true it is very material ; for if Durham and Saxon 
have only a pretended interest in said /. fa. and are pressing 
it for^is* benefit, this cannot^be permitted. We are inclined 
to think, too, that even if Durham and Saxon have p^d oflT 
this execution as secnrities, and there is other property of JMBl- 
le^ ont of whicl) they may make their money, and jet, l^ con- 
imiring With him they are endeavoring to condemn 'this prop- 
erty for his debts, inasmuch as he is estopped to d^eny the title 
ef ihe oon^plainants to the same, a Court of Equity will inter- 
vene atid torn |he execution .upon other, property. And in this 
point of tiew the answer is proper. 
' |]i.]f But mfi ca&not sustain the (3ourt below in^'eqi^ring an 
aftswer^ the hit6rr6gatory,'as to the length of tu&e during 
which Mrs. MiUer yas sick, before her death. Upon exKmi- 
liatiop, we fJBi that no foundation is laid for this interro^fo- 
ry^in the stating part of the. bill ; and no answer cam therefore 
be i^yifM of -the defendknt,*on*thiB point. ' , '^ 

This rule has been too well, settied by[ Chancery practice, 
«Ad the re^eiCted decisioniii of this Gotirt, to need that we should 
add^ny tl|^ng to what we have*said. On this ground the 
* judgment ^ revei^^. • 






• •• 




to 9ii7P]t%iB coln^ 0^ Qtose^kAi • 



■•" 



Orifflii, adm>y Ae.'«l. The Jiurtices, Ac 



](#..lft. — Bs^jJLMUt F. GRiFFilr, adm'r, *&;c. plai&tif in errqPr 
tfl. Trr Jhmicbs of the Inf£rioe Cotot Of Bakol 
OoiTNTt, Mfiuidanto ifl errov. 

* 

{!.] The OTef-ruliB£f of a demurrer to a deelaiatioDi is not a groAid tot p. 
• MAP <rta/;ereii iflbe orer-nilhig^ be wjrong. If t^ cause of d^urrtr bf 

fluch that th6 demurrer BhoaId«haTe been sna^ined, it mkj qt may not be 

safficient to support a motion to itrrett the Judgment 

[2.] The acknowkdffmml of a debt ma^de by ah executor, if made before the 
dhb( has become barred by the Statute of LimilatioaSi Is Suftcient to tafcr 
ihfi debt out of the Statute 0/ Limitations. 

Assampsit and motion for new trial, in Bakpf Superior Cmai. 
BcteiBion by Judge Perkikb, Novembei^Tenn, 1854. ^ , ,* * 

This was a suit by the Inferior Court of. Baker Cqsmtj 
against Griffin fis the administrator of Sikes, upon a j^romijb^ 
note made bj Sikes during his life-time, anti upon whioo oiere 
waft a credit 6( an amount paid by the admyiistrator finoe tiie 
. jeath^of Sikes, ^nd before the b^r of the S|^atute of LjpitatioAs 
}iad attached. There was a verdiet for plaintius an.d/^ moliiii 



-for a new 'trial on rarious grounds, reducible to w^fv — * 

1st. Because tl^.Gourf efl'ed in over-ruling* clefendants A- 
murrer to the *p1ainliff*s declaration. \ . 

2d'. In holding ^d* chardng, that ^^althou^the adoainjt- 
trator could not make any promise or do ajiy act to <biild ^ 
eatate of Sjkes, by creating a liability^ he *cpuld, by acknoid- 
edging the debt (there being a subsisting liability) Mid piakilhg 
a payment thereon, contbue the liability of the ^state, eo as to 
' take the case out of the o{>eration of the Statute of Limita- 
^ns." 

These were the errors assigned and considered in this Court 

Stbozieb, for plaintiff in error. • 
. IjTOH fc OiiABK, iS defendant in error. 



*• • 










, '•. 



Id ^ «|i|f&^ lSWjiicer,.i^e. jr^i^M Amhi^ ^U^ Cm% 
d0|^t baa l^^p^e , ^nied* ^ the Statutjk. 4 Tiimtititiia, 

11^ oEtsl^ tt^ .ij^jf dlyi 4^U h^ 



alepieiit.pf ike ^f hmy^ia^t(%b< 



d^ki^ji^ of Oja S^a¥*ew 



ii.ex^|t^f4 &9ni !tlie ^per^tiofi, f^ili^ general i«l«; 1f^ 
in support of Ms gosition i^read alate Engli^ ^ase, wbiob if^ 
eertaiq^j^tp pdlat: tlie^iftise pf T\Lllif0k vs.jbi/nn^mi^^i^^tr^ 
€teciaU'$p ( JSkf n 1 4r^^MI6^ ' Bat tkia is^ nfHfrim di- 
eUo^ anft<fve«Vb|b|i^re8t8 ^q iif cite4 >))^j^ n ||ty ar 8iaia4 
i^soft — &M ftlr wluc| Bc^reafiKfti ceuldJU'ptsta^^as I^ink, wUlli 
t^pi^ npl t^%d in^fritated fbr th« oaae of ylk>fit3Eu)l!irleilggi^^ 
9ad6 bj^%4]fc' iBlAttai^^ana OQt. 'wbijbh.ili|^ jhrivite wltb.lJii^.. 
la^ aa ^at'Ttos wderstood ^d ia^)]ie(Uj da«kML \f ^ l«ir * • 
ii{«ld4| yup^' farHaAci^t, a fe\r jaars al^? thgjti^ipai^'iify 
Badet /Ch(B.pipMo^ ,defiaiajtidb, of ii(^«igaf 4ke jakr,. w^ 
made \j.V^^i^ ''J^ofA 7Mr^Vii(^' fiiii4% 



« » 



"^ 







^l#^ I * r ■ . ' ^ > » ■■ t * I * \ '' % ' ■ ■ " "^ 

«9#IK •«>«^ *<^»»«* *t^ Aa^cM^'W 

•/ d^bt, or tf^on the ci^, ponded up(pp any 8iiB|>liQ f^mt^ 
tvfeil nr^MhianvMlfMfftfe #r^ptiiAM,.*by Yovd^^ \t 

#Mtnied si^icieHt efiienoe of 9^i^j oir jcqptiDiiing <X>iltfinoty 
tam ift j^ Wifc «i]r t^ opttfrf^lhiB' <^p4»t>o& (^JliMJf saul^iH 

ItlUMUuf/ ilniiMi^'Muir Velm'oiiSliB^^dt or ))«om46 d^ fi^ 
^#ie ^*tit>^fi«ftt tqi o/kjctte-^iti^jgto^e^sigii^ 
|4Al3rt)to%be tMf^^rt»k tlhWeby :^ai(d ^f ,^T4r^ Ifc^re AS 
^|l1Mi or fli!^^}o)ht mdM^v^* o*!* eaecntorB^^r if^ijiiil iifttofty 
^ W^ c^UlrattxM; «trkfetrjoI|]rt;4^o9traKjtoVeze(n)tar d^^ 
ililM,«ft^H«Ii:m#^ ^iMtof l4e said eti^^ebta^^r efljj^ of 
iheni, so ^ to be chargeable, in respeot or by req,^ o^ of i^ 
•lltt^i/i^ilb^fMjgM^t pr j^roniiae, maol^ nnjji ^gped bj iAj 
filler or flltoTd of ihtiva: fvotnded^ alvvr^ that m j^ons tc^tfa 
aDntae^ced against two or moBO such yih% cotrtfacloiyv o^BiiM^ 
4*rt, •r tdftiitligtniCl>|i, }f k cihall*ippeat «; 4l«Ntt^ or eO^- 
ah^ dlniftln pkinlfflr; th(A%h barr^d*\) j eith^t of.t^o^sftid ^ 
cited Acts, or this Aot,^s to one dr nK)re of such jouit cofttrad- 
#fi^ 0t 4M0Btdts, (rvtdndni&^tofSj'shiill Ife^ierthalljbs Be enti- 
fledto recV^ a^nstaay -other dr bthM of {he defendalkl;^ hj 

* vi'rttie' of L j^w acl|^f<(ihyigiiieB^ or piomise, drctftenijae^ J^f^" 
n^ liB^ ba gwm and cbs'ts* al^wed* ^r ^ * ^in<^, aa to 

"fekeft dvfendhnt oi'def€ti()liBts«agaii^tt«'whon\he lAatt rec^v^ 
Sftid fof the ather d^feifdant ar ^cbfendahte s^iiaBt tha* phoo^ 

a • ** ' 4 * 

KgKT tt K impIWdly^. deRared, bj expredsiQns m thia t^irt of 

tllk Act, thbl the aid Icfvr wa^sucfra^to put acKMNr)ed|$mk^V 

4itLfkfJ)fei^nt(fm and it^^maM^tors, vj^nVhe'Sftne fogrtiA^ 

f# tNkMf mkile W^i^^iiAtii debtors ; dA(f ap fl^at^ft ims^ sifbh as 

ft^^lme' t() adknditiWgmtote idade \ff them, the mve €Seei ^ 

•;i^ gave 'to ii0hbo\t4^gnieBW mdd^ by origii(9.f tlMAdls. Ikmt 

* ' tb6 iitf# 1a,w*«rhieh the StiMie BHike8,^c0n]^«M| in nti^fceMe 

Mft prifldi|A^« It ^res ^cae^ to a ^\ft^ tkifhttfieAffBaet!^ 

Hpim tktAe h^ "vt^ taNotof or adiaMati% t or, \o tie Mne extei^ 

4Bif tti!tbs ^ Ml Mt^oldadgK^nf imade Bv ai^^rigtztal 4ebtM*. 

* ^^^l^% ifM*pfim (W'M^^ tiat I pr^miit made^ the tf 

"^^ ^^PiNpitfr^^^d be sufficiSAt.* ^dtt^'iiUfBit reimoo^is tharr to ^ve^ 









• ir^ -- •• 



.• 



c^tannos, jauoajme nsii^^i^^* ^ 



I fc H i— .1 .B ill ■— „ ... y ■ II ■ I % l ^Jfc^— ^p. 



«Cteej ta a jftwfke wUdi d(M not eqcnlfy, eiAst W g^^ 
0|cy to an a<d^wIedgmeQtr?' %o coptinui^d bJostexKse <7 Uai. 
^t is. the maia tbifig. ^4 if, in any c&se, the acknoVk^^^ 
^ent of tBe* coi^tmne^d ezistencft pf tfia^. ^khi^at a pr^miie to 
pay it, is soffloient to charge the* debtor, if he is an original 
debtor, ^y should npt the ackop^le^gia^ of th^ con^faiieA 
eiistence of the* debt, witbout^aigr ^«t)piise*ta pa^il^ ^e.i|}^ 
aoffidei^t to^charge the debtor, if hebappgns to be an executed 
<i| adnimi0{rato^ ? 

^(^ fa(ft^o€ the dase are, inon^iif^p^edt, of a diflfere^teb^ai^ 
ter from {hi^ of thefaob oft^etsase befofcthis (^^nirt In iha(« 
-Ofae/the fKjlh^wle(%inept of the ejcecdfcrs^vas by ^' woi;a*oWy **^ 
In'^us (b^ac^novIed^imintWas j{^a]|a0Uial4)ayi)^cnt ofaj^arl 
of ^e ^bty-it much »pre «£fte fp9# of loknowbdgment. ^ •^ 

ThAi, it dqps nqt apnetir, i^ tba^ tikse, Jbat that the acl^aowk 
edgm^t nay liave bebni ma^e aft^r^ie del)t bad biMmo 

*v»*- s • • •• • t 

[^.^ CTpon t^ ¥i^ole,. tbiB jCoUft feels* Vimi to*4W^ari 
Hob cp6e, aad'to' dHnsider the kw Jo bdi that an scknoiiMfr 
mentma^'byan executor^ at Kast* if tnaa^ l^ef^e ihb }M!«« 
k^owledged #ebt has betn barred l^y tVe StaK;u|p of Jjimitatioiis^ 
i^ gitf^cieiit to iake the debt miJSf the Statnt#. 

sLnd^^lpai^jbrc^ ^ baVe to ^agr, that* ia our o#inipn, ^e 
^ftrge of tke C^urt wis not eVrOfle«fts. ' 



4 









liflb jn Mror, vt. JoHif Graham and otheitff tananli^. 

[1.] A dfed/aa4^ bptheAcfildeiit^ and c^p^iAersig^d.)^/ the Cashigr a(rthe 
late Bimb of Haiv!imsyO&, is a gqiA A)nyf7ance of land. * 

£L] The law lookt with suspicion ii{>on a contract made between the irutle^ 
m^ cemmgui0iutf and with 8tiH ^T #M fa «\ipta a pt»dMl» iq^f A^ 



-H 



1 



■ • . »• 



i 



* 



i^' ■■ ■ > 1^ I i* ^ L»_ 1 

^e^M« Ytif^y^ oL it. Qfafaatt «/ tf. 



1 — r 



jl^cl^d ly the poli«/ of 'ihe law, bijf voidable only. 

3.]^ Vqjtice to the cashif | of ik bank, ip notice to tl^e bonk itself. 

^#.] The porcha^ of slaves, a^d (he empld^ent of tverseers^in ^Aantin^ 
lai4ls,*if not such^in*(^(3Ujlancy as is customary if^ith i^dnks. , • 

BJfe^tment, in IMugle^'tj* Superior Court. Tri^J before 
IMge TttlKi!r3, Nov^Ber Teta, 1694. 

la^thift oasQ, both pkintiff^and defendai\tf)ledmed|iHidf r tlfe 
mivik of Hawkinsville^t^ie Tan^ In dispate. * Ttfe'cUfbndftits 
1{^ er(or pffevel in evitfoTjQp a deed to tbe land,^ jp^poi'btBg io 
be ma^ \>j tke Bank o| Ha^i^insyille, dated 4th ^^octist, lSyU> 
fot Ike emisiiepfitf^n of 9^*099^ ^nvejmg <h^ land' tb Joha 
Ra^ls. *Th© ieed wa^ sim^d'bjr- JoW &awlsy PAiidetdf Axi 
countersigned hj OeArffe W. Stiiles, C^hief. Ifwasteforded 
m 185S. Plaintms In erfor objdcteu lo its introdiiction*^ 

Ist. Bacau^B Rain^Is H^djio authority 'to make the deeq, Ae 
Aaf^r re<]«iiring 4 board pf at fewlt four (!Ufedtor$*t<{ t^^shtoct 
MelEt (usiaey ; an^^ere nv^noWder on the mpid^ adthoft 
Mam this 4ee J fe be maoe. * . 

2d. Bt!caAse rtawls, as Pi^ideni, held Uiis land as tj^wstee 
ff^jke dtockhel^rs and credtfbrs/rf ihe bank, af^^tuavQ^ 
nibteact or trust in makiqg yu^^eed; ancTtb^ ctee# V^^i'^^ 
i^uM and void. 

8d. il^ecause no corporate Bejl is attached to the* deed.' 

The Govt admitted the deed, and this ^pciqion ia assignid 
48 em>r. 

It |f||ftarfid in evidence, that Rjivls took 'DoeieMon of tl|e 
iaa4, 'tm^f M^gent a«d. negroes, cultivatea^e same Arom 
ike <^|^ j^j^ed ^ed,. 

• Oikgf #«tor9 yf^»jfif$ffp^ hut the Hc^wo/k of. the %ba* 
Contr«lhi* Ae<K v;\4'At, * . ••••,.• 

1C. F. LyoJ atfd 8t?ARWjRop^i, for pi^^ntifb !n trror. • 



• • • • 



|to|ie9^IWf for <kCNUaii||i» esror. «| 



coLxnoMp, jI^nuary TEttxr, 1^. m 



■ ' , j ™ ' ' 

Lessee V-easey «< oJ. tw. Graham et ^. 



By the Court. — Lumpi^in, J. <d6liyeriTig»the opinion. 



\ • 



[l.]*T&e only question w%* propose to eitamine in this case 
is, liPas the ddei from ^.^Twls, as President o^ the Hawkinsville 
Bank to himself good, either as title or opler of title, to'prolect 
hi^. possession, which, it is conceded, continued for more* ti)aa 
B^en yeafs? , . • ,, 

It was assumed in the ai;^meDt, that the concuirreneei of 
fbuf directors was necessary, by the charter of ihe Hawkins- 
ville Bank, to convey land. ^There is no such provision in th% 
charter. By Ihe Sd.bf the fandamental rules of the constitu- 
tion of said corpd^ation, i^ hi prqvidad, it is tru^, that not less 
th|B four dgrectK^rs jhall omidtitule a.l>oard for th^ transaction 
of business. (PciWe, l07.) But by a .sn{)sequent clause in 
the charter, it is declareiktha^ ^^the.-bills ol^gatory and credit 
Bole^ and al) other lontiacts lyh&tever, on behalf of said «or- 
poratiov, shall be binding upon ^he company, provided thtf 
same be signed by the president >ind countersigned or attested 
l^the cashier of ih0 aaid corporation,** &c. {Pntnce^ 108.) 
. This deedy^tben, m point of f»Mn, was soffiaignt. It is,*pn^ 
wut^'aciey a good ^eied. * 

[2.] It is c6ntef«i«d, h«wev^, that th« president of the 
baftlc could not make a good deed to himself ; and ' therefore, 
that ^is deed (s, ip^ojact^^ vpid. We j}o not so underst^md 
the law. Jt lo^kft wkh su^pij^ion, it' is trua, updn contractA.|re^ 
tjiRpen (ruSte^ a»d ne9tHi que tru«fx ViU ^MH mo#e odhnn 
upon contracts made by a* tAstee with hi];nsellL 8li)l, such* 
c%;^^r««tt fire not abaokitely a nullity. Lord Er^kim^ -^w^ito 
Ch«i¥^Ilor, decided that such deeds were void. ' But this d^ 
cisiiMi was afterwards over-ruled. See J7tU ork Hkmieee, Jl^w 
Edit^ 159^ and the aiUbbrities there •cHed. 

Axe'lhere not cirSumstaaces- ^onneeted with Dbis ease, whioii 
gOpfiyrHo relieve it {r%pi suspicion ? Ihe tlee4 was tovnter^ 
sign^ by the tit^hJMr. That officer i^ an impprtai^t functio«- 
afjf ia> bank* In most menied insAtutipss, he is jy^lty n^ieto 
th« whole o^t. The ohar^r mid^ it ^ ivtjr to* W V fwgjy 



ttf supsna COURT (Sb qjmQU . 



Lfissee Yeaiey et al, m. Gttabua et al, 
— . t— 



to all oontracte in which the corporation ^as ooBeerned.* Wiis 
was required for imfiortant parpoaea; and. amongst the rest, 
taf)e a check upon the acts 9f the president. It ipaj be as- 
sumed* that the cashier united in tjiis sale— participated* .in .its 
eon«immation. tt was his duty to hi^e receiy^d the f 2!t)00 
purported by tHis deed to have been paid for the land. The 
purchase money ^was paid or it was Aot. If paid, the sale ci^- 
not be set aside witl^out, ^ least, ve^nding the purfthase irith 
ne¥ or offering to do so. The receipt of the money and the 
retetit!t)n of i% for such a lengAi of time, is suck an acquiei^ 
dbnce in the sale, as to amount to^a confirpiation. 

But suppose, on the other hand, that the pri(^ was not paid, 
w^ it not the duty of the cas}iier*toJiaye unified the direct- 
ors of the faet? In the {ibseBce of all pr<2of ^en, upon 4|us 
point, is not the tnyosactidn relieved froip th^ suspicioil which 
die law attaches i,% this cl^ of ^ontiacts ? 

Bat suppose we are wrong lathis Kiew &f Ae case, andthail 
<be deed is not c^od as title, is it not.g^od, as the CSrouit 
Court held it to b^, at color of title f 

^ The objection to it, in this aspect is, tha4 before the tru9tte^ 
John* Ra wis, could be permitted to hold this la^ adversely 
to the bank, the ce9ti9i que trusty he must gj^ notice that* 1m 
kaid repudiated the thist, and that he oooopiied the land in his 
own right. \ 

[^.] The cashier h%^ actual notiijp of .the fact^ becaowe kt 
Md^d in execudiig the title. To jrhom eke sh(mld notice kaTje 
been giv^ ? The sleekholders, or the direeloi^ or bifth J ^ 
kmow of ne soA pi^aotite. * - 

This Coort ruled, in the case of the Bank of •St. jSfitrys «». 
2t$nfordy (6 Go. B. 44,) that notice to»the cashier was. polite 
te the back. • . - ' .* 

[4.} But in addition to ihis OKpress notice, was net the iwry 
nature of the ptlssession, itself„4iotiee of a& advene 'heldiag ? 
Was ik eter known that a bank bought negroes — emjlloj^ oy«r^ 
seen, to fa^n lands? And yet all this was done by Jofti 
■awto, frofi the dat^of his deed to the trial of th^*aeti«i. 
€tottH ^eHNNik kfl¥% b^n vnsied qr left i» donb% as tb db 



■ — ' ' — ' . -*.-■■ ^ — 1 . 

ToApkinff V0, Tigner. 



^ 



ud^Wnefit tkUlaiid m0 <niltiyated ? 



t 



• « 



i^. 21. — J^H|i G. Tom PEiKSy plaintiff ifi eitor, vi. ^ YoutfGB 

F. Tl^NSB,* ^fendant in error. * 

[1.] A hii^ to B two slaiMS for a year, and takes B^s note /or the hire. B^- 
^w the ^nd of the year, A^ without leave from B, takes back oa^of the ne- 
groet. This B pleada ti a«partial failure of the coosidcratioi} of the note : 
FlMfteWtobegood. 

€!omplaint, \n Marion Superior Court. Tried before Jadge 
ChuwpoBB, Augiiat Term, 1854.. * • 

■ 

ttus WHS an action on a note for. one hundred and Be?entj- 
ive dollars, giTen for the hire of two negroes* The defence 
was, that the plaintiff had, without consent of defendant, taken 
ena of the jiegroes away firom the possession of the. dei^ndant, 
More the jear expired, for wnteh he claimed a deduction from 
the note. • The- Cotdt oter-mlecl ihe defence, on the grpnnd 
^|uii ft>r suth ccysA^ct the plaintiff was liaUe in a Cerent form 
rfaetioB. ¥hi8 ded^on is assigned as error. 

Elam, represented by B. Hill, for platntiff'in error. 

^LiyB%.for defendant in«error. 

Mp the Oourt. — ^Bskkiko, J. deliTering thc^opinion. 

[1.1 One of the {)leas was, that the note sued on had been 
l^eAi0t the* hire ef Iwe ntgreeSj tfir ik^ year 1863-^Hi«maa 
4^ |MndNijMh«M^ wo ia w ata ey w rty fyedalliiit; tha^ 



<!* di . , ■ I . , , i ■ , . » — t i- 



TompkioB v€. Tigoer. 



the plnintifr faftd dgreed' An? the defendttiti t^. fa^ Ik/et^ negt^H 
ismhg the year 3852 ; thai in comUkrmk^ it die fA|ll}^ff^ 
agreeing to this/the sote liad been givin t& limby the de&fii- 
ant, aii4 that on the llfth of "Septeftiber^ 1916% ''the plaiaiif; 
iritly)utlhe defcndaat's consent, took t)iei?otnan from ike de- 
fendant, into whose poBsesBion shci had bever t^rfti if fted— rwbere- 
hy, as the* defendant itisieted, the coI)8idet*ati«n dfthe^otenad 
partially failed. 

•Proof was recei^ which supported this pk* . . 

!rhen,.this pfoof, on th^ caotion of the plarhitiff, was i^iil^d 
OQt, the Court holding as foHows? ^'th^l'jf it (th^ testimopy) 
showed anything, if was that th^ jdaintiff wte h ti^passer;'* 
"•fliat hiring ''a negro was^ a temporary pnrchaiBe, and the 
ouper hSd no right .to the posse8sio|i witbfitt tl|e conqienlpf the 
person hiring — if he possessed himself without* his consent, he 
was liable in another form of option.*' * 

This, no doubt, is a true statem^t of what, ip i^ucli a case, 
4b^ law is. Tohipkins, the hirer, might have brought an actiMi 
of trover for the negro, against Tigner, the mon^eAt the^nc^^ro 
wa&tiricen by Tigoen "There can. be no dtobt abofLttlial^ I 
think. {kobertivB. iVyatt, 2 Taunt 268; a^d*see Stohy bif 
jBtti777i^n^, §§896, 413,) • ' - 

But admitti&g this to be bo, it does not foIk)w {ha^ this teali- 
mony oug^it to hav!e been 'excluded ; for although it be tma^ 
that the hirer might have, {naintained troVer foe* (he injury, 
yet it is equi^lly true, tliat for it he nfighty^f jpe hajl plaased^ 
hkive maintained as9umptit. » The case wa^one of tbbse in' wbkii 
the same thing may, perhaps, be considered to constHute both 
a tdrt and a breach of conrtract. The bonHiact was, tfaatt 'file 
hirer* was to have^the negro for a fttll yeAr. Before thte end 
of the ye«r, the 6wner, without Jeave, took b!ack ,tlie negfo. 
^is was both a breach of the cobtraet 9Cd& a trover and cmi- 
version — a^ trov^ and eaiiv\H|gion, l/ecausa ibe htoer*8. ap^fiBial 
property in the slave, acquired by the contract, hacl not ex- 
imeL . . ' ' 

A«di there art-tMOu ^ases of «p9*e^-pufe<0««^,' ki wl%hp*iii 
*m$mf9im wiHikm4g wMimwit^ ^^Jmi^i > Ji|%MI 














'^»<INl^-M»|<l^¥>|*iiM|i^^6'%i^*<^^ 

•* * < • 'I *V > ^ i. • *» *•• *W .•--•; i !.■ » *> 

4Mtm», tart ji iNp t d « iflflt nijili *JMpfnl|f l# 

^%ia qf^imSl^ ini$ ii^:mfurur»^ Mf IT^ tot m k.lmiial^ 



l«Ql(^dbi« iM»rW iii/i^tgw *«teftf A<|iU<iaT€ t^^ 

^^^^^^^^J ^^^^^^ "i^^^^^^^^^^p ^^^JP^W^^* ^^^^fl^^H^V ^W|^i^p,^^^p d^^p^HI^ lA y^^' 



•i./mi^M^ rvii *.«iPHii^\ i»^j» >^ v^ 1^ 






. • 



« 



'White •n'WaHoi. : 

*.*?' '■ ■•■■■ ' - - *■'"•! • • •" : i »-• .',*• " • « ' •'* ••'■ • 

4l.-i»'' .'"w •♦• .. j' .V* fK\ ■ '. .;»* ^.v •»%•* V'* • •* J» 




: _. 



^*'^ • .5* •• >^ •< »• t'lff ^ — ^^J tf •#. !,« ^ 

ri} ^^pirty moves Af » «eV 4riaf on Ike gEottn4 ^ Ae^T^^discdvISP^-. 

tqtiT, ^efi»^« ift^ f B i liM r ' Wi f '< # f*>^ 




t4» 



y^Y« {be lidhire^ ^e Oouvt rej«o|^ -Ae ^idesee^ and <!%» 
IfefeMfat'ihefredtbr ii iflpw trial, on tjii ground of new!/ 

tii^Miffer toldJun^.ihaJ; Igon badackwDirM^Ato fiitii^ Mrice the 

»'8i4t^^tiMil\i^-1fiM«4)t «M o^nM* of ik» 

K!o^ leroq^Hiie iftotion^ aaj fLslMl^ttt c^cept^, .*^ «\ . 
'■' liiM{^-V*iS^<i,'f&-^^di«tk wor.' . •'**:* 








^ie^jrejpAMfl^ 




• ■ ■ 



My 



*% & tP 19^ ^fieSdiW^ W^^ ^^^ Ustened io 1)y ihe Cofirt*..^ ' Ttvp 
i^V^Sifi^ C^iirt^ ijiereforev'to 1i^ proof of the part inl fail- 
^cbSwtMiCu^^ 'fixat^'b aot b be distmrbodl 

^ mq^^ t^aVt6 ad)|itt'j3lB ^Ti^e&ce, k')^ot io be dSh 

^^^ ^^^J^^^^'*^^^^^^ |;iveh> the bt^tc of tlie dfefend- 

l ^g^^y te>i||^ to' ^t^, hftd not <^iig«d. ,-He had 

;F|l9t^ fl^ wk^ ndt toliftt^ hecB* fransTerredl'iurtil t^ 

^« r t>!it^'lad feiled to prof« !t. '' * •■ ' 

was lk)t aaffict^lly TeriSed/ In •dditioB tft 



t0, itjirtsnig ewjs.1 oa melfiiu. 

' ^ ^ • ■ 

,. ._ . , . f[^i««i>jl.<M(ln>, **!»*?«» » ■*!*•,'■"•. . '■ 

^.1 ^bpWv'M'i^w^ «i'Mr b ^1^ k«ia;«>iff by^« *ia*AflM| 
T'<JTuiortwl>W*tWl i » * i1wy i<'%»irtwt l»n* , i% t"H4> 

.' ^. ,.■'•* J f f ■■' . •.•'■.•'•■.'■■■■•' 

amir, •i»,i<i(4t,>im»r<''ditw.}(MtiB.j.A>^' na 
nut 1^ )iy^ <w,t»y^<»\«K»«iH'-i<»*'>; ^^ yiW"- ■ 

. pi^ fkn'mt >iM. 

lift lit aura tU|kaw«rrMl.:. ',' ' 




'* %Na.».rt.-^>>iiH»!> W i>* )i «»M*»- 










SNte^ , 



•-■»*•' ■• f • 




• I • 





















|>w»1 2«Uft; fdll»\nr f» ^ t | ^* i-6d to i|MMik4U«tMtrif* «. 

li^ d», fMllrffAfi^ MH-Mliied toW p j otw rt d i , aoiirilh- 
0|^^di%g Ail b«tid*k« « fMTfsjrf . |t w^i olawrly •daRMibk, to 
Aim Atf g»#<wt6n» .tftb whieh Mcinrki ^«roM|«cl.iMd^ whoa 

*f«i H iMh7"iQ«*rV# «Pi i( >« flA*Al* it m» ^t««»k)f to' 






* « i »«,k i>.«tel»i»p>< j l» l> l yu lc ■»■-■•■■• : * ■••■''■ r 
Makt o^g-atAresJnieHIHitlf i llli K f I jii l w ) ,«»<» 



, ■..,,...»;..'.,•. ..i; •■■■■; ..?-.:,'-'»t:^ vV)^ 
.■..■•..■.• ■■..'.•. . . ■•» r •■»-,■/ V* >-v-.y>«»» 

*■■■ ■- ,-. ■-.' • :..t»..r.ji.. .;^#v,».#,^ .■ /^ 

,.. . .' .A A -. . • ^ .J. -t ,>••.• -J **■.«• iv^;*-^ 
• -J,-..-,.- ■■/'•■>.■••■..■>....*«.>■•< -i 



'^ '•'^'^i>liii ii ,i i ii v b.i»^'<w»ii>iDV 
y • •■ _ / s" . ■ '■■' ■■■■ ■« 

' "^ V fft 0>iif{t4 Babe o» Gko^' A« ^^farfkM h fe»- 












#liiV""fi''*U|M*«>ii"bM,DpeB proof (]€A<w«fKti!.AWr«MV, 
1liffBt«>DKe'*iinii«Kin ofJhe Antwer by tbe-bnak, B*e»ipp«lrih(^l)|l- 

baufcrvefl'aTi;' portian of i(k iavnl|^^ to lh« ^ash; l>utj>«pMfc k Ihi 



(^Sa^Makeifnik, rfi^Teg«li|^ ^"^ 'P.*'"'^ *^ '*4 '7 * 



. wttWl 



IK Am 



ny ittw ^c, dnd the eiJDilies T«aMiii Aie eaAie- * . ,' k' ■' 

b S^^ h TftlWt Swfi ri oi- Gdart.' 'tlewi^.*b^' ll«i^ 

Cwpoiji. »•««)(*•*« Ti* t»?li • .■,..:. 

., .f. ..,: .. -. • . .••.-. •_•.' ,. . • ■ \. 

' ' the tMM titlk SFQnr^'i ifM^K liltlft^'JkrarM. 
•*«ToBo*li«.4nfli' .' i ._ :..;•.■ Vj^V' ■'^'•■• 

ii^'t|j|>[llill. ttfJB. /|ili|> ' , . . ... '.. . >. <'.> 
CM«rteiK-;> ■ ■ • ■"• * •■ ■ .•■••• •■ '' 

r»7i«fm«y. i i<l> nw . ■.,...-■ .... . , 

!•.»*«)« Htoi». ■••■ ■ •• • 

./«j l>»ri,B«jii.o(:ae5K>;.. , i-.. ...■.'^.':, ' 

. ^ . ; ;....,,„, .^ V. ., .\ w 

^ . TWr» wV> vMt^^ Mr pMa'tril '•■il, oi in^l.' <j^tk< 

.^'•>; H il ll |t>i w i< <M»-i n il m i M i ■*■<>»» 
«U 4Ut'M Die tilH 'iMMaMt; «MMaMkf I 







t :: 



Si JAKHAIIT 9wmt,imB. lit 

• 



Mamuie, mIo^V, Ac w. Tbe Cvitral'Baikk. 

* • • • m 

1^ plea .of non tist factum^ on ,the grmmd above stated, was fled 
li^ Hshone, then in life, and that on the appeal, alfter the 
oayse was submitted to the Jurj, the presiding Judg^ 'baviag 
idiafged that the failure to protest and give notice to the in- 
d^ser^ ctiscdiai^ed them, 'the Central Bank volonfaril jt sub- 
mitted* to a non-suit; that the fact was. that Do«6uch nolatf 
wtfs gtTei\; and anti^ the Supreme Court held otherwise, this 
was held, b} the Superior Court, to be fatal to the olaim of 
the bank ; that the ))ank had beeif guilty of.gjreatf^i^AM in f qt 
suing tbe ioaker*and prior indorsers ; (hat sinle th« i^resipt 
nitfwas bi;oiightHlie complainant had given the ba^k poticcbter 
sue tbo drawer and prior indorsers, which they .had failed to 
do V\ thr^e mJDDth^. The bill farthei; chained, 'that at the tinoie 
said suit was first brought, {lason's estate was not fully adbinift- 
tered, aod was Abundantly able to pay^ said *de4)t ; th|tt comr 
]^nant, as administrator df P. F. Mahone, had nev^r tecaivcj^ 
any notice of this d^bt^ and*bad fully a(imini8tered,»i)d distrib- 
uted the estate, except about. $T80, Vtill in bis ^bands! !Iih# 
distributees of the estate were made parties defcndanjy Sind % 
pftvyer was mad^, that if paid at Vl^^thay should b*e decreed te 
pay it according to the amount receiv.ed by them. 
« ({!!be bill prayed a perpetual injunction against the bank, o^ 
the auit progressing on the draft : and disco^ry and relief. 

The answer of the bank was made in the nanle of the. Ce»- 
Jral Bani(, and was sworn to bjf the treasurer and ex officio di- 
rector, .in the fdllowing ibrm : 

Oborgia — ^Baldwin County: 

Personally appeared before me, John B. Trippe, Treasnrir 
and pirector of the Central Bank, who being swo|ii,. saytf — 
^Hhat the ansirer.iii' the-foregoing pages, s<) far as the^ i^ p 
liis o.Wn knowledge, are true ; and so far as \^ derivoe tb^ 
fttmr {nformation, he beUeres them to be true. 



♦♦ *. 



'. jConp)aiiifti^t*s^ Counsel pioved to take tiie ^ aciswev ^off lip 



> 4. . « ,« 



iH' 'mjtmass e(»j]^T«0F oeosgia. 

-^T- S . 1 ■ 

Mahonei aclm'r, ibc. tv. The Central JBank. 
• • « * 

— ■ • X ' » ' ■ 



At. Because it yraa not made iuider the seal of the b%nk>. 
. 8d. The affidavit was not in compliance with the ^ 11th rule 
ipr Bqtllly Practice. . * •. 

8d. Because it was not signed by Goimsel. * 

%h. Bebause the treasurer was nc/t authorized to .mi^e ap- 
Bvrer for 'the' bank. 

The GcAirt over-ruled the motion, and this is assigned as er- 
»0r. * • 

« ^he ^i^wer stated that thb bank was ignorant of the circum- 
istaMice9^under \Aiich P. F. Mahon^ indorsed tlte draft, but de- 
nied all kA^wkdge or belief that Rowe s hame was indorsed 
hereon, when 3tahone signed h[s, or that it was stricken out 
without Ifs knowledge or consent. , the answer denied .that 
tke n^jfine of Rowe was stricken out with the knowledge {kud as- 
sent of \he bankj^*or whjle the bank was owner of the bUl. It 
tt^kted the suit in 1841y,atid that the case progressed' and 
terminate^ in a non-suit It admftted the notipe to sue, and* 
thaib theb^nk^had not sued, because the parties were eith^rre- 
moved'firpm* the State or dead, and their estates unrepresented 
when the nolice was driven.* Jt admitted 'that, notice was not 
^iven to the administrator of Mahone,.of the daim against the 
estate. . % 

Cbmplainant^s Counsel 'excepted to this answer as insuffi- 
cient^ 

Ist. As to the erasure of the* name of Samuel Rowe. 

,2d. As to the allegation, that the estate of Eason was suffi*- 
clelkt to pay sajddebt, if the bank had prosecuted i^ 

3d. As*to the suh in 1841, and its abandonment by the* 

4th. Asi^ the «cOmplainant's givihg notice to creditors^ and 
dipt|r;fiu(ing the estdte before notice of*tbis*claim. 
»^e Court ov^-ruled the*exceptions, and this is assigned ty 
error. , 

Defendant's Counsel theil moved the Court to dissolve the 
iMinetipAy on ^e growad that the equity was sworn off by. the 
Misirer. The Court sustained the motion, and» this dedision is^* 
Mtigtted^ eitm-. 



COLUMBUS, JANUARY TERM, 1865. 115 

■ . f 1 *- 

Mahone, admV, kc. m. The Central Hank. * 
1 . . . 

Defendant's Counsel also moved to dismiss the bill for want 
of equity. This motion was refused, and the Central Bank 
assigned this decision as error. The two writs of error were 
consolidate in the Supreme Couft, and heard together. * 

Jas. Jounson, for th^ Central Bank. 
B. Hill and S. Jonbs, for Mahone. 

£ff the Court. — StArnes, J. d^liveriifg the opinion. 

[1.] This bill asks the interposition of a Couft of Equity^ fiwr 
ixnrposes of discbvery ; and it js insisted before us, thfX such 
(discoveryy bj syiswer in Chancery, is not ileeded and should 
not be ^n\ed, because, by the Act of 1847, the defepdant 
m^ht have taken the answers df the bank or its officer, in the 
.Common Law case, by interrogatojies. 

The Act of 1847 mentioned, iftakes express provision thaft 
nodiin|*in that Act contained^ ^^ shall i^eclude any^rly ftfxok 
exhibiting ms biU in Chancery, for discotdty, touching the 
same n)atier8."^,So that the conqplainantVrighf fo'a disc(Ar- 
dry in Equity^ is in no wise lessened by tl^e Actf of 1847. 

[2.] The cBief relief pe<glliar to a'bohrt of Equity, whictfia 
sougfit by this bill, \^ the.grant of nertSetual injonctibn. « 

For the defendtfnt in that 'titll (tne Ceytrtfl Ba^k) it is said— 

1. That the defendant Uks afl Ample remedy, by d^fen^Rng 
the Common Law action against hiip, admitting^hat the case 
1m mi&es in his bill is tnCe, and that an injuhctioil is not ne^d- 
^; that^e does not pray to have the paper sued on deKvered 
iq> to be cantfelled, &;6. ' * 

Waiting .a consideration of the raid, that where 'a Coiirt of 
Eqtdty tales jtnrlbdiction for*dI&covery^ rt will emilbrtain it ftr 
rdief^ we reniark, that though it be true that the complainamt 
migllt* defend hitnsel^ successfully dgainst the Common Law 
aetion new pending against him, yet/ under fhe tircuibstanoes 
eet fortl^*this vdnedy 'cannot be ^wA l!o be adequate and com- 
plete. There 4S notfaftig vo prevei^ a diAusaal of the petilioa) 



U6 . SUPREME COURT OP GEORGIA. 

..J ■ ■ . 

* Mahbne, adiif r, &c. C8. The Central Bank. 



if^he view's of the Court should be against the banik, as was 
done when action was brought upon the same instn^ment 
against complaiilant's intestate, and a renewal of it after the 
laps6 of j^ars. And from this the complainant, whp is a<;ti]ig 
in the prenlises simply as a trustee, can be ana ought to be 
protected, if the allegations of the bill be true, by a perpetual 
ijEijunction, which will be precisely equivalent, in its effects, to 

4 

a cancellation of the instrument, as to him. 

It seems not to be denied, that if the draft has undergone 
an alteration or cha^^e, in fraud of the rights of compl&inant's 
intestate, a Court of Equity might decree that it should be de- 
livered up to' b^ cancelled. But it maybe doubted whether 
or not ^hat would be the proper^course to be p\ir9ued with this 
instrument. Othef' parties to it are liable thereon to the bank,* 
anfl h^e no such defence as that«of the complaiiiaiit. . Ther 
better prayer for reliefvould ^era to be, therefore, that whiph 
is preferred ; and it amount^, in effect, to a prayer for cancel-, 
^tion, quoad the interests of *ttie complainant's intestate in the 
in^rurfent! ^. • ' . •• • 

2. J[t is contended that 8ufficient*foundation for such injtmo- 
tlbn has dot Bedn laid in the*allegations of t)^% bill. * I^t is ar- 
gued that thd bill setslTorth an er^^ure of the nitme of Samud 
Bbwe, as indorser, aftbr fhe indorsement by Pet'fer F.*Mahone, 
bubdoes dot shoW that'smy injury re^ulte<ji thereby 1;o the lat- 
ter, because it appeaig^ tbol'the liame of Rowe was tranafeired 
(r<^ the back of the paper, *as indSrser, to its face,*«s acc^t- 
•r ; and thusf the security, of his pt*operty and credit was stS 
interposed I9etwedh Mahone and payment of the biH. • ' ' 

We are. inclined, strongly, to think that when a t)iirof oSc- 
change i^ drawn by a pefsoif, the name oT the aAsceptor b^pg 
ieft in blanks and the same is handed to *a third pi^j,«with an 
iftderser *up({m it, and tbat'thirt) }taerty is reqitested,-^ a MuIUtf 
•f lotxt accommodation, td put. his name after the incbrfitf 
whose name is upoE it, &nd does so, with the understudying 
that ^it is to«be fliscount^d in sprhe baiik, for the acoommoda- 
tion of the dr^w^r audTmlorser, the legal inlendmn^- ot sutli 
9^ ti«nsac4len is, ^haibthe^ lij^nk is to l^^led by anbther p^s- 



COLUMBUS, JANUXKY TERM, 1855. 1'^ 

Mfthone, adin'T) kc. vt. The Central Bank. * 

^- f ^ 



son as acceptor, and that when the paper is completed, there 
will be between the last indorser and payment, two persons in- 
terposed. • • 

We think, at all events, that this bill, though not verj skil- 
follj fi^nled, with inference to this allegation, when its whole 
stmcture is considered, sufficiently sets forth the fact, that «uch 
* wss the .understanding of the indorser, Mahone, in this case ; 
and that th^ erasure* of the name of Bowe as a ^rior indorser^ 
and the insertion thereof as acceptor, removed one of the secu- 
rities, which Be had the right to suppose when he indoi^ecT the 
Ull, would intervene between him and payment by him, and 
was in fraud of his rights. * • • 

The bill also alleges, in effect, that to such change the bank, 
though receiving svicn bill as a negotiable paper before it wa6 
doe, was pp^ and C9nsei}ting. If this be so, Mahone had the 
ffight to plead, 'when sued upon this instrument by the bank, 
turn haec in foedera veni, andiiis administrator is entttled to 
be protected against tb^ suit upon the bill. 

But an answer has been filed*^— the bank, hy its officeF, de- 
nies that it had any tiding* whatever, to do with this*alterati<)n 
in the bill, if it if ere niade, and thus si^earing off the equity of 
the bill, the injunction, so far a(b, this point is coneern*ed, has 
been properly dissolved, to await*the hearing. 
. [^j] Another ground on which the Chancellor has been 
asked by the complainant, in {hb'bni, to interpose hf injunc- 
tion is, that the action on this bill of exchange,* is barred by 
the olatpte of Limitations* -*iVhd \o sustain this position, \i is 
argiftd, ^hat the doctfirfe'of wjiHwm tem]^ occurr^* reipubli: 
cae does not apply to debts due^he Central Bank. This Irgu- 
ment has been rested, fitlEit, tt|ft)n 'tfie ground, that the phraseol- 
ogy of the latter part of th6 11th sectlpn of thd Act of ld29, 
amebding the charter of the 'Central Bank, shows that the 
I^islalure intei^ded, by that A-ct, to vest;ip' the corppra^ioA 
*tne«rights, powers, priviteges or immunities reserved. by law^ 
oV acertdilg to it, ih /vtf^ue of ift ^vfereign capnjcity, in regaiM 
to the colleotion of the b4n8s, not A, specialties, &<?. due to it 
opr to beeome due," oil^«ofar as the ^' bonds* note^ speda^ 



i;;l8 SUPREME COURT OP GEORGIA. 

; 1 , . ^ ■ 

Mahone, adm'r, kc. vs. The Central Bank. 

— ■ ; ^ > ' ■ ■ ' 

des, judgments/' &c. originally ti^ansf^rred to the bank, 
or the bonds, notes, &;c. in renewal* of them were concerned; 
and did not design to vest these privileges in the corporation, 
in regard to the collection of any other bonds, notes, ke. For, 
3ays the Counsel, the latter words of th% section Show that 
thes^ privileges, immunities, &c. are vested ^^inas full, per- 
fect, absolute and unqualified a manner, as they could have 
been u«|ed| enjbyed and exercised by the* State, hful no such 
transfer been madey or such bank been established" And 
now, si^s the ingenious Counsel, notes, bills, &;c. discounted 
from time to time by the bank^ and not ^part of the assets 
transferred to the bank,«by the* State, or in renewal thereof^ 
in the nature of things, could not have- existence in as full and 
perfect a«manner, &c. as. though such bank, had nev^ been es- 
tablished^ and the immunities clain)6d,'|^eing euch as applied 
to instruments which could 'be contemplated as existing, andi 
having those immunitite attabbed as one of their incident^ in 
as full and perfect a manner a&if such^ bank had never been 
established, ergo^ sucli a bill &8.that at bicr not having *been 
transferred to the bank by the Stat^, n^ giyen in renewal of 
one thus transfer^d,* does not •fall within the description of 
those instruments to which thise immunities attach. 

But the argument )>roves tbo much for |he* case. 7or if the 
language specified will not apply to a note or bill bavinj^he 
relation'to the hank which* (his has, no more will it apply to 
notes given.ifl renewal of those ori^nally transfbtred ; for tiiese 
renewal not^ cannot be c^itsidAred as ev^r havitig ei^ui^ted in 
fks full, perfect and 'unquatifi6d**a tniitn^ as if such HrA&sfiur 
fiad hever been tnade, or such bank been^e^dAUshed. Such re- 
newal notes, indeed, tumn'of be thought of ^t^alI,'exo6pt in cctn- 
nection widl the esSstfhce of- the bank. But t])e Statute ap- 
ices to such renewal notes, in {Jain terms, anijt this the Coin* 
&el jMlmits. Thd^gnment, thereiFore,j8 ui^und. {Che piigk- 
ieology -criticised, is not altogether* accurate, but in the*0|Hn- 
i6n of the Court, the provl^n^of ^hvL%»otlon were'Iotenditf 
to 3pply Alike t^ aU evideflbes of dCBt owned by <he bank^ 
^ In th^aext place, if was aHeged that the Central Bank w%b 



COLUHBVB^ J^KVARIT TBBH, ^B$5. 11» 

Mahone, a^'r, kc\ vt. Tbe Central Bank. 

^ ^ ^ . ^ 

not authorised, by kir, to avail itself of the doctrine o! nullum 
tempuSy ^c. because this was an assertion of ^ %8oyere^ pre- 
rogative, and the State omnot transfer or dtlega^e its sever- 
rignty. 

We have no intention of discussing the right of a State to 
delegate its sovereignty/a question -so ^much and J90 loosely. 
tal]^ed fbou^^ and perhaps so little understood; for we have no 
idea that 'this case rests upon a sq}ution,of it. • 

We do. not put. the right of the Central Bank, to hare^be 
debt? due to it exempt nom the operation of the Statute *of 
Limitations, upon the ground^ thht the State *has transferred to 
it any p<ytion»of its sovefeignty. We look upon the twelfth* 
section of the Act of 1829; as containing in the^provision, thai * 
f^ in directing, by the jsecond sectidti of the. Act establi^ing the 
bank, the transfer dto it of all the Ibonds, notes, &c. due to the • 
£t&te, the General Assembly did not divdst the Sta^e*of any 
of its rights, powers^ privileges o;* immfinities, res^.ved by law, 
or accrming (b it jn iiirtue of its sovereign capacity, in regard 
to the' collection 4>f the aforesaid bonds^cfurth^ th^n U> vest* 
the Bai/i rightSy ^c. in the s&id president and directors ;** tlyit 
which is equivalent simplj^ to a legislative dcclaratjoi), that the 
Slate had ^uthorize^ the batik to avail itself of«the,doctrine q^ 
nullum tAnpus^ ^<^- * . * . • 

li 'viill-be 6bQ^rted,*thal these privileges, &c. thu^ vested in 
the bank, ate privileges in regar^tf^ the eotlection of debts due. 
What other' knmunity thi^\its righj; to av|kil itself of the 
princifde of ThftUum tempm could |here b^^ /^ in regard to the 
cqjtection" of these debii^? jl^*e imn^unity of not being sued, 
could ngt hate been meant; for the State could not be su^d 
ibr a debt due«^o it ; nor could it haver be^en iptended that the 
hank sboiild not b^ subject to any cross action, or off-set, where 
it had %vM, for the ' collection pf a debt, fbr to such th^ Sttfte 
WQVdt]^ be*8QKji&ct where iuhad already entered th^ jurisdiction 
oftheGoi^. / • . I . 

Ibis vTew removes all d^cnky growmg out of the idea, that 
the State catinot delagateits sovercfjgntjr, Thjs constderatiM^ 



120 SUPREME CeUfiT Q^ GEOBiHA. 

Vabone, adm'r^ ^c. vs. Th£ Central Bank. 

shape of an objection, t1iat'ift;hVse immunities were ^transferreck 
to the bank^ to Jbe exercised as a portion of the sovereign pre- 
rqgative of th& State, and {he bank^is thus clothed with these 
attributes of sovereigntj, its bills are 6r were in the nature of 
^^ bills of oredit," and its organization is contrary to the Con- 
stitution of the United States. • • 

Atoordipg.tb this view, ^e bank, 'instead of possessing tne 
attributes of sovereignly, ha| no moro power than is* given to- 
it iif the Act of incorporation, and precisely the same as if the 
Btdck were oi^ned by private individjials. In^whiot case, ac- 
cording to the Supreme Court oft the United States, it is con- 
stitutioftal. Brucde v«. 'The Bofii of KenUuky^ (11 PeU 
257*) And in«this yiew, and on this aqconnt, its rignt to avail 
itself of the principle of ,nnUum tempusy^ is not obnoxious t<k 
the objection suggested by tBe Sup/eme Cojirt of AJabama^'in 
the ca^ gf Bank ff^ Alabama vi, OipBon'i AdmW%. (6 Ah^. 
814.) - . • , . 

Ttiere the right of a bank to this imiyunity, fFaa pijit upon 
the g^u]}d*that tlje St^e was the ^ole owner qf th^ stoc^ and 
it jras argued*, that therefore, the Sjate's sovereignty was trans-, 
ferred to the bank. Her6, it is plac^ upon the basiS of an ex- 
press legislative pro^sion, in the Act pf incorporation, which^ 
ih effect, declares th{iti;ime shall not ruh agiiinst the«bank. 

Op this*8ubject, one of the Court (ouc brother Bbnj^i^^) de- 
8ir,e8 us to say, that he disfrystinffl]/ yields^ Iriswdginion to the 
conclusion, ^at taking ^tb^ wbore^of its legi^Tation together^ 
ihk State has vested^ihe right in thc^ (]^ntral Baak, to k^il it- 
self of this privilege; fiivding,*as he^does, 60rtain feature of 
ll^t legislation, (espeeially the provision which aiuh j^r^a toe 
Mink to sue and be sued,") which create some dq]^bt»in<i^ Hiindv 
l^ut.that mem1i)er of the Court^has no difficulty as.to 'th«4)owef 
of*the Legislature lo enact, that the Stahite (^ >Lii|utations 
diall not iiiinVg<i^n9.t the Seottal Bajikj or arisiBg: <yit of t^« 
ayggestion^ that the bank ci^n assert thid prg^legeJ(m}j^by i^r- 
Ipte. of delegated soveiru^tiy. H^.has only he^tltt^^sajug 
Ifcat it Aoi (4mc>-- ,• ^ s . »--• 

fifti; V^tew>ti^^f »l^ pe^l^ tijj^ i»';thaWit;,i|g||ni»|i1wir 



it-J ,t . ■■■«.-« ,j - - - - ■ *fc -, 

^&t "ii; regard l^tbi etfJ^Ak" flf 
'.LimitatnnB, iy the 3(aft, ihiA Bet 

|lWk,' . ■ ■;' ' ■■ 

>d'ti) discide, .vtiett'A- or t^ot ^HiW 1lb 
{'failure of denunijd ai^ "^011,00, pr<^ 
le tadk?' * 

We caimotAgrfie wiyi tVe Col^sCl 'for t^e ^In^Uii^l !4 
tlii9 bill, hw give io the ^6th |e<;t«n of fke chafer, d^Bpenal 
Ibg Mth nqflce, £c. the l^ited si^ifical'ln'V^ial) I14 itacriSeif 
to ft. * We looV upon this po^tt ^ settled bj lie deeWona of 
Ibis fiovt, 'm*fhe JUer&hantfg Bon\ of TKacon iV* ^e 'Cin- 
ir<a^<ink, (2 Selly, 431;) aft<i'n#.(7e»!frflAartifrt« l?li«^ 
jE^,- {IlnSL .5^ ;) an! Tr6 are disposed'to apply Jlie maxiiA 
lAare deeitnt, and to Ifcrd tfiat sueh jemajid, notic^ &K veM 
n^ il^c<;ssaTy in this case. 

f5.] Another aijd'a \tfy important pbifit, is fliade by-Aii 
Mil," tb the effefct, tbat no notice of this debt 'Ws. given to-'rirf 
fedayDUii^foi; pf Peter F. Mahone, Until iiro'rc«t!nn frweKne 
nqpthe B«d elltpsed from Che ^ant of leUera, arfd notif he hat 
distributed a^l of said- esta^ extept tbe «nm pf S,181*M, inlft 
tliat as a comeq^pnce, h^is r^lieTcd fron^ all liaSiiby, pertoa- 
stly, fnn lioje'than'tp^ sam JuBt speci&pd. ■ • 

To this it vas ebjecftd, that here agaii^ ttfc doctrintt 0^ ni/^ . 
hktn tejjtput applies, this being a debt d«e the State.' * 

It ha^4>een beld,_thAt a*deb\ dns t» % ba^Mhg corporalaiH^ 
4U>oi4;^ the Sts^ ovfis the wbolc*interest of tlie bank, is Do4 
m d«bt du% to the pafbliS. {The Mnk eflSbntJL CfowMtcj iM 
#06*^ 3-3^0. 877. Stitcoe vt. The jSknifc tf X^lucti;/^^! 
Prt-Sei.)' - •■ n 

But it i» nqneceesary for tuf n»v, lb fromtnanfi^Q^ ffpiMMi 
■{ton Ahis point. If this debt is ^ » itM A16 1{> tM puUi^ il 
k«f coBTBe tntladed upongtha geiiei»l,p(ovvian» <ff thc.Aq^ 
oClTfliS. J[f'it>foeftflebt.<fa« bo tlt««p>^, tliMw>K«spr4r 
IWwislHl, th».I<ati«I«^itf b* ipola^^'it.aiw^g Mwat . ^]ii4 

MMKvding tolfe Aet tff 1792. „' .^v.( .j., ./, ^ 






>,. • 



x^. w^il^ii ^met dr ^oilGiCi. 



»*^f»»-^i^— — ■ I ^> » ' ^ I » * t ■! I I tl ■ J l i ' I 1 ^l> 



Vj a leeUktM* or intesUte are' toke'^tfid, aiiEd xtM^-^^^^^ 
Ibt af8re9Ai4 e|#||il!ioA,^r6fe^ fq ^^tkbt^ ^e thj^ |fti¥Uc,^ 
jymvng oik%(i^^ Ai^ t]^, mtlie sajaie c^niext aaa yanlj^p^ 
4%s)are#,'*that ^cre£t«r8 Begle^tingto^^fe in a $|at6 of fheir 
^l^t^ wi^hifi*4y iiffk^ ^o^esaid, .tn^ fjceoiiKtrs. of aimiitistra- 
%ai^ siill nol»be liiil^ to'mike ^ocd.Vie sam^,^ Sbf |t fid- 
)(»wa fi^t tke ifOMl aiiMiit(^ hA« a|rpE[e& I0*all tW^ dre4itors 
^ whose>lj4 refcrewje hai bfep^'ilBt made* ^^ of coarse", 
t)l^ f>ttDbc o> 9lMMfm%hg. \1h r(9t. ^ * ^ • ^ 

^It re^t^,«t^at a jud^tfleat ^qvfindo accideri^ only/ilim >t. be 
laken agatnet thi« ^Ivlmstrator, ^f tb? ban^ b«, od jWj^ 

EOKiid^, elitiitled to*r^cbTer,) exceptrae^o the sUnf now in %k 
nds. • • * * J 

^ ^1 We^r^of ^e opinion that*the eurenrnQfaneeJ do not 
^rtkorize the a^ioafton of an equU;jib*Ie bfjr to^jtis demigid, in 
imov/}{ it^e^ctf&){daiifi»Bt, on adcoimt of lapse of. tune,- .^'and 

%Ofti loas^of l^s lights oh prior {>attlie8y*' as ^hk Couns^' e^- 

•. ^ * • 

« ^ indc^FM'ir^ his Intestate might naTe.'taken snohjstepsas Ae 
law authorizes, to have . seciyred^ himself va^iinst the tOss pf les- 
aeniB(g of hi^ stcui^ty, by death or remeval of th6se,wlv>prfce- 
4ed him in re^onsibilj^j, on thi8*paper. It does nof appear 
tlpit be has done qb., ,,«Aiicl in tb^.obpence of any Jibing V> show 
|bis> we haniQr tfiink tine cani{Aainant .diui*be protected^.! die 
Mou^d ^itp m?NHB()titBt #inity sugg^ste^* * * • 

* {'7(1 It |¥M also iiri0i(fted by«the oomplainant, th«t the ame^d^ 
9ient filed 'in this case, per ^e,^ made a new case in Eq|i^; and 
TftM h w#s ^wared, Hhe defendant was.not in order to oioTe 

# dywlvtioii ^f tke ii^aa^iMki. . • » 

t Thltf^^^lr^ prinoipla is #oireot ^no«gL Bvtiieve^ slo €^ 
Ito tbe diftftdkuit's tif^li^ ai% oonctaied, *tlie iwieydmeat pre- 
mmrti HjpNr <Am, and^tke eWyulhsi M tke MWeiiyh M 8»iaw 
■l^te^ tWiMte ^^dbM teM* It hattfti «|^ ffflicatM 
^ Hke ^dtoe MWe w. * \ *^ ^\ •• • 

Vhe potiitt lalah^t^ atfvwor ^tW fie,tind th6%Kdb|>|tahs to> 



»• 1^3 



»^^, SAMJAXt mil,' Vm. V8i 

« — 1 :^ ^ » *^^'' 



till luiyiflyiWyrf tfaA aiiai^ we(e aly 1% m» <>pW^9 v^tM)^ 
<» C i gy egtPy fl^t/burt below, i^Me jttlgiBitixi we iflitom. • 



« • r 



Ko. 35«— W^LiAM C. OsBORK, plftb^ in error, v. The Olu 
DiNAET OF Harris eoj^wtmi ftr lAe i^df Iklbeft X. ISvej 
*)Mid elhers, detenHasfb iii error. • 

£1«] In reij^renoe t6 pardliooB, the estftbfis&ipent of lost payers, {lie fbriMo* 
sure of m o r to ge t an^ tU% settlewen^ pf accoonts «nd saeh like matftr^ tke 
settled Qoctftnei^w hj that not#itb8tai^ing!f by the El^lAft laW-, CfMnoerj 
maj have 1^ coBciii;^t and eyenteKo]^a&e|hifMUtiet> HMf if a fnA^iiiA 
epnj^te rera^y has ^#|i pfovi&ed^l^ie kar B^atj^^ 9v^J.^ WftM of itt 
^vn^ficQoD* ^;i)e9S a^^^ktt cMp*is pMM^ by tl^^itt * 

fS^"] l^.fte^la^fers of* tniff Stale, ample Wo^ufon iafnaOjTor actions at La«r '<m 
^ ^iiard!an8*atet^^ell>ator8 laid otiSIf tifuetee bonds; a^ to thict<oniai i^i« 
ties AOBt Asort) xalieMe \\ey makea sp^ciii ekae by WbM. • \ - * 

•{3.J. ^ rea^ to ^qoify !» tutneci^aglAy t4 a^(}^,t^ Ye^Te|t|l|^ <ff B^ =t »ca 
. *to a tn^ti^ bobd, as by ^ A^t^ ia26*tbeta^ties are siksired te*e«n»ai 
at the trial and mj^e specia^deft^ce, and bave^hebr re^p«<;tiV^re4poM^b^<* 
ties a^teriliiied alid established, t , • « 

I^Sqii^, In^furisi^ltipeHpr Oeurt. Vecinonoi^iieiMrAIr 
l)^'*J«dge Orawf^M), 86|il8mbf r Terip, 185^^ ^ , /^ . .. 

• * * 

SKb bill>aB fiUd Vy the mirtis^i^tMemu^ S. ^tl^, tfi^ 

former guardiw.addliis Sureties, \i\^ill^ C- Oflb;i% W^- 

^iier) on hi^-boadlae^gwrcl^ii^^pr^B^ iQl MC|0iMt,;iAfl allege 

iag a.t)reach %f ^b^ In I^s nSoj;^ to ac^oiint^- . * 

iSie bOt^ai^cbthai AUxa ^ j to^ . HiijBy hki remot^d*fi|Dm' 

Ike State *dF QpQTl^ wAi Hve% in Arkane^e ; tb^t he wa# 41^ 

terly in^vent,. havtag.Siraeted and conr^rteU toliie ifwA u^ all 

^ llieur progerty ; that befbve he left^Qeorgiai he pM^d* iu 

tbe hands of each of his said sureties aasets \p an aui^imt^largo 

^ea^^ to indeimi^ l^ii from aH 108%'byr^KWi K tMr nur^ 



^134 ••• ^PREMS COtJBft CfF GEORGIA? 



^hi^i^-Mate-i^hAJLi 



#k^rB vs: (MftntLrfj fev mse o^ jk^. 



*tfiilkp. Wm^ biW pray^ specific^ Qisi^ov^fy 'from <flie euiDetfes if 
tiie mCMm sncl afl^VMt ^ '{heflie areets, all^itg ihaMItty^ 
yrove then otherwise. 

ifo tbifl* f)il>WilUam C. Osborn filed a genera\ demun^y 
which being ovev-nded by the'Coart> he exdptSd and assigns 
errot thereon. 

« 
WKLBOttt^ k Clark, for plaintif in ermr. 

^ • ^NcAitft'i H^h^^xt, l^r &Wftd&nt fh eyo/. 

• •»■*» * . 

My tie Qoxtrt. — LuMPiy^, J. deliveping the opinfon. 

, ^ Accoii^^t^ tb€ ca§^ i)^de fap^ the bifl, hiM*the eomplain- 

#»att a eoflnti i^Bei^ it^pLnw^ 

\t.'\ 41ie r«iq A««r if^yjl 8^M.e(^*in thid Stat^ 10^ j^at m r^- 
fnce tQ jgartition^th^ estofilis^m^lipt of ])t)^t ^ilpets, f^ iJsret]/^ 

' Mwfe of^ 9a6rtgag%Sf ifte set^leigF^^t ^ acc9unto^&€.,that not- 
wiUi8tan4in|^ ^ tbe $ngheh law, is Idc^teci <he^ Chan^iy 
»aj^ Wve hi^ Qpnciupe9<f 9r en(eo^;i^41ii8iye jittieiiiictionpyer these 
ev Miy olher sd^eet^^Sl, if fb]W'e€ii%ss has hee(i*provided1)7 



fttatixle, fit^vityyld that case, is ousted t)f its J5iiisdi]^op, unless 
il BBeeial oam is made by the bil]. * 




'^l* It vain foi any. 
• The*iiKJri-fe'^^ee <f tlie guaiAianf declsnft t confer juriliilc- 
,tioi. ' Sp'far as the qw(EBtl<ni of jurisoifeliDn l^^onjcemed, tBe 
* rlH^eSce <Jr n6il-ifefeitfen(fe of ftt^ priiieJpSl' S wi^jjj' imtiate- 
•ifel. * TTha* Sj^M'case, theil, id inacR by* the bill? Tt is'nlJt 
• sugfflb^eti^ flmt tjhei^e is'feny (Jompllcitlon^h the afeconnts of the 
*gJiaSlidl^»wl|icl> (^nnot be adjusted at Law. Ke discovery, 
ivetf,ii settght c8F the flon-resident ^ua^dian, "^hpprofornia is 
'tiilltii^any^'tdAf^Wxfhbm servfte'isyiijy^Jl to be*]jI4'^ct- 



iUHrftrS: JANU AUT TERM, * tttf . 1* 



▼- 1 — , *-^ '-^ » — 1 



Otborn «t. Ordinarj^ ^r use of, kc. 



-ed by publfoatloa. Keitiher is «iiy i^ipeal ona^'to th( 
«ci«Dce8 of the securities to make dieclosures.* 4 

It is tnie that the bill alleges that the pjrincipal, when about 
to Jeaye tl)e State, placed in the hands of his secdritiee some 
fit^ thotisand dollars, in money or property, ^^ t# indemnify mid 
«aTe them handless." But the Sill does not seek evdi to pur- 
sue this-a^ a tnutfund, set apart by fhe guardian for the c(is- 
«haree of his liability, nor is there- any intiiftation tha^ the se- 
cumfcS are insolvent or ^nV thinsj of that. sort. * 

[3w] The only teig wlucfe* seen^ \o have been in the eye of 
thoi drafttea^ of ^he bill,» which needed the aid of a Cpurt oif 
^ttity, was the faat H^at thii fund h§d been pl^ceQ fn the 
hai40 o£ die se<$tu9ties-^the coiffplainan( not (nowing the rela- 
Hwe amount or' goftion recejved^b^ each, .HeAce he asfcff for 
ilifortnStion upon that*point, and insists, in tMe argum^, that 
Equity, kbhorring a multiplicity of suits, will entertain this 
bjp^ especially, for the pUfpgse of fulQusting tht lighttf of the 
several sepuriues. . •' , 

What t^as the complainant tq 'do with this ? w^o cotistituted 
him the nexhfriencl^t' the. seporities ? The figror whtch he 
jtetiders is 'net orfly noi so]fqit6d, bu( respeotfuHy declined. 
J^gA. m 0^ jt^^^'P^^' ^ Court h^ thfe. r^i-la thrast this 
hof n i^ipon tbe soretie^ *nolen8 vtden^y wiNi^g car tun^lnUiig. 
*^Brey know bait — II9W be^fr^to protect tkpms^lr^. Y^ew it 
o^tfrwise, an^ did. this conetttute 9 suffic^t ^ound for the in- 
y^oAion .of, ft ^cgtft. dr Equity^ we are i^in met by the Act 
ii 18^6, ^hiqh allows secopties to eome in-ft}^ i^Jre special 
dbfenee at iheatribl, and have a specialf verdict entered up, &(- 
jflg th^ resyectiiFe rights anjl responsibilities^ 

If on^ of the seciMties hadreceived fvom^theih common prii^- 
eipifMindB to protect hipi agitins^ the whele or any part of Ims 
-lllibilitjr, thai stirety became a princit>al as to his co-^etiei^ 
ph iantOi \ And so, jthe, verdict jind* judgtkient, undcOr ^e Sta- 
tute of 1896, would find and' establish. And another Qtlrety 
^niyhi^^o debj^tp the c^ditor, woutd be entitled tacontiM>l 
the ^ /a. to re^imburse hhrnself aeoordingly . . ' * , 



"*■" '■^~ — tt: — » — t ^-5 

talker ^40. ^* Cook. 



1*2. 



So llieii th^ last plaijik up^n whiektlvs bill c«iUd stuidj is 
faioeked.fh>m prider it . • 






t 



Ho. 26.— T.»0. Waucar ^. o/. {dMnliiBh m er^» t%. SpKtah 
** dooK, defendant in «0iT(^/ ** 



rt • 



[L} ^ ^e Statute of 18^4, the Goi^ arl lequioell to receAre a nu^erbl 
•nep^etMt/**at ^jl^t^ of (he cai^ae.". Wner^ a demanrc| to a.bffl it 
OTer*nila4<uid41ie bill aufttained^ toe decision takep &|» by writ o^eirory 
aadVhe judgft^t rerersed i Jn29^ tljat wharetlie cd^e is renitt^*g«aeral- 
l^ i\iaM ^\ a st^g^of the oauaey vntQ IhQ action ,of fte OSurt heWn'tl*^ 
on, and is ^ ot^er to be amended. 

t « 

» In Equ^j", In Hams «S«j^ov* Court. De^li^oa fey Jii%i 
CitAWFOto,* September Tcftm. 1854. t , 

• < • • 

This 'bill was fiTed by thi^ pl^miifia in error, a^jmist th^ de- 
fendant i^ ensOTyJtcr |bQ*recoyeitj«of cerf^in nBcrtes and otber 
fAfp^itfj vddef k mab^^ cbntraOt^ A.*gweipM. d^tirref J^ 
jbiaidant) %eing <jf er-'raled, thf^t decision was eagepted to^ori 
caMed to ihaJSi^^r^me Cbnrt. Aj; Am^ricns 1^^, 1854, AA 
<j6art reversed ^fit de<^oft^ (See the case reported in J.5 
€hL A. ^.) At tiie next^t^nn of fiaArktCoiht,* J^etM^M- 
alits mof ed^to 4uiiiefid tlifeir bill,. by^aUc^gjag a mist^e m the 
draftinnaii, and .proQruig^a reformation of 'the,*contract« Dl^ 
fandfnt's Counsel moved \o make the ^udgn^emt of t^e Sd- 
litreme Court tfte judgment of the Superidr Court, and a dis- 
■dflsal of the bill. 1%^ Couftaflewe^ the ktter and r^mi 
^e mqjbion of cotnplainahts, to amend, on the gK>und that there 
was nc^big to ameAd by.* ^(his decision is assignecl aa enbr. 

The Court also granted an order directing the receiver,, in 
^^ ease, to deliver te Cook all of the propert^r alid t^.profiH 
liMreof. ISiis deoiaiMi is tiso adisigaed as-error. 



cwMntMHiy ^ifiitiAjK' Mrii^ lifel- ^ flU 



•j^ 









Jti^f^ BsKfrore bi^Tiiig been of 0<mn^l in thia ^m^ did a^ 
' 8. Jokes, for .atfi^dknt in^srsor.* • 



• 



• • 



^Sjf the Ca^rt. — Stabkbs, J. dteUverimg the opinipn. 

An inspection p£ th« record satisfies us, that (as we sogg^cMi 
w^i^i this case irss' argned before ns,).the IJ^^^ bel67 plaeai 
t&% JTiagdieift, tl/^r|, solcnyvapoQ^th^ groond, ihal as this Cotot 
had 'decided, ¥^te tbf cause if^ b^foce us at Xnericns, HA 
^he demHTxef shopl^ hire be^*aUqWedy |ind tne'biU dismul^ 
ed*' (lo nse' tlTe ^angnage of hia Honor Judge GRA\f FOKiJ)k^ 
'Uhere was nothil^ by wh|(h to 'amend; and^ to allow- |m 
ac^endmenty'woiild be the same its glinting Itove to file a«ne1r 
bffl.'^ .* . ' ' • ' ' 

Q%i0 beine the language of iJiis record^ it x^ertines to iis that 
t&e Court below dt^ itot consider and decide dpo^ the sufficSeB- 
(fy of th^ amendment offered. We prefer not to ao so wajfk 
foil op})ortonitj, bo A in thli^ Oobrif below and in this Oburt, h 
tforded for the disgu^ibn and consideration of t^e same. Wb 
SmUh therefore confine t^S' judiAnent to the aufMon, A t6 
whethd' 0t not the Court was ngh% ip holding, .theft after th^ 
decision of this C<f^, reyersing the jud^ent upbn th^ demr- 
Hr,it(ere wfts aMiitng in the Com) below "by ^hicB to 
lojbnd."* ! * . 

1. Lttu8*^1[amine this 'matter, first, upon <y>mmon- jirinei- 
pWof ChabiNiry pii&ctice. It "^1 be fonii4, h^ looking to our 
fecords^ that owr jnCgmtet siitiply r^^^MllEKe judgVent of^tt 
CMort b^lpw sustliln&ig tke hil^. Tha\^g^t iTas a derfA^ 
Urn o«erwnHog the iesrailpe^, ^n 4k4 gh>c4d tlult there WM 
mpitj in (be ^. Our ojjtinion ^as, tl^ this flKiMBi^t kavt 



191 /«0B]e|ai3i c«ui^«f <wiftinw» 



-i j! J — . 



of the Court below, a&d Ibe )rQ;^i&g Couit had not prder^ it 
tot be diwiseed ; wh^a the jnclgment of tibe latter ,€o^]reiKt 
belq^y did it not place the case befcfrf the Chancellor -tb^9i^ 
aa a ease still in C/oUrt, but in which the law, by its supiei|(e- 
exponent,. had saui«thare -ys no ^xAj ? Was not UicKAuui- 
cellor, thus left to deal wi^h it ftccording to Law, apd to |hat 
discretion ^ch a chancellov.bas'in ^ej>remi8es, and dius^ 
placed preijisely where he w<n\}d b^ve been, if ne had heert of 
the opinion when fir8t*heai;}ii^.the.demarrer, that there was jio- 
equitj in the bill ? In such event, he migbt^ have dismissed 
Ae tame; or. if a legal amendbient^wa^offered, supplying the 
tW^t-of equity, Ve mi^t bare itcei^ed^t with or witbout terma^ 
as *to costs. *ToiB view derives stipnort from thf cDnAdSrati6% 
jS^&% iI.iSl the Su^y of a Cbai^eHgr to retain a biULSMicI^ ^| 
drlvQ the4>artre3 out of €pjirf,'if this can b^ ju^^ done. T]^is 
.C^urt^as so repPeatedly depided. And. we aifd other Courts 
bave gone so ta^ as to say,* thajt it is somQlimes the duty of a 
Cfaanceilorto direct an a^iendment, (eyen y^%re it is not fbrm- 
ally luove^) rather thtin turn the parties out ofCoxKr^. ^^ 
V9. FarJeery(2 Keene, 590.) Bderts dnd Wife va: Westj (13 
Qa: t29.) In Ais View of the ^matter, «it (ollpw^, thatin (lie 
i^^arge of bis oiut^ and exercifiip of, his discretion as Chan- 
feller, Hbe Cpi<Ct "below, upon^tb^ argmn^nt of the demurrerf 
■light not hare dismisselji tne.bil^ tji&i:\g}i he, had decid^^)^ 
W|e1iaye.sigf(& he. should have;decided, that there wa§ no ^g^i%. 

ifL thejEiilh*b{it be - might 4iaV& allowed or directed *an%meDdr 

• • • 

There w|«,* consequelltly, a .plain propt^ety 4n puttkig tie 
^ase again before him, so that he might \hus exercise his 49^ 
in tbe-pr^mige^. « • ***•.% 

- 2. ^vit4f tbffi ^e?^ be not eotrection gQi|^rU pV&^es^jCa^ 
fl^aps BiAao, conlnuiety qf opiftion^ on tj^s sybje; t Ijas pr^ 
?ftiled,^ it/ip s^9ftaj[)»e4 A^ req^^fadby the >S^ qf opr kst <2ai|- 
Mral Am^^^j >aik>v,ipg ^m^tfik^M^ bo reci^ylifi^tl ^ 



' '') '■** 1^ : . , * f : * : 

■ t f . I ' , ■ ■ , f . I. ■ I I ri 

«7<Miig jieov^ lie ^nde4 ArproteediM l^fe, <rf ^e iMIA* 
^^^akony^ihui plathly enougk.' fdr wSen we/)olt|tfii^wff^ 
daoael moved Us amendm^t, dtt^^Saxn'^ C«Im0I g i | uyi ii | ' 
and* inaisted Aft t they Winre' ^tiiled, first, to moyefnike oaee ; 
•h4 they accordingly urged a right, flrit» to be heard* tkenfft, 
^ when the qase .was called in !t;fl order." Tho^ by the aafhl^ 
fllon of the Coonsely ,the oaae if^ ^here in* the^Gonrt, to he 
*^«aUecl in its order;" and«if thil'were bo, it was in sdbe <^gf 
thereof, it may have been their ophjion, t^i^^t shotild hai7% 
b^ oonaidefed in idi last st^, but thef treated it ^ai^ pi lpei ly 
^ aa we hare shown)- aa in a^atlge^extet^oe* 

If, then,, it w^e there in any.aCage of ita .prjt>ceeding, d|p 
Act of oar* last Legislature, which must be the 1aw,4;ojitf^ail^ 
i&terpdBed and declared, ii^en, this fCniendmeDt yt^' ($j^€^,, 
that it laouM be allowed ^' aa^ matter of nght". . 

Jhe tfmenoment offered mnstbe, of ^onr^e, a.legVl am.en^- 

ai^ent — slnch an one as is^admisAible in 8uc\ a* case. W^94^ 

• ^ the amendment )iere ien(]fered, is W dr not, we So not 

^^id&; bnt leave this to Be detemrincd in the i5rOpe)i wagr* hi 

d[# Cotftt WoV. ' • , • • t f 

Ab ti SQrf ef coynter-guard a^aipst*tbat e^icc^oj^emeht to 
negligence which this free and anreBtricted^permissioil to Amadd 
mfffSt be sdpposed to extend upto parties anu Cowfsel, f this 
Statute provides, that if the J)ar^ ajf^ying 'shall hive heqfi 
.guilty j)f negligence, &c. thfe Court may compel him to pay its 
wi^jBKsifythfi costs,* andpu^hiln upon other reasonab}^ aid 
eqititabl6 tenils, not touchingithe real interests of the etaus^ 
True, Aat the Q|}|ancellor might have done tfiis* preirioi]|ly in 
Bo^ a oas£, but the iMQtc^ lias ^rown vtry much into (^ijid' 
tufle id our State, I bel^^.* C^t8,*iieijy, in*a^il^'stf]ufit 
Hm 8««tffc0,- nitt pyefcab^^lifl^p^teiroi^^ wW pj^p^' 

Tli^ juilpMAt is ticr^ose vei^i^^ - on (he ground th'at\lMt 
Oeiqr^^wioar erredfio d^(^k^ ttet'^e^Uil eooldhot Ve anteSMU 
e4| it hrinf 4h» np%ihtt>f ,lihi# iDaam that tHe« a«0Di[iii(«it 
llii«Mlkvte.bMr4MiAredl, tf t^ i^mmAObM^u jibweftf fe 



'% • 



<My 






J^est^ tw. The^tate. ' 



•^x^^ 



« t 



<Bftao^t^f biMi UUieved that it was a^leg^^avd f^apetameii 
, ap^ot^iii' 8i|dl^* ^ dause ; 'snbjebt, of o'onrse^ to liis 'right, in*^ U 
iliiWfili'fip, t« ph»ktibe terms asio c^t8« 



ameodr 









• * 



/' 



f ' 



f 



, <• 



• • • 



h'f- 



!WI' i!T»*^A«iBS L. HeSter,^ plain^ff in fiV^r, v«:Thb SxAtE 

OF CtEO^ia^ d^feifdant in error. 

[J:,]*[l] £^.] An i»dictment whigh states the offeqcl} in the language of 
• >hjfC8d^ is sufficient. 

[4.] dft the dial of an indictment th(? panM is put upon the aocuged. * AT- 
'teiyards, he i^ arraigaeil^and pleads not guilty. Then th^ panel is again 
^ut upon Uiin :. Ifddj that there is no error in this. • * ^ 

^8C]^0n'the trial 5f. «yi* indictmfent &r arsorf, a witnesd. s#orfl as follow^ 
."witness believed thk watf defendant^ tra<;k, because b^ had .l)een a gocAl 
. d%il^vith4^findanft; has noticed his track and never saw any body ^a 
that made a. track exa^y like defendant does. Defenda^fs toes Jum jm^ 
in|W^lkiiyif more tl^^n any person' s*he ever saw. ThI track witness follow- 
ed Uirne^'otitllke j^risoner'^, and tvas about the saAe size"*: Hcldy that this 
««is l6gal evldenle. . ' • * * • 

[p^]*ftnpri#[)iHnent^n the penitentiary for three years^ 16 not tod j 
ishment ipr the burning, bv«night, or em. outf liBuse not in a city, 

if^'' V ' ' * • • • ' ' ; • 

Ars^, 4n Taylor Superi6t CoM. ' (tried before»CRiwp6RP, 
•ct. Tefd, 1854.. * 

*9S^ efrors assigneel ave th^ reMss^ ^f^KnotioQ i}i arrest \>f 
iluignei^, Vd*a moti^'nr for ^ new tnal. * * 

*Tie hi4ic{medt allieiged Mtv^tSted^nNnlakiKdkl ^^btop aA-osI^ 
k^usB, being then and* thSr^ d com o«ik, ion vtha fkUAtadOft •( 
Bt Ft — the saii corn criUtiol; <hen aI^S t^ere being^ ^ ^wn 
01^ ^fage^by i^eiting fire JL^ ttie ^fkne." MtAi»m^ in aT9e§i-^ 

' l^.«B«iMUde'it'did no^alle^^f^A64MVi9e'.v#i e^someA. 

-1|i.' Steins^ lA'dM li^t iill^ 'thitt It irtia in'4ke.«U^ tliM ^^ 
»t night *. • • • • . #• ^ • 



great arpmi* 
town or vil- 



•OOLUMBtTB, JaIhJARY TEItM, 1856. "^5^ 



Hester vs. Tbe State.. 



JLMV CyAU \/ilU VTOO UU&UCU I»WUI> V V \/lV\;ik XU VU^ UiVBAUUK* 

wtt§ not contignotis to any house, and was 6irid^tKs^C«ofl 
)/* The- owner of the crib was an iti^g iSti^/ mA^fhiy 



8d. Because it did' not 'allege that Ihe' oat-hotttib was not a 
dWellmg house. 

The motion for a new trial was on the grouMs, let. That 
the So^citor arraigned the prisoner after a panel of 48 Jurojrs 
had l^n called and put upon him ; and after the arraiguttent 
theOoort allowed the paj^el to be pvt upon the pri&bner agam. 
' 2d. That the 'Court erred in allowing two ^tness^s to ^4^ 
their* opinion, that certain foot prints werg those %i pi^ni^i;-^ 
they having given th^r reasons for the opi^bn« 

9i. because the' verdict was* contrary tb^the w^igMl^f efi- 
dencef. • • • 

The evidence was briefly as follows : • * . 

* Tiki epm tnrib was burned about 8 o'clock in the %<ftt^£g. 

tfe. 

ih^daybe^r9the*bumiBg,%s bailiff, sold the co]:l»o( pri6dAar 

■uu i W- 'ajtt^. JP^isoner said thai day lo proseou^, that ^he 

goU^iuir corn he should pay for it, and s^er .for itw * IhiNs^ts 

.of |i.8imi|^r charactev wjre proved by sevehJ ^fftn^stes. fidft 

, ^r^^ls/ goJ9g t^ ^nd from the 1>mrned house^ t£roi^ ^lojighett 

ghabi, were proven t( be' sitbilat to pri^onerV, ^h^ VsA a pe-' 

iliikttr walk — ^ttEnMQg got t£e toescnor^^han witVmep usualljk 

Confessions 6f prison^, ths^t he biirned the hoase at the instance 

of oiuB Ddces were^also in evidence. He j^as drintlhg oA, ^hfi 

tiAe, 'tii|Ough.ifbt*d^uyk. T^ere wks in atlempjb mao^ to*im- 

ijpfeafth the two fitnesses who proved these ^nfessipns^* Sukta 

«was introdifced by prisoner, and disdaimed all knowTed^ Vf^i 

t*lt8onei;also aHem^d to prove an nltbi. * • • * 

/The^ril&aal t^ Ixmst ih^ judgment .and grant tf ikfm •triU 

•are assigned as ^rror. 

^ The Court senten<^d the prisoner to imprisonfnent. in the 
"peiitentiary for threi years. Thi3 sentence is alM> aftngludd as 
error. 



• • 



Efr- HlLL and Ch. R. Hunter, for plaintiff in error. 
MMkBT and B. %lL) for defendant iai error. 



WP9Bm <70UR1^ OF OKXROI^ • 

-^ i-^ »i -f •-: * ■ ' t ■' t 

Hester Of. The SUte. 



T 



JBjf the Cffurt.'--'BE]Sim^Qy J. delivering the opinion. • 

. 'Sho'uld'the motion to arrest the judgment have beea sacK 

*aijf^4 ? • . t . *• ' . 

ffhSe fir^ grounji on which the motion was put, was tU^ the^ 
jndictm^nt ^id ndt allege the house ^o have *been cpnsuvud^ 
"J^at the iQ(Uctment alleged- was, that the accused ^did" 
"ttmVtU house* • . • '. 

^ T« b|[fn^has fo(V^s &^t and leading meaning, in /V^^eb^^r's 
iDictioiiarj, " to consume* with fire." , » , . 

• T)^e word is commonly used, too, in that seose. 
0^ is ^ be presumed, therefore, that it was* so. used ^$ho 

^^dtmei^v . . • * • 

. r^l. j tAirAllJ^vent^, ji, is the word osed }n the ^efitutioh* 4f ite 
office of ai»0B, an(f that justified |he use of itin^elndic^m^t. 
'^Ar^en'is t;}ie ms^icious an(^ 'Wilfiil burning of tjl^^ShQa^K fi^ 
omlfcp^e (if 'another." {Code. ^ (jfafj^j .'j^^ 789.y-."fi^M^ 
ii9dlctmei\t.Drjjcci^lian of the* Grand Jttfj, sbal] be deeeAd 
^ui^igi^yneeaDical and coirecf, whfch dtat^' the off^^^b i& 
tb^t^ip? ^A^' language of the*C!pdp, o> so p]ia4n1y %at ihQ na- 
ture oC th^ olSence chafed maj be e^filj, ^derstoo'd hj'fyi 
'7v[vj.'\ •{Cddey'Lsec.ni^diii. ^Cobb's J)ijf 8SS;^ 

The s^ond grqpndon whioh the motion was put, .was the 
onpi^ig^ from.the Indictment of any alleg^ienii) to^oir whAbr 
er«l)^e* ^rsoh cWg^d wae- arson ]il the daj^Amc; or ardon iq.tfat 

, '^ki dtetinction between thesp two ^orts^of arson .is rnnfimfl^ 
bj^the Qode, to punishment — t)ie4egreet)ff)^ishQ^l^t,.. T^ 
H^/hithn of arson, as given above, is silent a^t^ fnj such dtf^ 
tinction. ' # • 

Xi'Jt The ipdicimcnt /^statesrtho ofience in ,the tei^s yna 
langvlige of* the definition. 

The third ground on which the Qiotion was j>utj was tiif 

omission, from the indictment, of an allegation, that t^ faMS0 

burned was not a dwelling house. 

The indi(3tmcnt did hav^in it an allc^g^^n^ that «(he ^#DBe 

•• * * « 



— T I I* I ■•■ 11 <■! 

__ . ^..Jl . . 

J|ta|Bad* W» alk^op^hdm uA a eoia onb. Ab4 Uift^ii eqm¥ar\ 
alinit to in a)lef»tbii/ ihat ,the bQUse w^ notHa c^^eUiag Ubjtse./ 

[3>] BeMtoytb^eibepdooC'* Except t)ie dweUing hofseV) 

l^h Uie motioiuij^ts skouldJSav^ bipen iiegatiied.i{i the I|^>- 
Qiolaieiiiy is iiot-c^ftitifiiiedin the seotioa defii^g the ofiboee, 
hot iA a sohieqaent sectioAy deHgnatingthe ^mishment ipt die 
offJQQe. Jir/JSrtitf v$. Tfte St(Ue,\U Qa. R. 489. 1 sec. *14*. 
jiV. Code.^ . • . • « ' * » 

These* wece all the-grouods of the motion to ani^st tl^ judg- 
iBeot; ^nd none of them being snfficienty the^ Court was right 
in MX'tvXxx^ that-m()tion. ' , . 

' Ought a new* trial to have been granted ? , 

f4^].,Thej:e%, plhinly, nothing in the first ^und assigned 
in.the moti^ for a new trial. ^ • 

IqithQ seoond gjroonc^^ere is something^lmt notenotigb, aa 
we tlunk> to support the motion. This congliision, I^ewerer, is 
one fk whiplv^e arrive not without diffieatty.* « « 

That Uie. opinions of a witness are not admissible*- in esn- 
den^/is, as^a general pro^ositi&n,iindoabt^dly*tpie: jet, ihat. 
to this proposition ar^xBanj^exceptibjfji, isnoWess £fue. •' ^£he 
general laiy oj^^the ^uestioflifof .the VdhAfij^ibUity of {hip S9rt <tf 
eprid^ice,'is eftated by GreenUctf^ in his worjc on Evidence, 
thus : V And^thoUgh^the opinions of witnesses are, in general, 
not eyideilce; yit, on* certain objects, some classes of witnds- 
ef may deliver their opinions, and on certain other sabj^tjjli, 
fl||^ e^bpetent wltnesfi'may expirees hft opinion •>* %eH^y and*. 
4ii*aify i^bjeili t^ wjiich a Yitoes^ may testify^ if be has any 
r^eoUM^on'^al adltof the, fact, lie po^y expressly as it lies ia his 
nifemol% of whidi th^tlniy wjU jlidge. Thus, it Is the een- 
slant pfBCtice, to receive in* evidence *a|^y wifties^'s belitf <^ 
4ftfe i^b^^ ^f ft persph, or that the hand-writins in (yie^tipnivi 
or is npl^K)ehan(> writing of a particuH^rindiyidual,.pvovij[edJie 
Ij|9^^^jfclK>wledge of 'th^ ;|enK)ln bi nai^writing ; ^ an^ if ^ 
t^p^EH^ U^j^ 9Ai^ hi^ ^^Kfcf? {le'Wy be.convieted of perjurjp.^^ 
in^i he gives ota^r yist^noes. • (U^eenieaf^s Uvi ^440.) ;' * 

Tl^ opimoQff.«of tLe two '^itnessecf w<^eh wsre ijce/oeirhi i^ 
thft pi)8e, i^re (flftaiaas en a qusstioa of peraanftl id^tilgr^-o% 



3» SOPgM OOPRT OF CWOfclCHas 

ibe que^(hi^ who ms^ the persott thftt^DMl nft^ cehiain {^folt- 
{NrHife or ^^'traosk^/' foM^ in a fl^ near d)]^ tite .of (he^bnrflt 
i^n^. The bill of exoeptfons 4bii^ gived the^e^tiimcfny, ra t^ 
p^int, o4oo€fof,tfiose wHnesdes:. ^^ Witness 4>elieve8 this vas 
^fendant's ti^V, because he has-been i good jieal 'with ^ 
fendant — ^Kas noticed bis track,* anif never saw ani^ i)oAj else 
that made a track exactly like defendant does. Defendtmt's 
toes tujn out, in walking moi^ than, any person's h^ ever saw. 
Th^trjkck witness followed tamed ^ut lil^ prisonA'*S) and was 
abent th$ same size." ' ' ' • • • 

In this^tatementy the witness^ gives his beUeff!&ndThi| fes^ 
sons for fhat beli^, wluch is more tBan a. witness is>, r^^piired 
to do, 1^ rende^ his opinion, as'loh^iM-writrng, allmissiUe; ibr 
to rqpder a wi^ess's opinion admissible, as Jx> hand-writings it 
is only necessary t*hat ibe shomd be a^^ilidnted irith the hand- 
writing of the person wKo, in the particular oase* is^ assnmed 
to be, oi; to^be not the fiuthor of the jrinting in' «iu)b ca^p in 

, . Whose hand'mjide these'tnar&s — ^hese -letters oh thfi|];M^9erf 
Ar JB^b,^ I believe^ (says tiW witness^) aftd^ am ireH aocraaioied 
l|pth (he marks — the Jeltecs A B's^and makes \ino^ paper. -I 
have seeti him iqake such, his marks, often. Thia is' g(Mra, ly 
evidence. •*'«•• 

^Vhose feet made these marks — these* tr^^s in fiie«sand? 
\ !l^'s, I believe, (s^iys the witness,) and I am weU^ acquainted 

.with the m&rbs — ^the tratfks w^ich A B's'feet maKe ini^tj^ es^A* 
I. have Qeen.him make tbonsandt of '8ael).« WShy is^iel^ t^ 

^ akogood aa evidence? What reasen^s tbend thatb woudd ooi* 
dean tiiis, which would not eqnqjly tK)iflle|nn Ihat ? * • ** ^' 
^ Sdj^ose that 'a hat-r-A hancfrerchtef-^ay, one of « the very 
8^^068 Mich made the tracks in question', ;n ifhis Cftxg^ htAhtht 
. laekec^np' near the site qj^ the burnt crib, might a witee^i hlive 
men asked, hifi opiniSir as t9*whds^}i?i|8 the hail, ti^ Ifittiihif^ 
t^fj tli4 shoe — ^his* opinion as t^ whatKer It^ei" Irene tite W» 
thS;handk^ithief,.the'shoe of the aQCu^edrT^the witoess a fifh 
i^n w^l ato^int^d wijih the acet]ded,'and a Mrien ksvif^ aa 
#pea8»»lpphiaapinioi^, tfa^^t b» hadi^^equmiiy aetn-IN^ 



.'V.. 



\, MS^^AXSSTSm, yB5. 3» 



H^BlMf V4b Tln.^|lfito* 



^q^^imr imb b Im, andi, a htlidSftflrclBef, tfocfa *s shoe? 
li^l^M^'irilidHb D^^Mikecl iff k Uj opBion, tbe nan ivhom Le 
saw at a dktance, dimly iit the obicaritj, fleeing from tl|e sifiae 
of conflagration, was the aocvaed ? ^fight^ h witacis h^ Itsked 
t^ oa o^\lioii that he gare hid c^aMut for h& ofiaioli'? . 

is a "ifltoe^ mi^Jit^ve his oj^ihion in a CMepf th&^rt, and 
we think he might, he*maj equally give hi^ oj^ion in such a 
ease as the present 

¥rhat degree of c]%dit is due to a witness's opinion, if giwn 
in such a case, is another question. ^ * 

[5.] tlpon the whole, .therefore, we cannot say that we ttynk 
thid second ground to haye been such as would }iav^ justified - 
the inraaVinir of the new trial. • * 

The Court below sentenced the accused to imprisonment in 
thj penitentiaryfor three years. This sentence is assiened for 
error^ , • * • • • 

. Section jeix of the fifth division of the Penal Cod(, is ip these 
words : ^^ The wilful and malicious burning of. an out-house of 
another, such as a bam, stable or any 6ther houscf (except the 
dwelling;, home.) on a farm, or plai^tatlbA, o^ elsewhere, 1(not in 
a city, town or village,) shall be punis&ed by impriaonmentVnd' 
kbor in the* penitentiary, for zty, term not l^s than two y^rs,. 
nor more than seven yearSi'\ * 

TSection teQ of the sa^'^ division is in these wor^s; ^' Arson 
in the day-time, (except in* a city, town or village,) shall be 
pon&taedJby a shortei' periocT olf imprisonment aifti tabor than 
arson ooonnitted in (he nigbt." * ' ( * * 

Ifhatmre understand by these lifo sect^ns is this: th^punr , 
ishment for the Purging* of*- an o*ut-h6ase npt b^bg in a 'CitJ,. 
tc|im ar village, shall be imprisonment aiA} labor;in tie pent- 
tfaiMX% for a4ef^ wiycn ipay he as mueff ai9 deyen years,' an4 
wkiali* musi \i% as mtcB jif two years, pi^vRt^ fh^ bulging tia 
dad^ia the nkht^ but if .the bunp^g be done in the day, thek 
thif psft^ment shlH bA im^risoaqit^t'aad labor^in tW pej^ 
toailpary, $fir a term wbio)i|nmt be not a? aiucb aa seven yestrsv 

1% 




iH eypaBMB ,dojmt ^jAj^fjm::. 



HumtKfk u^itkf. 



■ ■ , a > 1,1 



the nj^. * As fs^, therefore, ft8«tlie otM b^ coMeriM^* H»9> 
perfeetly clear , that ,tl(e impViMimieht libpSsed'bV thfe ^0<nirS 
irat foi; a term iio( too grtet. * 

S6 ve see no ,eApr m ^-^ai^teiiee. 

Ko{hiBg ^tie is asbigttecl for^error. Therefore, i^ercf oii|^ 
))0 be a*^enera^affl(nidnce of the deeidiokh oT die*Co^'1>elow. 






• . 



1^0. 28. — Joseph BrAnan, plaintiff in error, V9. Pl£|SAHT J% 

* MifY, Siefe&dant in error. 

■' • ■■ , 

[1.] To^maintain ^ action for an hijunr rece^red from an obstruction m a 
highway, t^o things must concuV : an obstruction in the roAd bj the UnK 
of the defendant, add no ^ant of ordinarj Car^ to aroid U, on the parUoi 

. the plaintifr. 






t 



' • Casiy in Taylor Supeff or jCourt. Tried before Judge. Craw- 
FORi), Octoby* Term,, 1654. ' ^ ' 

This was an action by May against Branan, for the yalne-of 
two muled, alleged t^ have been ^d^n^d by reason of* def^- 
ant's diggings mill- race across the public highway,' witiMnH 
authority of JKv. ' * .* * , ' , • * 

The Coilrt below adraittecf evidehce of {h( use of the road as 
« a puhJic highway. Defenc^ints excepted, .insisting that there - 
was higher ^YifTenc^ — tl»i order of » the IHJTerfcr Court* Thii 
is the fifst erfor^assigned. » . • ; 

, It'a|»beare4 thnat^uy was trav^ling^ |k,Saneiage utth t^ 
Z9Uled, a'nd ajne^l-b bojr as driver, *■ YT^n^the ftfkiles* oame le 
the bridge aeross tlie race* tb^j^ stopped. Ihe negro boy ^gii 
d^wn and ejc^ihined the "bttdge, and rej^orteA that itf^re 'wei^ 
■oxho botes in it. '•May then orcUte^*^ bby to Arife up^Ato 
Hce, to*tbe left of the b|Ue^ 1^ MdfW^i^ iiilfcii(n» 




• — » nr*: — '■ — -7-: ' — y i ■♦■ r>i^ w» 

' * ' ' - i 1 — . ' '•^^ 



C<i«tlMab%r ^Id that ha^'^df ant tWi^ t^e*M&l7atH^;<||^ 
2kM|-|D4b^llitl^*. - *\ • * / *• ' ••*'^ 

Piber queat&Cmfl were^lraiaal, aiMl^o^6nex6«pAoBa dM. «i^ 
necestorj to hfi repeated hejre. • \ ^ i • * t 4 

* G. BiHrJBTBR, for pWttfif*iH ,^or. • v • • . ^ 

• Bi Hali^ for daAfki^antHa ^rroi< *• * • . . *• * 

Jfythe CoUrt.-^LxravKis, J. deKr^Hsg lik% ^Ai^/ r 

(1.} Mia i^leyk'jaw rejjguatm^ fiii8*ae<M< i^cpj^AaHw^ 
aigraiaiildVoneinr tp ^nwort it :* An b|>E|(||tMioii|iB*tb4^^ 
ly tb^ ^^of tbe dBfe»4&«t ; 4^4 ab iMit* \fr ^din'iM^. %««i 
«ji^4t,on^erart(^'Vbep^ivtlC ' {BfkterfieU m i^ 

* Iliia "WjmT a gjCiblic ro^ oxiMitfg kj tpi^ea^xlptldn ;• and mum 

$$m CUM^Vto-pi^e ita^inaVeiKyi Us > U|(Aray« l»«W «S» 
'dMM bl^itltet /heV^H^te^ma ^g a4roft)r|^ ^ difcf4- 
iai)#(ltft t^ withou4' Wct^rity of lay iQi0% VRiaHtoat 
^ Atf <|^-Mi^is tkereV^ve ttajk tmt,' to>-wit: aa J fci i tfiii 
liai^l^ ikp ifal by the«(A^ fftbe dofrikhMt ; aoffk onigr #»• 
Jbq^e, airto^ber ot mM |&e pl^iA^ exApoyaed* aldate^ 



f^*«ile.t».aiefMnt? ' 4* • -% 

g» / ^aa »M Ills aervao^ ki tb4 Mt f^ce, t6 tsvMnlM «W 
lifiga japMif >^t%oe, 'ta aeeefta^ *^lr<Ni^r i^Miad%l»^Ma4l^ 
«rf fa^««( Ae hi«49i «kad^by Ik^ rfiffiig 9f «ie flilii^ 

1 # ^* 






♦r^ 



4miili|{ W cr0iB «r toothy, pW i ^^i^jil^ tlj^ diiyoi? is 91^ 
ibfl j* is w*b^ 8^. and ^^V y«>94 ^*^ i«9t^ msr 4»b^ 

^pM A0> flt'er datorii^iH-iuA ji^tmefo .^ tb(|e^ Jot^-e^r^ •aid- 

4«rft iNUg a^n^-iirfemnjs ^hau^t^'e ^o^tei^ nv^flt^ii^ ot^nw. 

ljp|tjgteci ) )i l w fl f|ttBg^jlefen^ toqgud c;^ pofe w%9'fiw- 

*i&a^in the opposite ba&k^ aocU th^' heads. qjP t)ie m«]^ li- 

. pg hQiA dftwft 1^ th$ igtea^t^-c&iiaSy ttey coul^opf he ^trica- 

Ittd ia tllM to %ave their fives. 

Coi|ld the master, ihen,' acting' ppon the i^Cormatioii of Us 
s^TfliDt, l^ coasidered as h^viillge^rfised ordu^y.oii^? &e 
^d hvi^ follow the oommen practice of th^ pountrj* la it, not 
l^rf ^niveril^l tustom, id ptirs^jing a', joufmey, when «^0D8tn|D« 
^fOti oc^iifs, to consult the driver, and to act. upon ^is opinion.? 
An<tif tlHlSt Jte*^.ooininon«practicey Mr. May ponld Viqji be 
ei^d to tte wSntisg it) ordinary, cap in fojloVng it* 
.\ > itjb^4^0t W>aiift»1;o lake' t)i^ occasipii^ to* Sjiggest; Jl^t 

HifM^ iibai|rt¥>ae^4 f^^8^ <^ ^ PU^<' l^^d, in {hii^,6(iti^|icd 
ili#ii<>g*is at^re'fafrt^itl,) s»l^y^■tKe jyrsy}8-to tift) t|0^miyA- 
^ whlebh^vi»be4n visited v/jpi jtl^ .cliefeiidaQt ^^w ^gm- 
maoj^ is it; i!i de^rihg^ atiew-opuii^' ^^ ^ Uie.'i^cl) on,]^ 
ol^ road, t^ncl.to c^ni^el t];te.tMiv^Qin^ pjablyc to '^^fd&rSpwiih^ 
4b;«ipt ai^« (4^ pl^ructiojlto ia Jh^ pewr ? liaB4.|)ifi>{(a0|(oi3 
^otU'cb well, to tolf^ lie^ <i) ^ir^eiKiy^) tA ^hfei rosp^il^ 4^ 
•&re|er^co.tf lfai/<learfeg|ltt^V3i^^ ^4*lftiii^l^S^^ 

il|)M h^u ^^y cVB^gci^ ft%to Qt^er^oiiyoniv^t jt^^iil 
■Mp» |iiifr-^gle4 df o<^we -origioatigg witk tfiitf Qty^.^ ^^• 

liJii«ety ll^if a«aa UgrJogs of^wfj^d f Gi«a| a li^w^fioii^ 

rf", my hor^c stumble and fling me, I ma^ ^W^fli .m f^lftii^ 
iOa^tL m, 457. ,^e/^oi JB^kyi iV'ttfi^i^ciRi^^^^^t 
^1^ ip)4ii^ Mila.is vt^t9 ku^nt^ iTyr^^r^iTJ^liiVniilJiii, t^ybjli 

oriliwy ^e ^d oaution for Himself. ^ 






(EEBM, 



< «— # 



. » ' " *. 



• • • , 






lAarried fo C !>,' antl prp^osed to R^e pioof^ the saum : MeMy fb^t 9uclk 

(lea shoiAilhXve been %nteHiAned ;*and th|t7tVa:s ei^of In the1[^(niii^ H^ 

l«i| tm ^(ieci sodv {lto»f,%Bd to g^tAlh^^p^tcdkon lot aJM^^A Jkif^ 

aUo, tb^ it «^^ coy^yteni fpr the iJudge, i«;^tbQat*t)w rfd af « J^irj^ te;i||iM 

tried aha decided such i^sue. • • •• ' ^ 

t *•' ' • • i ' • ' . I . ^ 

D^orce and afifnoiiy. in St^artf Superior (!!o|irt. ' JDeoiAiQ^^ 
by Jiidge t/RA^FORD/ October. Teaij, 18^ • \ 

C^thei^e Ko^ebA*^^ filf^l for olv^ree^ Al«t^'d^ abA-oqii^d^' 
a^Kery and pruel tpe^mqpt., «i^'aj^|Aoati<2i/ ^P^f AMflli f^, 
ie&^rairy* jiliihbft^* ' Jwes ^ fto|Pjhenr|^ ^ fva4e ^ ^l^§k:» |lta|' 
'iholigh jBsrried m.j^ac'i^* to JibeHKnt, ^ iQagriap^'^W Vt|tl^ \m^ 
laS^ because siie }iad. a I\viqg hiiBba^ H*^ f^^ V* t|intiayi» 

I^ye'lb'^d^ fa^y a^d pi^y^cf iv Jury tg dej^jtfpgid tj^jM)ii])p« 

mriyiapti^: . •• / ' • ^; ;^ .. .• ; \^. • . 



ij. .ij. VT (mRUA ana J.wJgws<ji»| ^ox mamw u? «WJf-^ .^ . 
' TucKBlfr^ ^ EAWij* ()1 dofeh^ant in enw. * \ * ., 

' Ih^'Cbmtielcrir'Beetted tb*tUnk«tb»t the iinifi0 hi #ti^t' 
iiUb aiinrer to'tfai; pifij^^n iW alimq^y^ ki4 ^I^Ittf/MiLlii^* 
mod iHdi flft' df(fe^Q^atit ip emr > for jiiiob ^^d^oiwoii tf »d- 
j||ped iiMk'teaaon ifbfihe SipwSL sbould f^pt ^'r«k|^ thai 
wfim'paii of di^age, at^ 9tdt for ditoiy^ ^lipon^ irijl bd^. 
"dlcreld, alil^t a$«]ilatiet X coarse. . 



Shia f^le'is con-e«tfr Btate4. It^Wtned in-th^EoeleBiksfi-' 

Hve 'a^«pt«d.it w t)^fi4»^ {Sie&ee 04 ifo(?0«, 10 fhi. M. 
iSi. Methvm vi. l^etftvin, 15, tfa. 97.)> Bat «^ thiak th^t 
tk« £ttfwb 1Id<Hr>eiT«<lin 8UM>e^ii]g, tHat ia Ifae -csM'itefoM 
Min,-thia)niVreg^r^ htfptcr.rejeot tKe ts^e teifderetX * 
JHis^«lor awumcd .that the 'marriigfe wa« proven Ify'tiie 
adiui^Sim oT the^plaintif in errji*. dOn'thc ooHtrai/, he ea- 
g|«s61j 4iH0<l H, rilo^n^ thbt |}ie c^Smcaj^ 'fa|id baea per 
M<)bd, iAmi thd partipa ver^ suppose;! to Uw hsek named ; 
bA that the defcftid^dt in error was, af the fime, a /flne iv* 
nert^ bat>^ sflavful bosbahd ()fen.in life, apd wtio is'Bti)! in 

Jte, ■;■•*■ •■ • • 

, Tbe marriage beiAg tbOft'debied, -^We uta no pr«qf of it, 
ph)^, of it, before ^e 
teAAked t^a 'oAii yi^\ 
, ah«[ h8iV« baaril.lihe'e«r* 
Iti ^rwiu'te, for the pur- 

jbat tQ aJWw tills in^i^^ 

|i fke £as^poik itSi^J^- 

t, Kstlid hpon tii^ ehfKWi* 

of aduk^, l^txigh, of Gonne^ tliefo coiild hsv^boBQ so 

'vH^^j ^thoiA a na^ft^e hetvecni'the partief ; je^ tbedjuv 

riagc'iwrfu prffllAfcarj — 1 Hittter y^liinT^ry ivi.ttceaafxj, 

net oi^y «o the ^c\j4 *An]texj, but to iUi^ rj^E.irf th^.d^tbo^' 

aqt*ia Otrir to proMed irit&'her'citit'&ir divo^ ; aaf tbb' gbt 

•r Bub6tance*oC tb« qpit, ifitir the cii*arge af snch eandjKt pa fta 

par( of ijie pkiatiff jti etjror, asantlibrlJeFVth^ Court'to diawV^ 

Rack tiarrtage, Tbe riije that th^Cowti will not ingiucecuM*- 

I/.iatb tli» MUtB 'of Mii-. ^W thr ^iTor«e,.tip^ ModidwaSaiV 

i^ewlHdfef.tfce iO^tjiBjkt^'yifB- 

I'as p,iu;t of t)^g ia^^fia^^JfQrit.i% 

the propoeiti^i, WtMfiP Jflfiotj^ 

iCf^i thft (t^_ciu< wnl m»,t inqjlire ]]%. 

fflUp^Hhc^foffi i^' t^at' ii|>Q|i MM. 



COLKpeS, JiCNUABT TBBiM, 1855; X«[' 

» ^ ■ , t ■ ■ I ■ ' If * " 



liiigy dosely iiiqiii{)e into tbe gnilt of the defaqdant, imd 
tki pWplipt's right, to a cU^orcf • And this .ve^y rale, which 
t|e^C(ft»!t b^}oir invoked as a guide in his judgpi^nt^ predodes; 
Ihei^fpirjr into the merits, onlj^rfiere^ such marriage is pro- 



'Bttl #hibt ire ^hkik the Coicrt should hare heard proof as to* 
the fact ia qoestioD, ve do not i(^tj3e vit^ the Govnsel for pliitt^ 
tiff in error, thai .the issue should have heen submitted, to a J4- 
rf^9 By anolqgy to the* practice ef the Gocjedaatioal GonriSi 
tlw ifuAgb^if9» bonipciotkt to hi^r and decide uponUhis and aA* 
otbnr quetflions iv^eefiftapj to a deter minatljion bf^he app^icanl'^s 
rt|hi id aliiien j^ . 

iMTIhe^dgment be revetsed. 

• ' • • • » 

*. 



• • 



Nb. M.^-iRicRARD J. SNELBixa, ' administrator, {cc. jpiainlaff^ 
in errofr, ^v$. Sarah DARRfiiA,4)y'her next friend^ W. d^- 

* 

[1.] Vftder the Act of 20th Feb. 1854, U> change ^and ^mplif^'the preetiee 
Md pl^iagilfi tWf State, n.motrpn for a mw ^toial ma^be ah^Wipd so as 
tkaiula^ an addttioo&l ground, (fot (^eo atf^ time the appUcfitV^i^iraa 
filedf* . • ■ * 



m 



* * « • • » * 

In Sgoitj,^ %nd motion for'a new tA*ial,,in SWart* Superior 
C<|Mt. Deeisicm by ;Jlid^e* Crawfor^j^ OottJber^erm, ISA.- 




<€jj^ #8 n&^n^ its erroh 

The bill, in tnis casp, wy (Aed^ to recover a |e^acy nhder ib^ 
iQl^ft f^rj Ck^aju . By* -th^ ^^ he jSeq«e»lhed tibeilMilk 



14& SXTPKSaSB JBOVP.T 07* OBCOMNMt. 

1a ^ ' ■ *» t m, 

Sn^Dg, admV, &c* v«. Darrell/ l(o. 

— ^ ^ ; r— ' ^ 

of his. estate to five legatees*, hia daughters. A ^«'^hg *Hr^^ 
item prescribed^ ^^ t hereby direqt th^t the de.Yisea aii^be%Qe8llb 
herein made to^miy said daughters, shall be entiiQa atic^ .firtM^ 
from, alt claims in their behalf; and if anj claim sh^ufd )»t ^oeti 
up, at any time hereafter, . against my estate, by any of 9if» 
d&ughters, or in their right, for the hire of negroes, or for ray 
oth^ cause whatever, I hereby ^rect that .the diare of my es^ 
tate heve^ giyen,*Qf' suQh as set up such da^, or in wbosia 
ri^I^ the clum is .made, shall be whoHy forfeited; and saiA 
shate.be divided amopg my othejr da^g]jdtirs^ pftrsannl to the 
dir^otions of tU^mV w^.'* The will bore "dat^in 1889^ Te^. 
tatpr died in 1848, without changing its provisiotp* SaSm^ 
quent to 1839, Darrell and his wife (one .of i^e diuiglttefl^) 
brought puit ag^mst Canaday for ihe hirer of certain metroes. 
Prictr to Canaday's death, ];he«suit was dismissed, at his •eoat 

Snelling, as %dmi]^trator of Canaday, distributed the*lega*' 
cy, exclud^ig Jj^h. Dfaorrell/ * 

This bill was filed to recover her share. On the trial, the 
Court charged the Jury, that ^^ the intention of testator was to 
b^ Arrived at by settled mles'in Equity, and that die r^ks of. 
constn^etron by which the. inteptiott uras arrive^ at, was a ques- 
tion of law for the Court; autf the Jury were b'ttiid^to wn ftoot 
the opinion of the Court" This charge was the first gtound 
assigned for*a new trial. * . 

^e Ooifirt fu^her charged, that the complainant ba^ not 
forffi^'d her legacy undej thfe wm*by,the 49mt, during het^ las- 
er's life. This is the second ground taken for a new triai. • 

The Coiyrt refused to cl^rge that ^^ dead mf n coultf hf^ve 
no estate," bi;t charged^ ^^ ^at & q^n'ipight l^ve pr«per^., 
at h^^ de^th, Vhic^ mij^t be a(kd wa^ usually calfed ^hisle^ 
tate'."" T&b i; the thfrcl ^ouifl't|Jsen for a new tdlA. 

She C6uit aPow;ed ecvi<|l}niqs4e be given i(', to show Ae m3m - 
of the* negvoe^ uid other items of -the legacy, at dbe etiHe tfftie • 
tfii^; and abo the eplnioim df,i(^t)iessed, as tb the.i?U)ie of dil 
nejproes, their ages and general condition beiM #«rotn to*lgf* 
otbera. This is the fourth geomaa.Uj^en for a ^ew trkL 

fhle. Court -oUu^d thttrui^,''A«t tbisir vef^ict <yAfli ^ 






§belfiiif, adm'r, 4c. vt. D«tr^#c. 



I I 




', the B^poes liaving ^^n ^tribated.* ^ia is^ 
grooid taken for • new trial. 
She Cjpnrt rinsed to inBtmet the Jury, (after their d]8c]^arge)r 
tt> dw lfsi to Ae Gennael the calcnlatidns on which their rerdict 
witf basedy which were admitted to be Btill in their possession, 
tte €oQrt statiA^ that it was discretioteary with the Jury to do 
i0F4)riiet. Hhh was another grotind ta^en for^a new tjjrial. 
\*Aiither.groirad wvis, thit the rerdiet was for an excessive 
itmiBt. On tUa gh>nnd the Oonrt Selow e^Kified that he had 
. itiadf m Morion calculation, himdelf, which resulted in a larger 
«A9vit fbreoiQifdainaBt than the Jiry ^nd. , 

9b» 0^%Aniu\g df thia moli<{^, lo^ a new trial, on the sever- 
^Itgf^pniB stated, is the error coibplikined of in this case' 

5%6ge il^TfKitfQ having been oPConnsel, did not presioe ioi 
IBs ea#e/ 

Tuck BJi .and H, Holt, for plaintiff in*erroj. 



^ ^. • > 



8. Jones and Gaulden, for defendant in error. 

• « 

Aj( th^ Cowrf.— l!iMPiyNj J, dfliveringAbe opuiien. 






{l^jtHas a paity the right tt> amend t^ mo^^n {^ a n^w tri- 
al at tlfe iMnng, so as t<) iochlde other ^oindl beijides those 

lieirlf dJApover^d testimony was the foundation of the ap{di- 
eatiom in ebe ipreseftf caae.^ and i\. Qtmrnsted of two itand — 1st. 
-A iret«rn made fj f^Uihg to t&e« Court of Ordina^, in 
.Marc;t>f IIB^ ,whi4i |m^ swears he aea9MJ;ied far'dilg^niljs- aad 
waa^aal^le t^ Am at the trial, tf^ wUcbiie^ifisu^ wHl |flow 
«iU|d|»b*edb'd|l^ ofcOitfaalq^^O^^ tfWm, of f llfiS i^ 
aBJpb»wl^'he^^been»lkf«ed«)ere'f^ ^y. Ihe^ndaMe 
/^ QM Oaorge^ttiak, by whoea Uto d^Bdi|»»fi i ^ p e| p s te pw^ 
th^'tbe coaiplainants \n tlyi-biji^waw ■ijjiihyi If li^ta|t«ler, 
ih|»^ iKi jftA hia«|it^aAMk. #M^ ii««Mh^ ot 



I * ^ T — * ; : , 1 ■' ■ , ■ 

■ t i j « ' I ■ . ' . I ■ ■ , > I * ■ I ! -^y^^i- 

;^ 'daughter'^ legacy, provided she bf ought soit vnfffk*'^ «Whi 
which she set uj^ to a portion of hJB pegroes aad ih6Aiie<;<iw 

Had the defendant fhe^richt to smen^ his n4d uti^ so arflo 
mclude tins addftiqpal £roat)d ? If so, be must 'deii\:<^ it^fr^lGi 
the Act of February, iRH, ''to change anc^ smfXifyfV^^tt 
and Pleadmgs hf thi; State;" {I^uno(m'$ *!pifff. 20.}' £v m 
the ifxetmtors cf R%ggin%v$. Brmn, ^12 G^. M* ^Wf ^ 
Oourt held -that^a. rule Ain. for a pew tried^ oMld not be ^mtofl- 
ed,bj the addition of pew grounds^ after the, apfS^Iki^ i&s 
filed. By the Act of the.kst lie^latore, pt^etf plaint# tr 
defendants, wh^th^^ in Ltffr or ip. Equity", 9,^4 jafliftfady lis of 
rfght, to amend their pl^adingSy in aU respects^in tfny^ p >y g8 »f 
the case, subject, however, to be taxed by the Court wjth petts, 
prcfvided the party applyiifg has-been guilty of i^e^fgc^ieaf.aod 
subject tor such other reasohable and equitable term^ as Ike 
Court may see fit to impose, pot affecting the real mewU of 

thd caSe. • ' ' . . 

- « 

Is, then, a mbtion«for a new trial a part oPpleadingB in.the 
cause ? Pleadings have a restricted as wellti^a g^eral i^ean- 
ing. The one is denominated regular, and the other irregdiar 
or collateral! pleading. Vjie former begins wfth" the declin- 
tiop and*t^rminft/tes' -^ith the issue "of fact ov of l^w, />p iboA. 
(See 3 Vol Black. Com/TWlePleaislfng.) The lltt^ incTdiM 

'bills.of e^ptiqpsy wl-its of ei*ror^ motions fer^new Ma^s Itod 
eyery tl^p^i^l^di tV^msf^res thup iiig the progre0i*«f tiHo caoie,^ 
ftom its tnception to its consummatioDi. {VSinMr*$ ^^IbHtg^ 
Pieas f P)emt. A) ' . ^ ' '.•.•••■ 

The* q«estien then retmrsr^In w^y«b sehse Ad <he "^ Q^jneral 
Assebbly intend'.to ue^ toe term in tbif S&tsAe? Wb oma^t 

. kesitate^ to bonckdl^, takiig ihe frb^lo t^iAr find $$fiTitm^*mr 
Mm^ itito ti^e atetoitetf thaMl^ te#m pleading w&i dfsigftiecl ^ 

,bfe used i^d its hn^ ^etisl^^ fftd«thBi,,*««ilMqoenlly it ^ttf^^"^ 
mtftkmtdf a bo^v^ trial-; tu[id*tD4e<kK^ea8>eeronai7,trf4ta|^ 
lluii^tke s»af l#y^ie afpmdfd 60 a^ lo ineUle^^a flromM i$^ 
tshs»*wVi ^ ^ffify}%tm nftg^fwl. ' * ^ > 



^XltMSm AV^A^r flSM^ 4M6. MP 

■ f ' - - ' — ^-* — ! — r' * = •""* — K' ' 

. ' ■ ■■ 1 I' f^ ■*— ' ' / < ■ / ' 1 4 '*- 

1^^ tke pur^ lu4 lOiC ofl iniportiiiit nghi^ he^is ebiiUed to rt- 
VwM^ Kovtbe^jittTvUe t^^e^ftl^etaiattvr is thta,: Ske tiS- 

llHuil^'^ ieBiit^r said oi.,d2!, lifter .^MlplAg^ii ipU, ei^ li^tjjU 
Ij^ w^^uip^oei^, ^^l^&ed Ib.W one of thoeo 8^^uB(iui{ air- 
ewMUEiMy9.i«fBir^ loin. tSe fccH'^ ^ ^ Usl^^ ^ Vhioh ^ 
irill itf io b^ iotejppMedf'V^ .irbicb'jldi^.be (n^^ed by piM]. 
B«i tlio ifiliqni 4<^ 1^,* ^nf^ *tijd - enqpbg J^aroh, ougfirt ,ti 
Uve Ik^en oefbre the Jtucy, tc eli&bhi theti^ to take, a oogreol 
icgoptOifibetw^Jkthi^peafies. Ike;dubit6, accordoi^io^eto- 

iitrator^ apoa the laecllpts and f^iidi|il*e8 t)f 4be oontef M^. 
-pkilofiii'tlieDy the' oompJatna^ts wfll spele tbeia decr^ to fhe 
ainoiint«of their portioa of tUi^awii^ i^HillitevQst thereofij^/rqA* 
Mireh, 184^, to the date of ^ re^ovet]^'^ nev trial most be 
giteted^ and ^ is *accordingly orde):ed. ' . \ * 

^ 'We w&nfk^ the jndgttient beksvr upta .aU»t;£e btber ^om)da(t 
«iQma^|lg, merely hf'mf 9^ rit8^r?%6on, that in ^Veeeri* 
bing mlee 'for iiitc^f^^fttig^lyi}!^ 8<^ 9iiglit v^od^citdo^ 
in fliewtexjiw emplo$)^ ]^ the Chmrt wcHcdd t^velbeeb deeifrabk, 
viftlf a yifir >o greMMr ^brniy^y* ^ W^. aontiewbat (£qii^^lie» 
«B to irh^dMT/or oeit^tlio t$0k^j et^B^ynp^u i«# Mero^ 
i^ild hater b^pfl^ ft,* v^ ^ ai^pearcvf fiiat it ^a9 A'e \Mfii 
«jiiQh. the natnt^^ A'^ <^ admitted pf/f Xo say t%e mV ^^ 
*it, It vu Vc^*Tag«k and of&rfwftiatory ^ sefre^y ^d!wte %! 
oMdaenbtlgh^aMiiilibet^^iWrdict.*; * 



♦ , • '.• ■■ • • • • : 



! 



« • 



Heater w. Tboi^tate. * 

^ ^ ■ ■ ■ 












.- « ■ • J' • . I m , r -.*-.. • 



ACUi 4&^ of FebruarjCj 1B64,«^ tKe/.i^fliQ ^^ed mp, w^ .ij^lt^d'^j thi 
Solicitir Gcoeral if they^ad anj cqpacieanous temples aiS tp capital pun* 
i^^nent, and ^o*objeet)bii wa!a mdd^bjr ^'"prisoW or^is CoQns^f the dt- 
H^D^jtm of ^ • QoiKt 00^ Mug calM^io th% -siaine; «ftd^ &) •d)#d4on pfo> 
Mlw^ed fh^^r XMtf^tlubi nf ^iror vA9 opBUftHted by 1)m ^6tiil • ' , 

p^ fthe.Oouzl wAsViskod, jpet^drafly, ^jth»< pii^on^^ Cpvnsel,^ ^, Jpit. 
yrere about '/"iPtiiring, tJ onar^ themj'ks^to confessi^sj'' Whm^sliJbe. 
gft^c, thQm*in chgrg^tbe geBeral^ principles on ^ih subject, in ^h'cb bf 
^Stated^tbat i'obfi^sions, ^ben freelj aad Tot^intafKj ipade^Vere t^e bigbest 

- ttiA of,«Tideiice ; .ba^io the ccgj^mm'oi ^U J^mstkB, 'also t61d ^itblinbal* 
^ff^ ippiV weiglf thetir m «p^ oiher^testuncmy.t 'Jfe^ ihat this o^ai;^ uA^ 
iiiar the circumstMic^a^ was ^nfflcfenilT ^orr^t. • . , ' 

\^1 A GourV sbot^d lu^ifitecfere with the v^dtct of the Jonr, becans: tfer- 
dbal* of the principal wUnedsIs irere ifitoxieated at the time of the*tr ansae- ' 
'tiofa, SC there be etfier %yid^ticp^ and espediftBy the confessions of ths pf^. 
Oiler, to suoAort the verdict. • * * • ^ '' ' ' 

1^.] ^ Volmz^^aigF^ dnfnkqnaMS, wBal»ve« itsi degree, iyio f zeose for cHnie. ^ 

\f.}k A. JWtement v«8 ma^^ pre|e«fce of « J^rAr, •)>efi)pe trial, in ffkittOB Ukl 
the homicide. The. Juror salA, <^if th^t weite so." the prisoQer " oarb^ to' 
i)e hung." ^hou called, up dh the panel b^ v^as ft^^ put upon his oo/r 4^«, 
•nd v«a| t^eD by prisoner and strom. Afljl" TefdictUJf gniUj, a tnition 
•A* t^W Ulal wM stf biAitfe j,. bas^ ^npttfi 'affi|avit9 tba^ be had >e»n bVir^" 

Ha«uer*^ab0ire^e^re8f|pii3 JSTe^'tl^ tb«'{«t«c qp!p^%in4 jo^rea». 

^I^llcpiniamon tl^*e shtyt^,.or*^^d2cet a^^st^fae ^H^pBor; thitljbf 

. fl/bsenratioy was ^ard^ oj the os^preesiqn, *' \^$ftat tatrf Jo" kc. an 1 1^ 
•ucli to opinite as Hb 4>t><^^c<i't^H^®/*^f^d) woiiM no dont>t,f are )^d^ 

'BrftoJtbe eVld«i«ed^|hrered wider Q^«b. ,» ■• ^*'-.. • ••' * 

[6.] Where a nnaniinous rerdlot is^^etlitiBd M6 Ql»Mt} imd'eBteMd if|^9atli«(' 
ainul^, the statemei^ of one of the Jhry, after he is discbargtd, thU,h6- 
Imd ilot agreed U^ the yerdict, but 8u£F^ed i^ to 4|b brougltl in because he 
cotild not control the rest of the Jury, mifst be held to oe contradic>ed by 
the rdcord : ffdJj sAao^ that a J^ror cannot be suJI'ered, in this way, t( im- 
^mlbh the Terdi^t 

I « 

Morcfer, in Blewart Supefior C<mK. Tried befipre Jadgt 
OftAWFORD, Oetobef Tens, |8aA. 



cMf^ttpMB, HmAxr 'issie^, less. i4ar 



Mester cuf; tb« ^tate.* 



W^-l ^IBI if. ^Ift I* 



■iMNk . . PilfiMi^c^ nHtde i!(FolJ^ctj6a, it tjBe 4)ii6c« Mr was jMb 
4bi»t -called ia fa de^»>uM|^,{liB l^gbfity qf tli^ qne^iqii. ^ 
• toie, maiii 6^;r^ iompkub jfd of; ysa^ the'reft(^l ot ihi Court 



• • • . • ■• • 




m^jhs^ «ci^ ;i^lh ^»]^ T yf o »i dd a/t»-vote ap W^g* j^Alt 



'«$ ^^|Bk .•(her..' Wl|^ hMri«-««f{fli»ee iMibiM 'hi^i-l^i 
Vqky J^V rip yMl lfefc .y H .t^^iwtj bit {leiliftg sudi'ft Aiil, 
ha^^raed vcboni ta see.. He- m# .'MerQ«r antt %6e ', Lee wt* 

^ liis/iwft:ii%re tiOb (io^rtfd iri^'Uot^, and kky>A Wx^dfrj^ 

ftM flK>m ]»otbi > Wit9K)w^ppe{[ ^p.^o' tts fi(de,'*8awi(hiv sMk 

l^Xni^ tt^d ^^^ in 4& pocket: ' ^, !(f[ero«r,*fbl}q,^<l%M 

* va^$$: door% Mi^ vi^ea| MMWcd Mercer. .Witnoss^BaV |k<» 

ti^ &ft(tlM[to(ii^lrir ^ted ii«^ m^ tut fie n^tttay Ane 
«tf kl* ffti^ie8<a&''|i«»' utd MinMr iK<are \ifA yefii Mr. iMt 
Ben tMlthol^ <f^:Mato|r<»^ a flibt''M^led>gi^ «irt^ 

W UM Lee, Jfeeeer said, dK yet (M*aie do h? IHMMI 
1^ k«B tiUt he; d^^ see lum ttt ^' the lick <»• li«ls irpA 



'^ ■mj>pm^'^(s(mx isfi 0m»mk. 



t * j ' ' « ■ ■ ' t p* » * ■ '* ' ^ " * ' t . ^ ■ .*■■>■■« 



* JEk^i't the Ste^ '* 



4u»re,a^^AujU ft, . Old omd L««tfr^ Vd 'hto i||fU)y caMtt 
Vf about ihw^itaeikndtvftaaaB'^Mk K^^i; il{r|A 'I'^*^^?^^'^ 

hf-pitm^ti ^ Meroen «nd^^: &«« sfticLlM^A^ t^Wjeite 
«Mre tlfliim, fluids ;^|>Mined^n^ebs^>(%^^<^^ 

•f^K |k .tiupfiMi^^M* lie, -Wi got ..» e^'^^'o^B^/Md^iiiMir. 

{piggMt9d>(t> jb»Te>i8 h;iM$ tt^doimi' 'Anjtl^ t(t^\fei|^»> 

ifefte « ehM« Miift after .cMsl^ %hfi^ ^tTai'aNstoiH^^turiuii^ m 
UlA'BaW' Lee Mij& I^e«e^,*',irnn. ha'tomed acDOigl' Vo 4«pk)*1dAii$p 

Jl^^^dN Ottlgrtlie f^^j^os «b9r4i^nUoB4Q''^ere 
MiM, l^ft {t» imlpess JtWliitS; fte" ^ it \^^ ^'p4re)i« '1 

e L<ie hi^ AtUw 4pim; utA-i^ irlM^itt^ WM 
f«l«r(liie l«{tjaii^«M«i»MdbfcT^ws8.1Mo«»i|>«i^' egM^ 




GxattmBtffiwiw.vtit, nKi. 



'•HfWr^.ThiSwi-' 



jCwinti d)ft%k]>U ftad B^l^fiiD; .Wo.'othen vera 
0>^.jli!ft:Bi)fe, Mtn tf d nlher fa(r(k|d*>^e bajkj «c>^ WW 
■ MHj >-h»:ikt yi^*Mi t^ fle^r.of. -the b^st." V^Ui^et 
tfalplitftli»<Qii*-«.tk«i«^fb iMkeBida ^m^d (o.iie*chtIu 
h y fc II » ' •a^^rt Boay ^B|fh», 'cnt b}g,K{eit;^he-woiiA&.iiQi% 
llm 'fcfl jti^«)iviiifli^ticto w&B nWl^ ab itn^ qr tf(9jjeep ; jf 

-4^7,^^„.aM)flS;«»satD«il foi ti«B ^t' 

]«<>iJ'iai<qif>^>lini;iii^.Ui|«'4>'tell 

«l*M4(>«.^<I^Ua)|iuiM*C' 'WiiitF^ 
ltt|lM^«ti«4lA- <UW!M i^t^ * 

|P|dajl<l/iM<^MIil<,llw. Ilt!^; 
jKk^:Wf #iv4W^iiiit,;(|^Vii »' tti 
yni i » ' ^ ;'. i ii| fanw <i»iii«l;,W.'l»t<l'» SimpAis^' tick<i. 

lWtt l 'i i l l ^MW|tfT -Tftdjj|»WdaqnW rvsCKl-n^/hl^M^'^nip, 
a^foB ^ J^wr^i^ «iw l^iiBiiig IfiiD up t« -ttae^ama th« 
l l P t^ y-yiakplBoc tH» 4«'*>^ ang'prigoner, 'JFrigbidi^ 
ii«f ■vAthni.AttftF deceased k»d ~ia)tm^ higj doirs; nor. difl d&- 
f^nAMotlr-J^^ ^a^ < 'BeeeaaedlJtH Xapiiile ii>.<ke 
ti»»Vlilli)(',|iiMi<ii^,lW»iteited abwfag ife^M. Wr^ 

< fct <l <»«< iu)tjuia'j4^l<>«i Trri#^ «(<>' eltv ,tlle.pain 
M|'b.<la'ijMJl ^.'Ki^ ;•* tke jS«kt«£tee« deeeani 

*ffiMt!> • 'HttLWMtlB'^eaia^ib'strmtiitgtf.'lluiM.tiiilul 
MJjil'Wityl iKi*«<6^rVDiitf-it>aV' a tilaijr; Ti^fau baafgi 

«|igB&y«N;f)fr#,.ii>a ijtK'deaewd: kuxM #i#» 

l #t ft p iM»..li>»Jt<H»lil<i»l(igt toakiiafa- ''jrilllAiila* 
t4|#aN;-a<M) diiiiMim^nd ft^er. •Cl,««l|enw>'jagatliar 
■»i fc iiiaa yiliM«>-.WWll;i% *«!W-%<M^ Wlfenttdaw' 
*VI»IMrtWC#Wilet,v<f fKuli oi«^a.drr the Mist 'tjll 
ttt)t,V<l r ai M l r <Hl4i» l i HI* l' i |ttlt. }Nio«Hr«d'ii«i 




8^e or beafir x^t Aece^^i ^JP&* u> W '^^ w^i)^ 
<{r nS|;I]i|t. Witojeaa-^d dQ(^a9ed k|id^ m diffi<!al^ :i^tj^ Soli 
other cm {bat day or aigkt. «)VitAe86 i^.«^!littlf , fetig^ oi^tiw 
fore, pflot pf t^t day. . ^(q;i|^ djA doi^idR^^ any ^ tb»* €ij^ 
nbg, ^iceprdiK W, jritneas's l^^fltgrac^oUe^W ^Mptlf<|]{Kl|Mfl^ 
Witnj^^d npt ddnli .%Qy.«ft^. ttoroct ^t^p^b ^^tiifttdUJi^ 
^ituods wa^ notdruj^S^t 6A)9L9eto£t^^ day^ . ' ^WjCm^W y% 
afUr ^qn^«(& li4^o}(t*|[v .S;nMa/vX*lii0 .fa|M9 ^titt;^!^ ale^NB 
^pUed'*ixpv at^$. ,gw^' he ji^vA^. .tla^e.Ifid topgor v({fl^, "^ Af* 

ahottt Jus *wiktiJng ^J^bouf 'in j^ pigd ^tkjiik fi^?^' ]|»1bd^q^ 
aCt^.aiJjflet of "tfcat. dajf » 0r8i!lg^ a*(^ . ^W9«* ^^j^tf^M** 
liie ttn» oT V ?aUiiiSk %^*a{<«tf fff^ JtiW 
ifijKstf^^e.kUfijjg toot #v^/ '^^t^!^- ^^^W' 
}ie thto liVed at \jk Jt^^ij^^g^li^^ ' WJ^$#^ x^. 

TIf itne^ Vas Wa at ia/sk Oo^ aft & ^te)|jM(t I 

efiaa^ then iir^ iirhef^ lif jpw Vvi^^. *, ^itft^ <^iP'jlf'l^^|l 

whar? 4qto(<^% tfcW]ftt*,>ap Jhxtt^i^,o)h,tli#^^ 
Ifitdpgs (1^ iibfe entar ipjp .ispy,]^^^*^^ i^hOp^s^^ |MM|» 

httje WDtil Jaat C<Wt. .;,»; ' l- • • /c ..^V* •''•* 

.^l^iies ]^ J^pl|ij^,,i|Wor? 'ifl^ 
Oa tbe 12* dajn of BoVem^y:t853,*»^^B|itt»>I< 

.^esl^rt th^nig&i <)(. thal^Ji^i^ 
__ .._ ^ , . tbwii, btft dtiep^BOt iceooQjBi^f Igjr .£^,.1|^:Al 
^iee'ofta.l^a^tffi^ 

hiljld atid a.dotAio I>meftti^4ii%ii^or. . %^ 

^yifl^»t4 IIP,; Fl8<W^^ 

l^had ka^jl dej^«vt> w4%pilH«^0^ C9 

pritow^tro,tafifc;.l(^,the^^^ .,._ 

1^a«id.|riiM|rh4«to^ 







f'# , . 1 1. ■■■,■■■. . . ■ t t , i ■ ■ ■■ 



\* • WAffer », Thfe etalft. . ' 

■ * 1 . 'f •^ H^ fc ■'! ' M l 1 i , ■ ■ . . ■ ■ 11 I, I ^ 1 1 ■ ,1 i ■ * , 

<0>W| Bypte-y^py lifr^ iC|^dJAu<f ber hVd done ndAiing ^ooV^ ^& 
hom^ied ^'^iSt^fiki ^d dot tai^p jf they lui&g'Uin or ^ what 
^'li«^^fpltli[^ tlitfs ^e ^ m^ wi(r 

9y^ ^9>V^ W ^ i^^^ a. tender gQ)&|B6Cd i^hich 
Wypll|lj>;^W»1|e, if^easi ff I^lrald ont|tbe rqv^ and let'em 

iiij|^% •Vttta^/BB^ijfs» gi^lcBBg piiiMg[ier,*or ftcttitg lUi a g!ii&rdj 
all AjjiiyttI j^Hfo^et wer«4*l&m iha ten Spnar gol,(l^iieee ta cut^ 
^^i^'jui^i^ )pm |fet aw«y. •Vitt^oai'VHkt. to Bnisbk^wn'* 
}ii4^6iirl<y*|i|ftl^tiia*d|fc7» «Witd€08 left ^ go boiSB *{JtKmt 
a9|kr«ii.)iW'itfi«|> Bi|^ and had goto iK)nie,8ixty yards, 
ii$m *li0«helra«^e n^nse > aVuded^to above.* Witness saw Mr. 
€hA«i|B/ ta^fM«Mr. Saia'l Hfrxfht there onTtiiatday dnu^, 
b4l^A:ftlsrfiody ^th^resd^onk th^ ct^y-k Peopased kno^fi^ 
SMl'Mi^ as wHnNs heard Dthertf 

M^;.t>^£^ liil^e^lefth iSr* Eingand ]At» Ct^enb y^e not 
d^Nfoie aftiii^ id^l^t^-'fiDr . Was wilaieb *drtu4[-t-if^'^the(e was any 
nllidii ■Aj^l^^eey^ i^fer'fa^lt^tiiat diet not'dnn^iwitfame; wif- 
4k|pM« Mrj^l^i^ • J^taess t)KK#K 4 >we»e. s^Uig 4<( 
lili^l^'^^fett^^ Tetum^«ee ify. 

|M|;B»Jt( M^^i i ^V j y i A^itntipSLTOS not Jkresent if hen priaouer 
il»iMr>^i)|^H^.' l^^'J^vigaod Cffet^^assfeted'to 
t aj««».^ „.^ ^- Jii^ /Mt.JRhig, Cfcm«»iBfttt%tt«' an* 



!irr«l%:I(|1pS,£]Ki6fl7«when Oak 'lee remarked, jpasoner 

ifk^Nl'^'^'l^^i*^ ^ ^^^^^ of .ti|e donnter, aa n^r aa 

4Mtt'4^: J^e f^aijl.^^^ prisoner had \ittetf' 

'**•"' ^ f jpjJ80n^'*iJJM«^ fod,he.^*ffl# 

t^sA/ jLt^'fiiihe^tbe rehiatk.'^as iQiid^,; 

Jietaipi/|n «£q hlik pl^of ^ hoQsey^an^ 

MMtta^^ ^ ^r j by (he pri»ta^; 

^|[9^mM^ <s^ th^rope ami let 



4i^^»f>A 



t a uas ' a^ ^i^j^iS 




,,'-^t 



Recollect tft ^fi<M^ ^'firoC mciDticMr- tk64^ 

was Bome- time hfiht i^:)ioBer wm^^»^ ^ |aiL lMfr9i||JfB hmi^ 

/^aoja^.' ijfJ^i Lee tbe/i'^ad iAtnel»^)il9|KpQ]j^ tta 
'eoUhfit T^ther,it^.^faa*i^A J^ee^S^^ p)^v4^^^^^^BfK«»v '^ 

^Q^- ike time iiiiattss mki& ike ;:d(2mti[i{Hii]iitei^vao^>||^ 

'ed'dohfe, e$k^l; tp. t^'year, ahU W hfif h »|fVd(^itC(itM|bi|Q()l^ 
di(rk.tW/all»^ and yas l^e^ anHVie ^ttllb ^^ ^a'iJujiMAf^^* '/> 
«. It was^some^^oe afUr p[ri89iii^reas)9i6 ujt fa^^ im9^i|)ipurt^|a 
jml, tiat ^{Sal^dd'Vade to Col; I^& t^^^^ 
jntdoner o^^ffr^f ^itpees u ieit,i<iOilr goU^ f^ J^^^^^anlifb 

d<^|ie not&^gi iivof£^«t)iaA KeV^l^i^do/i 

miflVofiSbAiluft^ fW :i(Hf% bi^4 jllfl^l 

*teaiSff ^t tite . c<;(b*iQUi<^t' trjkl ^ ^vii^^^^ 

ta^^ W/^i^g, Wrned: <jff 49d ^V|^ 








COIitJiiBirS, JANUARY TERM, 1866. ISS 

Kercer vt. The State. 

BtepB out* in tHe yard and prisoner was standing, with a double- 
btrrelled gun in bis hand, in the piazza; and Wiley Kibg said 
to prisoner, you have killed that man and I am going to take 
you, and to6k hold of prisoner and the gun at the same time; 
and after holding awhile King ss^id, prisoner you had as well 
Stand still, for I have g'ot you. ^hen King said prisoner took 
something out of his pocket and tossed it off; King pointed to 
where the prisoner threw the knife or whatever it was, an^ 
Mr. Elias Taylor and tfohn Mercer, prisoner's *8on,* went to 
hunt the knife or whatever it was, <ind John Mercer, found a knife 
— a 'white handle, double-bladed knife, and should take it t« 
be worth fifty cents. . The knife was bloody when it was picked 
up ; it had f resfi blood on it. When John Mercer carried some 
elothoB home froib this place, he stopped at my grocery ; I De- 
E^Tod the clothes to be those the prisoner had on when he 
killed dec'd ; I examined the left pocket first, and found no blood 
in it ; I then examined thie right pockef, in whict had ap|>arent^ 
been a bloody knife ; there was right smart of blood on tkese 
dotiies. When witness •noticed prisoner his right hand and his 
&ce was bloody all over; there was right smart of blood spik , 
OB theifioor of the house ; there was right smart of blood also on 
the aground where deceased fell; deceased did not move hand 
nor foot, as witness could see, after he fell. The puddle of # 
Uood inside the house was some 8 br 4 feet from the door! 
Witness should take- prisoner to have been sober tha^day, as 
prkcHier did iiot take but 'two drinks 'that day that witness saw. 
AH this occurred on the 12th day of last Novembel^ in the ' 
2ftt district of Stewart County. Prisoner frequently visited 
witoess's grocery ; at auy other day when prisoner came to 
witoess^s grocery and was asked to drink, prisoner was always 
readj tb take some with them ; but on that day he refused 
over and over again. Witness does not think that prisoner had 
the gnn in the house, but does not know. Prisoner £d not 
nrasier that day ; prisoner was in the house at the time of the 
niiigt^ ; prisoner looked like he was perfectly sober when he 
came to the grocery. Witness did not put it down Iha^ anjr 

V#b. XtII-30 



t 



154 StPREfeE cbURT OF GEORGIA. . 

Mercer tv. The State. 

o^e asked prisoner to drihk that day, arfd therefbre hh cannot 
wy. Prisoner was particularly palled on, by name, by mon 
than one, to drink, and. refused. W. King drank some that 
day; witnc^ did not see him refuse that day; witness law 
King, after this happened, drink ; witness does not think he 
saw Mr. King drink any rig^t before the fracas commenoed ; 
witness drank some that day ; does not know that any one asked 
hii&'to drink with them that' day, and does not know that he 
refused to drink with any one. Mr.dE^g was not so drunk 
that he 'did not know whatjie was about; witness was not 
drunk but had been drinking ; did-not consider Mr. Kin^ drank 
at any time that day, but had been drinking ; thinks Mr. King 
slacked off drinking before tdght ; does not recollect any thing 
of Mr. King'^ cursing and swearing in witness's piazza, between 
sunset and dark. Witness slept, that night, on a sheep-skin In 
the grocery; went to sleep that night about 12 o'clock, before 
Off after^, thinks' King was awake when witness went to bed; 
witness did not get* up that night till morning, when he got aup 
for good th*a.t day. • (Question asked witness.) Did you not 
tell Thomas ' Childers, at Henry Harrison's on next morning 
after the killing, that you wdre so drunk you did not know any 
thing abou^ the case ? Witness answers — ^He'did not. (Qoee- 
^tion.) Did you, at Bumbletown, a day or two after the trans- 
dcflon, have a conversation with Green D. Sims, in i^rhich yo« 
said that you were so drunk that you knew nothing About the 
case? Witness answers-^He* did not. Prisoner's' general 
'cliaract^ as a peaceable man, so far as I know was good; he 
w^s always peaceable about me, until' that day. Witness Ihfl 
been* acquainted with {Prisoner for ten or fiftenen years. Dec'd, 
when drunk, was an insulting, turbulent and overbearing man. 
Witness thinks Mr. King might have had more liquor in him in 
the evening than at 12 o'clock, and not have shown it. 

Fra&klin A. Cartlidge, 4th witness on the part of the States 
sworn, says : Witness was at Bumbletown, in this county, on 
tlie day that Qreen B. Lee was killed ; it was dusk when wit- 
ness left there ; thatday, after they got throngb mustering^, 
deceased ju!nped up into the piazza and said, all you good 



COLUMBUS, JAmjARY TERM, 1855. 155 

ller«er m . Th« State. 
• -^ T— : . ■ . 

UnuHi Scott Wbigs come up and take something to drink on 
my expenses ; and prisoner said—- did you hear that ? and r^ 
peated it twice ; and some one spoke and said — ^ye's, bat I 
wolld not care for it* Prisoner then threw himself back and 
nm both hands into his pocket, and drew hisfknite so that wit- 
Bess could see half the handle, bat did not pull it clear out^ 
and gritted his teeth and said, mankind, I will make* him 
goffer for them yeiy words ; I will take satisfaction out of his 
body before I leave this place, or before we'll leave thi9 
pikce, one or the other. 

Examined on the part of the defence : fitness left Charles 
Matthis on the moiAung of the killing, and got to Bumbletown 
between 12 o'clock and sun-up, but does nbt recollect the ex- 
act time ; as near as he can recollect, it was between 8 a^d 10 
o'clock ; when witness got to Bumbletown muster had nof com- 
menced when witness got there : Cha8.*L: Matthis went with 
witneSB that day ; Green B. Lee commanded the muster that 
day ; the muster to<% place facing^lhe piazza, between it and 
jhe road ; it is about one hundred yards froi^ the piazza,to*the 
io#d« Witness returned to Stewart County in July or August, 
1858 ; left Bumbletown about deep dusk, nearly dark, oi^ the 
day oT the muster ; did not see Mr. King a'fter sun-down* and^ 
the last time witness*recollects him was about J or ^ hpur be- ^ 
for^ son-down. Witness cannpt say, at that time, that K^g ^ 
was drank, though he had been drinking ; nor cannot say that 
lie was half drunk,* thbugH Mr. King was mad ; there had been 
a little fuss there that day^ between Crawford andS'ussell ; 
Bfr. K^g and deceasM^had no difficulty that'day that witress 
knows of; witness was not in the grocery after sunset. .Froifl 
about sunset until I, -witness, left, witness,. as will«s he can ' 
recollect, was in the yard ; witness did not see Eipg have out 
bis knife about half hour before .sun- down. , €h*een Lee ^vfas 
not drunk, but had been drinking, and was In liqucRr ; dt was 
in the evening, after 12 o'clock, that the mualer broke up. 
Witness cannot ^ay that it was 2, or 8, or 5 o'clock ; it was 
anrhSe after the muster broke up, that decea^e^ junf^ed up in- 
40 ih^ piazzir and asked»all the Union Scdtt Whigs 16 come ujp 



156 SUPREME COURT OF GEOBGIA. 



Mercer vs. The State. 



and, take some liquor; witness cannot 8^.7 wh^her it was half 
%n hour, 2 hours or 3 hours ; it was late in the evening ; wit- 
ness cannot state who was standing I'ound prisoner at the time 
he made the thre&ts against deceased, as jie knew pre'cious fcw 
men there ; theri^ were some three or four, and may be more, 

but I do not know the men but one. and that was Mr. Lee, the 

• 

old gentleman. Witness tdd Charles L. Matthis, as witness 

and Matthis went home, that he heard prisoner make the 
threatci spoken of before against deceafed, and Matthip was the 
first one witness Mentioned it to*; the reason witness did not 
tell Col. Lee of it, h^ was afraid he would have to be a witness. 
The knife which priloner drew so witness Baw the handle, was 
a«white handle knife — kind of a round handle knife; witness 
thinks that that was the first day he h&d been to Bumbletown* 
Jacol^ Mercer, the prisoner, is the person witness heard make 
the threats spoken o£ * * • 

Mrs. Mary Ellis. Witness* yrent 'to Bumbletown, ia* this 
county, on the night €lreen«B. Lee was killed, in company with 
Mrsw Mereer, wife of prisoner, and her childr A ; witness had 
heard "deceased was killed — ^this was the cause of her goitig; 
witness heard pris<9ner say he did kill Green Q. L^e, and wopld 
do itkif it was to do again ; witness was some three steptf from 
^he prisoner at the tkne of his saying so^ witness thinks^ of 
^ lat% yeStrs; prisoner, when drinking, was cross and contrary in 
* * hi j family, and lay off a good deal ; witness identifies the pris* 
oner at the bar as the •ne who made* the us^rtion that' he did 
kill the ^ceased, &c. and examined for the defence. It was 
some 9 or 10 o'clock when witness heatd pris&ner make the re- 
mark, a^ she thinks ; prisoner was in the piazza of the grocery 
• at the time ;. there were a good many in the piazza at Ae 
time ; Acre were men around prisoner at ^he time, closer to 
hm than witness was ; witness thinks it was Eaton Jackson 
wafi talkthg ito pnsoper at the time ; if so, * is not mistaken ; 
witness expeclsHhere were a good deal more than a half dozen 
in the piazza at Uie4ime this remark was made. WitiMflS 
staid all nightot Col. Lee's the night before she came up to town 
to bd'sworp as a witness at the commitment tfial qf {prisoner) ahe 



COLUlfBUS, JANITABT TBBM, 1855. 157 

Morcer m . The Bute. 

iad been subpoened as a witness a day or two before that, and 
bad been sent for by Mrs. Lee to come there and stay all night. 
Heniy Hanison was in the piaxia at the time prisoner made 
tM remark, that he had killed deceased. Prisoner, at the iime 
he made <he remark, spoke in a common tone of voice. Wit* 
ness'does not recollect that shtf told any one of * this statement 
of prisoner, except Mary Crompton, nntil she was sworn here 
on the coramitmpnt trial. Prisoner did not bear the name of* 
a very quietvman in th^ neighborhood. 

Samuel Wright, 6th witneft on the part of the State^ swom^ 
says: Witness was at Bumbletown, in the 21st dist. in this 
coonty^ the morning aft^ the killing of Oreen B. Lee. On 
that morning, witness asked prisoner how he felt ; prisoner an- 
swered be .would feel better if he had some coffee. Witness 
then ssked prisoner how he felt abonbthe scrimage or fracas 
of the over-night, or what he had done, his answer was, '^ Sam 
I have done nothing more thsti I expected I would do four 
years ago. Prisoner at the bar was the man witness Vas talk- 
ing to. Prisoner was in Ae piazza of Glim Clements' store at 
the time^— the remains of Oreen B. Lee were in the piasia at 
that time. Witness did not Examine, but saw the wounds on 
the body of deceased on Sunday lyght Deceased had six 
wouncb on his body, two on the neck, one in the edge of the 
hair, one wound was under the ear, across the neck, wide 
enough to<have laid witness's finger in it, an inch and a half 
long — it looked like it diight have been an inch deep ; the oi^- 
^ wound was under the first, near the collar bone, and looked 
like the kniff went straight in and out. There were two 
woands*on the left side, which witness thinks entered the hol- 
low, tb^ other wound was near the left nipffle. From witness's 
examination and the appearance of the wounds on the body of 
Qnen B. Led, witness thinks he must have come to his deadi 
from them. ' The upper wound* on the neck looked like it went 
immediately across the large vein in the neck. Witness has 
^own prisoner some 12 or 14 years ; during all that time 
prisoner has been a peaceable and" quiet man, so far as witness 
knows; part of this time witness lived in the yard and in the 



ISS SUPBBSIB COURT OF aSOB(}IA. 

Meroer m. The State. 



edge of the yard of prisoner. '^'ITitness was widi prisoner fire- 
qnentlj when sober and when drank ; so far as*witness knows^ 
prisoner wns particularly friendly to Green B. Lee; th^ de> 
oeas^d; witness has known deooased some 12 or 14 yeaii; 
witness would count deceased, idien in liquor, to be ^n insult-, 
ing, turbulent and overbearing ban, and did not seeo^ to care 
who he insulted. Witness was at Bumbletown the evening of 
the killing ; witness did not know what occur];ed the night of 
the killing. Witness was drunk and don't recollect 'any thing 
tkh&it it» Witness does not reSolleet any thing of being 
knocked down and stamped that day ; witness drank some be- 
fore the muster, but was not, at th^ time, drunk. Witness 
recollects all very well during the muster; witness cannot tell 
my thing about w&ether Wiley King and Olem Clements were 
dronk or npt. Mr. Mercer, the prisoner, clustered diat day; 
I there were some 8 or 4 persons in the piasia at the time wit- 
ness hbard prisoner ny he had done nesting more than he ex- 
pected to* do four years ago, &c. The prisoner said nothing 
4dlx>ut killing Mr. Leeln those i^marks; does not know that he, 
pcisofter, had mj reference to it; prisonOT said, about )b mdnth 
or two before the killing, when' about to leave my house to 
come to Lumpkin, shook l^ands with me and wife and the chil- 
dren, and stated he was always sorry to leave his friends, for 
ha did not kjiow wfant might happen before he got back. Qaea> 
tion. Did you not swear,, at the commitment trial .of prisoner, 
th^t at the time of the confession of {Prisoner to wititess,' that 
Wb\. McCree was present? Answer: If witness so testified 
ai that trial, witness dpes not; now recollect; wibiess does not 
recollect that Mr. McCree was in the piazsa,.bQt to tiie be^ 
of his recollection he**was on the ground; witness •dote jM>t re- 
member whether he swore^ at the commitment trial, \hat <}. 
D. Bims was present in the piaisa «t the time or hot ; witness 
4Des not recollect that he testified kt the commitment trials as 
to the names of any particular persons being inihe .piaaa at 
the tame of the confession by prisoner to witness; witness sayi^ 
that it seems to him ^t Mr.Terldnawas in the piaaia, and so 
night Mb. Wade have been in th^re. At the t^methat pi«^ 



,0OLUMBPrp, JANUABY V^Oi, 1855. ' 19 

Mercer ««. The Stete. 



oner tnsde diete confessions to witness, witness thinks^ he wae 
sober eiioii^h to recollect; witness kad taken one drink, thstt 
he recolleets, and had drank *so much the over-night, that he 
&k rerj bad at the time that prisoner made these confessions 
to witness ; witnto C9nsidered him a dmnk man, but he might 
have been more sober than he took him to be. Witness had 
bleed on him next morning after the killing — does not know 
how it came there. * ^ 

Be-examtned by the State: From tjhc appearance of the 
woimds on deceased, witness'thinks they were made by a knife ; 
witness saw blood in the honse, in the piazza^ and out of doors, 
and- on the counter too, on the floor and also fome pn a barrel* 
head in the house. The blood which was npdn witness was on^ 
his dionldes and down his breast Witness does not know how 

« 

he got the blood on hinf ; the cojmter was about waist high ; 
witness does not jrecoUect sitting down by prisoner that night; 
wit|ie88 remained on the greunjl the whole of Saturday night; 
witness was in the grocery next morning after the killing, and 
took a drink at the counter. The blood on the counter looked 
firesh^ witness says there was no oth^iracas the ni^t of ih/t 
killing that he knows of, except th^ one between prisoner and 
deciBased ; witness does not know, of his own knowledge, that 
there wa% any fracas between, pi^iBoner and decease^} that night; 
witness saw blood, in splotches, all about otpr* the floor; the 
blood on the counter was sprinkled about on the counter for 2 
€^ 3 feet ; qne puddle tftbout the size of his hand, not mortf than 
2 feet from the end of the oounter; witness had blood on his 
&ee next morning after the killing; the blood on the counter 
waa about 2 feet from the end of Uie counter nearest the door. 
Charlea T. Connelly, 7th witness on the part of the State, 
says: When he. was p^ng by Clem Clements' grocery* on 
Sunday morning after the killing, he saw a man lying in the 
piacsa jof the grocery, in die £j[erth end, diat he suf^KMed to be 
deceased ; ke saw, at the same time, prisoner at the South aid 
of the piaz^ appa^nntly confined; then witness drove wiibia 
25 or 80 yarcb where the dead man. was lying, and walked te- 
narda the end of the pii^zza, where the dead man was lyiBg>. 



leo SUPBEMfr POUET OF GEORGIA. . 

— • u. !,__• , 

Mercer tw. The State. 

and met 'sqaire Johnson just before he got to* the end of th^ 
piazza; after a few words conversation with Mr. Jdiiiflon, we 
walked together to where the dead man was lyings and saw the 
wounds from .which he supposed he had cdme to his deaih. 
Witness walked away from the deceased, and was called twice 
by the prisoner 'to come to him; he « then went to prisoner; as 
he was approaching prisoner, prisoner says, Connelly, I am 
in strings ; witness replied, I seS you are, and I am sorry to see 
it ; witness, upon approaching prisoner shook hands with him; 
witness then asked prisoner,^ Mr. Mercer, how oame you to kill 
Lee, or iidiat caused you to do it ? His reply was, I can't tell 
you now what caused me to do U. I then asked Mr. Mereer if 
they were in a tow or difficulty, that caused him to kill hinf ; 
prisoner replied no, there had'nt a word passed » between us. 
He then went on to reinark^it is doil^ as you see it there, bat 
I cannot tell you now what caused me to da it, but I will ac- 
knowledge the whole truth to tfie Court. Witness sa^ 3 
wounds upon deceased, one just back of the bur of the ear, one 
alH)ut midway his neck, and one just where the neck and collar 
bone joiil. The 2 woipids upon the neck had the appeiynance 
of deep wounds. From tj^e appearance oT those wounds, wit- 
ness would say that deceased came to his^deadi by reason.of 
them. Witness, upon a further ^examination, san^ 3 other 
wounds upon deceased, making in all six. 

Wm. H. prayy. Witqess was jailor of this county at die 
last term of this Court, and has been ever since. Prisoner hits 
been in witnesses custody since then, except a very short time; 
witness allud^ to the time prisoner made his escape from jaiL 
Prisoner, at the time of his escape, was in jail uqder chJEurge of 
killing Green B. Lee. Prisoner was caught and brought back. 
Prisons, with James Hogan and Simeon Lestef*, and tWo ne- 
groes, &t the time of making his escape, was confined in the 
dungeon ; all gat out except Le^tei: ; witness ci^rried prisom^ 
provisions twice a day, from the time of his conmdtme&t to the 
time of his esoape. Witness gaye prisoner, durii^ this ^ne, 
sueh as he had at his own table-*euch as coffee, &c.; witneai 
carried prisoner as good as he had himself ; witness had ooSn^ 



Co mpWm , 9AN^ttT TfBmH, 1865. iA 

•— ^ *-^ '• r— ^f : 

teeai and%Atilit;«B»itiUihi|^ flom: bread, sanx^tim^ corn hretJh 
if ftVl^ flilihbitad ^Nm 1^ it wli!^catried ; if not, irhneps di]l 
not mfit toiMtve any more l^ked;' witnels does *not knoir, hit 
ii^iif hedirried prisiteer^cofl^ levefy dKj until ^icT escape 
ml&ed^ tUnka prisoner broke out ofjail some time in April o^ 
May, ahoxtly after our last Superior *Coulr4; ; witness did^M 
8^ priacmep wfaeh be went oilt of j<il ; wftness* does not Imom 
^hcjther prisoner sought to do witness ahy injury 4)r not in fab 
dfort to get away ; .witness had not been to jail the day pv&h 
<n^r brdke out'silicft morning; kwas tHen abohtiniffht,. at t^e 
tqne prisopeiv^ni omt ofjail ; witness had unlocked tKe jiA ; 
if prlsAl^r o&ei^d to do witness any huk he did .not see or hear 
it; witness thinks tlfat pris^ne?wft6 the cause of witiiesa' goip^ 
into ilh^cLangioo ; ^hen witness went to th^ dunjgeon, a«iegl^ 
^ho irtks confined within, asked witness to take a piece of^mor 
Hey and gH him^sonfb tobacc^); witness ^ying no attention to 
it, die .pris^ner*at the Vkt remarkedttKal the negy> ha4 but a 
abc^Hiifle to'lfv^, and thought 9e ought to have all the luxtbri^ 
he JC<pAi piocifre, wBeredpon he i^nt*into the dui^eon to gel 
tiie money, suppofiug the negroes were chained. 

Ch^en D. Sii&s for defence: mtnees was at Bumbletown oi 
ih0 mondilg aftf r i&e killing of Greene B. Lee. On fh^t dj&y^ 
SfandkyteTening, witness had a couTersa^iion ^ith CDem Clem; 
60(8^ in regard to the difficulty Hf the eTenii^ hefft'e. Qenf- 
Mts t<M*witne^ tlt&t he Vas'dijClnk, Imd ^d not ktibw ai^ 
Afaig*flrbo«t it: IVIien withers went^to^Btudbftto^n abotit^ 4f 
19*o'd<^k on Sunday *morhihg Ais^ner wte tied, ytiifn^ 
tdM^to feme j)risoner pp^dt* cclild n%*; 4Atfess tohsi^l^a 
]iAoaerittiral;tftne4ihuik.* ^ *' } . 

*Cfa«rie6 C'Matdds :* Witness was*^t ihe place cafltd Bdn? 
H^Mm, in* this cptmty, «b% i^}(ftien B:tie was*ki)ie), at 
sif^t ; witneiss Mt thefe b^ween sunsetAitid dhrk ;* about dtttSr 
6km Olements^was, aX witiiess thilAcs^" drunk*^tBe rea£%n yfit* 
Mbfc tfaifi|d CMucSnis waij 1di^flk;%idfc4 &^at the ikj^ %it 
iNirlMTiflg»-caHM t6 9lMttent9 Ifoif soft^liVtor ; ^me£tkifi& 

fkig eAnke«eo«merrfiis ¥ead'^(t)f^' it'UM fM'Ho tfj^^ 



lee SUPREME ecftJitT ot (isc^diiu* 



■*-^ 



Merce^ v. Hie ^tate. ^ 



ifon ft) i£; ^^ttieM hoticed tW piie^filsr'ifitltihg in^ihcf phtm 
late in tllb eTening drii^k ; the lai^ ifitness *ii(fl!W6i '^FSnj 
Xing wlu9 between sunset and dark, or t^bout subdbvm ; at 
^itinte King was d&ai^g* rofbdd^erel witness tfip^bt 
]Papg wa9 ^oing to get injio a figbt ; *Kiifg pasde^ \fy mtness 
lAijJi <)tbers with bib sleeves rolled up, and retoarkedf be ^was go- 
iMg'to eat bis sapp& off iiliat cro^d, d^ coid^ da it ibat nigl^t; 
B^marking that some 2 jears before'he bad been tut Uf p^seee 
HLpre ; witiiess thought King pretty drunk at €hat time. 

•Ejtapiiq^d'by* the State: Witness bad a^ (y^nversiUion.inth 
W. W. Lee in Uie month of .last December apout J^bis.trajisao- 
1)on at vol. Lee's house ; in^tb^t C9nyers%tioQy w^^e^s told W. 
Vf. Le'e that* prispper drank less the daj^ of the kiUjpg than 
ijsiaf ; witness* knows of no difficulty which ^ver oocurrpi b^ 
ii^een prisoner and deceased ; witness ^^ ank somej was no^ 
drunk ; went th^e sf oeriand 6ame ^ay sol)er ; ,bad tak^b a 
drink or ttfo in the coijfse o^'the day; witiuB^.did jibt hear 
jKispner say that he killed deceased ; .dlepi Qlements i^^rett^ 
fTea^ but s^etimes can hea? very we\l, at qtbeV times he can- 
not. , * •** ' \ t ' ' * 

Thomas Cbilder, witnpsa Bwom for the d^ftodan^ sajrs u Wit- 
ness went to BnihbleV>wn 3ome two or three hours b^ eifi^ifa 
Sunday morning, afte^ ;the l^ijlmg of Green B. Lee ; wite^ 
aji^ed for @lem ^em^ts wjtt^ ivkness asfived^ and *wa|8 to^d 
Hd 1^ at lArl ii^rr^n'sj'witnte'w^t o^er there.; ^tjiyaii^ 
iKen^bito tfi^tho^e, and ai the ^^iresider witness found Mi; 
C{(CBent| 'f witmfni^ i^fh^a Mr. .CMe/hents to tell bim^abSut %fi 
nranfer sc^pe; Clduf nts t4ld w^tpeos be coi|14 V^ io it,,te 
lie iPM \stj ifupk. (jl^ Cfeme&t&*d]d teli wiiiieBs 9I Henfy 
^aarj^n'^on ^^oiorfiipg'tfiter Ihct dil^u}ty, thai be, ^tat* 
efit0y \iifs se*<biBd: ^tt^ be kne^r ^etiuil); abM( d^Q oafe. th^ 
#M wat present at Harlvieo'a.ftt th^ tto^ theb#onve|rB%^n.fL> 
kded if ab^ve titqip plMe» #»3^ ^tnem 9afi fllemafi^ Jfm 
9Und9<»Q'| I^MOse bf« twi ];io»8^ C!t^pi|Hit( twaa ii^jkU^oi^ 
l^fti; yita»^ ^<jt fliMiaertg rtfiaiyd'k %mf0tH»i»ti ovl^tm. 
h ih*art tbae*; m Md mb4 ia d«iigili# time l||al ^jttmmffi- 



fno^ Mercfer/ T^tness irtui fktfBninbletown thfe^aj Oi:eeft S? 
L^e iras Mtetl^ at night ; left Blimbfttown hdf an Iroar after 
dift; pHsoner^ at the\ime ^tneiss left, was'dnmkfer tj^an in^ 
Mi Ited e^^r seen hho^fore ;' witness weht btfcl to Bumbl^-* 
town thaft nigtt, add, remained there all night ; liquor was give:!!' 
,prlboBe%thatnl|;htvpriseiief.wa8 a8*drtink, If not drtdkbr, till 
neilfUoriiiiig,' fli^he*wlui the'oVer*nigh^ * ^ 

•Stumiel 8*. Jj^^^n: .TfltneesS^as at BnsfbletoWh the day 
tliifTjiMn B. Lie waskSkd^at^i^t. Witness left beAre^^ 
9901^ tnd dark; witness relarnd€h.ab6at 12 at niff£t ; yfiittief 
Iftee AeMer thanH m^es'trpm BiflSbletown; a*negfo of ixi.' 
L^s cfmt ^ft^r * witness.; witness lenfkined at BiMnbleCs^ 
Ae^briaiieA *fif 4li^ higbt; afker witness Iretun^d^pnsdper .Vral 
diinkiilg hcjaer ddrin^ that night ; witness wp'oKl coiisider ptii- 
o4^ dnbtk tiext tiioming ; Witness did not nofifee CV m Oletki-* 
ettte pirttkiidkvlj^at an^ tii^e that^evening. Wrtndss atid Mb- 
Gee w^ i)(e e(l(oerfi^if h J obnmdtted piA8j>ner*to*ja(l;«aft^ 
Wlkodb retbhied to Bdmbtetdwn tf^t^ni^ after ^ kiffni^/ 
mAe8B*BOtij!^thafprisoilbr'««lot|hetf*wel*e very^bfoodj; wiV^ 
niBS iflentifittf the kfaife presented arf th^ knife produced at t}\e 
oeobnitttemt triAl, o( one*so tnuch like it that witne^ woaBf 
tike it %r fthe same ; wititfiess i^piembbrs it because of ^ 
being a white handle knife and bavin^ peculiar spots 9n, 
iheWafljle ^ th^9 knife Wa^Hbfloody at 'that titne-^tis bleody 
new; witn^to^ saw ppsotiet Irith jn^ttach a knife the eve- 
lAlg'lyefore ideoeasM was KHIed'; wttaess takqb this t^ be 
die aame kMfb pnftoner htid in tte erenin^ of the killirig ; wt{- 
tnyp^^me with prisoner to fiomplan*; ' prisoAier f^ttem^d lb 
;gKI ir#aj fr^m ftem }f^fieik vthiB and JdUk^l^dl's tnlll ; Itf 
tcMloMc^aMii^iABaVfiKMilUs ti«ee; plfcoder gotat* 
t&BtiV tiiie>.4»nA slsi^Of to^enCy ja^ ^tfrom tiftr road; Mr. 
Ifatt^r iol: ^tertook jlrfMnSrt Tdtoaer gtbsp^^ otT'fats hone 
aA#ran M fool; witn^sMlkikB this %ecwr«^ on Suitay eiFe^ 
Bifg afber*(he kiK^; ^prfteibr had been dAAiiigy V«( waiT 
8rfM^*aDkehai««fc;'erMM0BMti^ ihU tter^^pri' 



1^ SITP^BU^ GOURT OF ^IftOWX^ - 

1 -^ 1 r- ; — ; • M , I "l* 

Merp« M. The Siite. 
' 7*r-^ ; '-^^ — I 

ooer ODuM Ibeai witaefe i^nning^ f ri8pii«r*8.1tf2B^ wtfte Mb a< 
tae time; witness jnet prisoner and the cyowd*bri^^ngJii|Pb to 
Itabpkin, between the IX ancl 1^ mile po^ts^ firopi* iemn^ tmA 
?l|{|ie88* caae on with theip. A^ the comAii6nentwc^ ^prisoM^ 
witaess askei j^risener what hb klMed Gi^en B. Le^ for? Pr» 
onev a^fiwered — be did \iot know^ for h^ had oo^hing ag^M( 

p. ^ C. Thornton, # wi(bnjeS8 for defendantyVSWCNni^ s^jti: 
Witnefts was at Bomtiletownthe (jfagrof tbeimiBter, th^ d aj ^ ha . 
dftiiCiiltY oociucred) ^t night 'y^ witness^l^ft th^ htlf ior aa heir 
Inr finift, In tBe orenfaig; witness's, in^prc^irfoni 4^ thr tiine VIm^ 
ti^piisoD^i at the time witliesa Kftj was dnmk ;. witne(M#n|ps 
pijnitet and ^itbihe prisbniA^at the'thtfe deceiMied-invit^^ tj^ 
l][ai(/ti'Sco%); Wliigstii^* to Tdrii^;. witness uid^pi^soMf w#q 
8|b]S)iding w/sit^ins tbseth^i M the time/ in * tdkiQg* <K8iMB^« 
whea dbc^ased gave m tbeiinyitatioif nwBntioo^ ; «pr&o&^ . r^ 
m^^ to*?^tnee8,*i^ Db yo^Q hear, thjat?'^*or ean •j^ db^ 
that; anfl asked witness to ff> iii'and diOl out sftmeJ^tmofvalfb 
Kquo]^ ; 'IHtifes^ totd kim ncH-andhrltne^ tj^^ks jyrisciMr 
marnd; if T^tnelQ aid*iioli dS it^ Ae, prisdner, wcold; pnm 
MadBo^tei^t. la,lg«age<Jr.m.i.*yith«»t.,Vm mteMTl^ 
pfeslnce, a^inst the deceicsed ; witness thinks; prjsener'aad 
i^^ess rcdtaiped" together some ten prt^kedn nnnntes, aft tbM 

time. •.**•• * •* 

•ilenrj Harrison. ^Witnees lives SQme two hi&dred and fifigr 
ox thr^ hoDclred ^nrJs &oA Bmnbleto^ ;• wasat Bmy^MMte 
tt^ ni^t aft^r the killing— the noise- oT^the peoplp iimX t^ 
lAain^ at *B«mb)etoifA and sereadis *o£ Mts. Leei ' was -hImIi 
ciMed witnoss back to B4imbIdtown thai aig&t; <idlftlMN»<fftia 
0{ee& 9* l^^ lying ^f^f .{^soa^r was in ibe jmr^ staacKi^ 
nnf andintqe8s.Amrf[*W. Ifiiog gi^iOi^ff pHisomr ; ;iMtee«., 
d>d n^ thidk Ttaey King dmk^\tI4v^wi%i nul^^y, 
a.b|4f or three-qiyurtor^of. an benr4kf(er*<]ie kiUibg^ 
cwversed wifii W^^^T King aitfd.«iotlbed ym partiMhi)^^ 
wili[ie88d^notlook'(in*him^ adAmbte aan; ililiiMi»8ft# 
ip/l tattled 89BI0 few word^wilh ||piiOner itift niffel ; 4&tnMi- 
dUI i¥>t|oak to,yris»ny i m| rf) e iim ^ H < i y d^tek^ 'ibai^ 4#»' 



jjoK^kspt^ lanyt^ ^mb. iw 



^S^nagt^riM 8%^* 



aM|i|Acir; vxtii6is«MW fqd tdWl some ]i|^fk pryfAer tnezt 
normng ; witnesB- thought him aboa^ijie ^}«d# as the x4ght he* 
Uf an i nd idjiofctrflgMrd \um as, beb^ arei^ dnink, hat in* Jiqi^r 
some ; wkn^ss ^itoi^t, from the conrehukt^on he hadi{^ priek 
ooor^ Jlittt piisoa^had his ^rdhiarj fSMoltiea of metnoQr and 
rfifl^;. mitaee^tbqjaght prupner tajhed like Jie knefr'^at he 
i^f 49^ » icitnMi h^ kii^iriif pciaoMt *0<&De t|r««lQFr,]rea]>— 
hnew ^i9 3reU{'iatpQ8sfhii^*.]^wii 8omilt|lle.of pneoner^a 
jjmrral^ >ohteafttor; w^f drii()QDgy >of Ii^ yetfrs^fik)^ lifi* 
Mfa^a knowledge of pi^oQbr^ wkp^ jthidto p^paonc)^ ^i^ 
litde indined to be a daagereps man yi^en in ]^or. Witnefli 
«8^ thai far Hhe last ffur jeafes jfti^ner hajf lyift the eharaeter 
0^4^19^ a WBjj/fTtoxjf ftian irKeifia. liqiior,- When i^tm9eB*]fik 
Swal^^toicn i^^etidmt^^li^ '^^ iiitnee«*Too&j^^ C^em 
Ca^lM&ts a&hfiiqg pretljf ^ a^H^^iiTliqfivnv^tde^ drapk 
Vitaea%tftUie4^^«()lemeiftfl;'l^.eeeihei be totenUe ¥»- 
tbnal) talked as though he Jui,ew something, of mat 1fiWgoi% 

After the Court had chargi^ ihfiJ^fJ ttsd they weie Mfoi^ 
» retiring, Connsel .for pri80i|er asked th^r Court to change the 
Ian M to confessions ; wher^poi^ the* Cour^ i|«tr49ted thtak 
thiit eoQfesftonswere^I^rmiltddilPyfthetOonrt, to^o^b^i^re the 
J||3r«aa fAjTptW efidenfeei« aM,&lthoQ^ the Court nl%ht bX^ 
h^fimm ti>«o. |»4bQ «Aip|r».j^«lh^. phimld w«^; th|^ m 
t||fjldl|jl other t^imojo^; aadfth^.^ule of law wa^ tifd tOKy"* 
€ g i < r i yinw foade^ujlklerjdke "^in^a^i^of hope or fiter, wiaVto. 
exN^na^i4fi(prer, al^Jliey j^oqld^dWegard; ll fpttrely ; . hf<k 
if^|lpVl£aiid.briie^tkai tliN9»j)Woner i^ady.conf eesiqai w<4» . 
out a^«8iyh ialaenoe operating upoji him, and^ H^ sa fre^ 
and Tabrtt«%^ jW ef 

evidence against him ;" and to which pitaiisel^M^theMidiidatft 
dad Boi then, but now excepts. 

3|he erase being closed, the Jur7*»taAeckUirMbwh%f«»- 
diH^tCHliil^ Wa, ^Jhrj^ «^ UNk ptieeiier, J«ooh IMK 

^HQheliewonftfie daOBdan*^ % tit SiuafMi, Btvad JlUr^^ mM^ 



! ■ I 



19$ t^in^MB ■-0(M»»<i9? ommsm 

Uv^fT M.iTbe *3||M«^ 

deiM^e^bniitted ia*t]\d e$ef. * , . • t 

^. That .the fipdin^.of ^d jWy inu x>oi^rai7 to tkdohMge* 

M, ^hat thei^fiading of the Jlu^ la^^oiitrarjtl^ Aq lifw; 
' 4tb^ Th|t one of die Jorf whp fiat j^poQ and!Cri^Baid jsaCie, 
te-9vit.: I^chiir^ F: 9o9<^wi^k^ 4i^ /onx^d and. espr^pied an 
opinion as to tbe^guiU of Maid;McfiiH,iii^ i|nd ^uad «ai^ .pire* 
7^6)08 tQ libe trki or^id* (UM^, ihit sai^ d(e!^ndimt' ou^%^ aad* 
WfmTd \ifi h^tij^i M Vill fidljf^^ppear'l^jcTefefenoo to th^ affifla- 
vito hereto ani^eiyd. « . • .* • * 

*Stb4 JHiat^tUfcfa^d'il^v ]^(M^ri<^y ^ne^f the Jiurorsf ma w$ * 
w3l|^4o<8{4d rerdibt, f>mt eaps^ted'jto^f l^paQBe. ihe majoi^ 
i^^vM ^sti^st him, and h^'b^u^ c|p»i^(MiIng4rJQi th^^Ut«&fr 
a«i]||kjority*oi tti^ Jwtfy bOTjrjiyiitiit^Bim, an^ that.^e^ <P^ 
tioBs prqiymnded to the Tpior^ ^Ai ]^^*i^n Qi'eir tHm'^dir^* 
w$9i con|qnay tQ law., • «■ * * • * 

The following affidavits ^ere introdn<}ed in support of said 
njptityifor'anewM^, tc^ti:* • • ^ * ' 



. « 



Before jnp pjets6nallyu;an(b*^l^ishi^ Woed^rd, who beitfg dnlj^ 
sworh^ ddpo^eth'and salth. on/tftkh |hai sotii^ tkne biboi^ abo||t 
a v^tkf^ 9r«t^ ftgOy W.wa8tih»the g^tf^ 8^ pMKcfbia^]^' 
Boiiytwitl^; t^t said Bostwk^ ind 80ia<»^ om^ penKm%*^vdE» 
td90Dg abonlthe cireiuncfttvieesQf 4ie miMeiipf^Gt^n^iSse 
b]F- Jt^eqjb Me^eif ; th^t ^said jl)es|viok rM^lied '(alj\|fing io tti 
QMFf vtasttt^i^ of tfte murder* atf then i9tkted)^'^ii/<i sAid K«r0db 
01^ to be ^<|U)g. !&. WOOI^ABJP. 

ifiwmi to ^Mk'Bnfa^criM b^ftice me^tUi £lol«2«lkf lS64y' 

j|tiBfoifie me perseosrii^. <M^p ^nmei' Jbnes^ wfao b^ia^ iukf* 
sworn, dqposeth anchsaith oh oath, that a|Uf the impiiniifiliftjg • 
oMi0 J«i7^im4lba g^e ^ Vb i|p^.«s«;Ja6eV*lR«i^1)hMt^ 
menlioned to BorpsH ». Hifi|ii, m% ^ Mitf ffclii 4jtiii> 




■ w I ' ■ ■ ■ ■■ ■ > 






dsjs, th^ be had ^delisted aVM Jurtr yi Ae pen^ of 9ie|aid 
F. *B«0twick, f^r thai he Uoii|fat «i^ Bo6tv^*w()idc[ hmk 
^fllBti a Terdi4M]f «^lgr ; tbfX iiiii Ha|i^^ i^pUed'^^at^^he, 
BotftWiek, w^pld haqg him/ for he Jiad l^eord hhlk, JERra^clr, 

Jhrem to amd «qlMK9ribe4;he(<'>^ ^^ ^ Oetob^ 26th, l^S^ 



• 



ft^pRaiA---STBwtoT Coumty: -•; • • ■ ' •* 

Perapnally came%rao<^ Mei^cei^ who Ibeiqg duly swora, de- 
poe#h and taith,*^ that tipeii<tt|!^tiiael*^the<ca8e of Thb State 
itf« /af elr l^^eccer, that he bad never heaitt of the^^xpreesioa of 
mnj {Xfoxion hy Ricbftrd if. JBoat\rk;k| one of the Jury who tried 
satdysad^* to tOi^d»ginlt. or innocence^ *ai^' that he* did* ftot 
bAfthat'sM ^ilUiid FSiyt>8];mck had aabl that d^pteent 
01)1^ to a«d frdi^d Jb\4)iing. 
*•- . * • %. • \. . .. J^tJOB MbAgSR* . 

•IBwoni {0 md^ihifW'^^^^'^Niftre mft tBi§ Octo]^i»£6th^ I85|v 
C. >. WalkIb, J. $. 0* . * . • ; 



• % 



. . *• . . • • 



The State's CooBBel then iii^rodaoM B, 9. HamSol), C^. 
<me of the JkbtOTuefk fef the dtateiamd h6« testified i^t, it 
waa tmfc he hai beard*. V. Boa^wii* e^pieoa opinio^ •uiAi. 
yonfble^'ppBoner. Tab Soliciter i2bher{A«th%n intrOduoed 
folvi A. ^Tv^er^ A. Eyaps %mdrll*H^]^{n^U, ^n. AU/$n 
fieys'for defendltnt, who daA. testified <&at ihey IkiH jtitvw 
k^urd said Bostwick expaeAs ^ny 'opinion as to -tlte gaiU or nv 
nooencf^ .of 4)ie jpiltoB^^. • •«*>**. /, 

Ka Solicitor then iatoochiped Thomas K^Morton,. one of 
like JiflHHis -ifba tf^> U^eicaiM^ to* prove Urtit ikdi. IT. Boi^f ]|k 
yas dlie of thekh8t'w}¥>^^d%o1lM Vei^; ttfiikmlll ll«^ 
MHerfKeiHU^sgU •eeiwidLMtMiftgMiHrii A^-iMMk % 
il^l^yti'heWtlinartyibi^lifc^Saaifc^^ 




^ ■ ' ' * I ■ ■ ■ 




Micdte' fff. ^ Sti&, 



■ - * 



f ■ _ • : • • t •* v * * ' '^ » « . 



« 



dohr 8?f^)m/ saith tbM tbH moniiD^, (neiji after ^ tcial of Ji^ 
COD Mercer Kf moi^ilii:^ JBio^ard H^Aataiy.mi^. of. tl^ Jtfr^ 
who .tried 8aA;(;juy, Jold deponent that he^did not beliere Mbt; 
Mi^ougl^tto Have beei^o^tivioted/^d t^at Jio, ^4 HamiOB, 
womld not Have agreed to t;he vefdiet b^l ft>r t}\e fa^ that i\iff 
were all again^ hjm ; and Richard F. Boatwick and flief qpnld 
lyt do aiiy thi^g iy t^tMelves.' • . at .. • . «^ • 

. . • . MA»tON jr. JJJlTKpa 

SwoiDi.to«and sap^ribefhtTN^fovf morthis Octobes^tlk, 'iSH^ 

C. J. Wai^Abj J.«t.,G. • 



-•■•■* *• '• • * 



. • • . • 



,i\nd the d^fenda^t*s.,Coan8e}.thfn,inyo^uccd the stpiieMeat^ 
<l(.i;.H. ]SeaIl,.galyin9f. T^alk^^nd jj^iii^. %i^^ 
npys in the case, who each stated H^U^plfk^Q^l&t Bia^ar4 
Q^rriaon^hvd teld *1^m that he did not .agree to the Tei:^t# 
It^t Qoffer^Jt to l^ iidib'j^ttght jn^^tSed^Ulip fie otold Bot*e«n- 
trol the/est 8f the Jury. ' i i * * 

W^en the Jlirjr r^tHrned th'eir veii^^) they were polled^a^d 
fj»i^ajH:fe§dJ»theTerdirt^ *. • ' . •• •• 

IJb^ these ^aiepti<tf^^j9|for is ass^e^ *. . / 

J. JdHNSOi^ ^CK¥^,& JJReall, fei pliqptif Ml eiyor. . • 

error. . . , • 

« 
jBjy tA« (TfHA^-^^ABiYES, J. dJbliTeri A^ 1)^ 'e|)tifton. 

*• . .« -^ •* • • - ■♦ ••♦• 

^^W\,Wlffa4fj^kJ^^f0rB^ weae callad ]eip*4a*4ti| e^M, tkay weiv 
mts^ ^4U^;t^M#iaaeMrak.'^if^7^ «Ay tfo^aokyitiiiif 
^i^lhA-ito » lM4d(al j^iviflMwk^V: tlis |0ui0a' h^ ti Hii Hy * 

> thorinng amdi qiaeitions. No objedfion vmimade) tft Aetipm 

l» tht | w<l it y;ig %w >» ]j ,4M?i» irf(i i » i >i *«ft#i 4»M«pNi' 
aikecT fcv, ot mode ^r the Coarl. Ha maj havie 




GOiiUlfllUS, JAliUAB¥ WBM, IMS. m 



Mereer m. Tbe Sum. 



he bad die nf^ ta nppoee, tbat tbe qaeBtkms were pot bj «i 
understanding between tbe oonnael, an^ tbat ril objeotiem 
were w^ed. . We thiok, tberef<(pre, that in tbis proceeding 
Ibe Court oommitted no error by not interpoaing, auppoaiiig 
tbat tbe queations were not aotboriied bj law to be put>in tbia 



*Bv|^ we are not sure of tbia. We ratber incline to tbiiflt 
that tbe proviaiona of tbia Act, merely regulating the form ci 
trial aa tbey do, apply to all triala taking place aftef tbe paa* 
aage of tbe Act, wbether tbe offence waa committed before er 
not 

[2.3 In tbe course of bis cbarge. Judge CrawIi^obd remark- 
ed, tbat confessions were the ^' highest l&ind of evidence';*' and 
qf this, Complaint is made. It is insiste4 that confessions ma^ 
not be the highest kind of evidence ; that they may be made 
imder %nch circumstances as tend to involve them in doubt or 
suspicion. AAd that the charge 6f the Court w^s calculated 
to lead the minds of the Jury away from the inquiry, whether 
cr not any such circumstances existed yi this casc^ whether or 
not the confessions' of tKis prisoner may not have been made 
while be i<as in a state of mind i^nd body, which* lessened the 
Talue of his admissions, and rendered them not the highest 
kind of evidence. 

Tbat jjoatice may be done to tbe cbarge on tbia bead, we 
ajionld look to the circumatancea under which it waa givei^. 
Tbe charge bad been concluded, and tbe Jury w^ about Hk 
letire when tbe Coi|paet tor prisoner aroae and aakedtbe Coiwt 
& ^fcim(e the Jury aa to confea^ona/' Thereappn, t|ie CofiPt 
inatfnStea the Jury, tbat ^^confeaoiona were permitled to ||i 
WCoye tbe Ju^^, and f Ithoogh «pomtted ao to jfi^ .yet tkfff 
ahopid vei^ them 1^ t^iey <^d other teatimony ; and tbe nAa 
of ^i( waa, tbat any co^ieaaioa nade under Jhe ioflaeMt. if 
h^ ttf^fear^ wy no eVideiice wb^yi^, and they abopld difai 
PfDdJ|jpi^ely ;*butif Uijyreh^4l{>^ tbej^riawieniidi^ 

mfgWJHM vitbeot $fijf sa^ ii|8ttenoe iyM% %% and did Jt 

_ • 



ITO SUPBBMS COUBT OF QS6BGI/k 

Mercer vi. The State. 

freely and volmitarilj, tiien saoh oonfiDaBions were tlie highett 
ki&d of evidence ^;ainst him." 

It ifill be observed that t^e Court was thus requested, in 
general terms, to charge the Jury " as to confessionB," aad 
giwe in charge the general and elementary principle wUnh 
govern the subject. In a general point of view, all that wis 
changed was correct, and if there were any special cirouijptan- 
^8 in the eridenoe, which took this case out of the general 
rule, to these the attention of the Court should have be^i caO** 
ed. In the absence of this, and looking to the generality of 
the request, the CoUrt may have rightly presumed that only 
the general instruction was desired. But [perhaps it may be 
said, that if the charge be examined closely, enough was ccm- 
tained in it to direct the attention of the Jury to any^circum- 
stances which might R^ssen the yalue of the confessions as evi- 
dence ; for we find the Court, while telling the Jury, ^hat if 
the QonfessionSi ^c. were freely and voluntarily given^ they 
wexe the highest hind of evidence ; at the same time spying, 
that they should he weighed iy them as any other te9timany. 

After veilQct in thlb case, a motion ^as made for a new 
trial, and o«.pruled by the Court on aU the grounds taken. 
And this decision lA before ite, alleged to be erroneous, because 
-7-I. The verdict was contrary to the evidenpe. 2. To the 
charge of the Court. 8. Because it was contrary to law. 

[3.] A very forcible criticism has been made upon»die clnift- 
•^ter of this testimony, and we have felt the weight of it. It 
]S alleged t^at most, if not all the int^eBseB who were present 
St this homicitte, w^e iji a'state of beaetl|r i^to^dcatioii, ai^ 
•¥efj unfit, i^roperly to take pogf isance of, 07 to report wh^ 
t^UMipirM. 

^lis is pivtly true, ^t thoi^ trae, there are set^rst^ 
•tttpstanoeenot depending on tiie st|tementB of ti^ itrnksiAmi^ 
(Ire speidc not now iil the admistioiis made by the-piriB- 
:^,) whieh awthoriie 4a stymg sxfepion>n th%t the. cbtetoil 
t^MiAsaMiatt&ehifadsoflkefirisoner* ¥et tke ii m m 
«M «fttiNl|f m&Sa/otvtj) tMiflJieiiee, dnving a part of the Ml* 



0DLUMBV8, JAITUARY TWM, IMS. ITl 

Mmwt M.The6uftt. 



«6 ltt¥e beatetod to saj that tfiis priMner eboiM be depoifel 
of his life upon such testimony. Not that it was all iSke 4Mik- 
BMoy of dronken witnesses; but that a tfery large portwn of 
tint which was material, was jso. And not that we were pf»> 
psnd to say, that aAy other i^erdict could have beei^ rendered 
OB this evidence; but that we feh, as Judges,' that the respoa- 
ftbilily of depriving our fidlow-man of life, upon boxAl iestisM^ 
ny, was very great; and that in consideration Of the circna- 
dtbaces, as na witness had seen the mortal blows given, and 
the evidence, upon which reliance was chiefly had, as ^we 
ftoaght, for a conviction, was circnmstantial, the sentence ntight 
have been commuted to perpetnar imprisonment in the penitiBn* 
tiary. Ajii a BMJority of this Oonrt were inclined to sepd the 
me bask with instructions to this effect. 

Upon' looking* more narrowly into the testimony, however, 
we have become satisfied, that there is evidence^ef the prison* 
er's gmlt, which is not circumstantial-— evidence cotisisting of 
ecnfessicms made by him, and deposed to, in part, by witnesses 
iriio were not intoxicated, and whose testimony is notimpMbh* 
6cL ^ 

We &id James H. Jac&son saymg, that the father of GtMn 
B. Lee (t&e decedent) came up, after the bomioide/ had been 
•ommitted, and said, that the prisoner haft killed his son, '' aid 
dionid hang,*' when ^^ prisoner spoke very low, and said, he had 
donenodung more thsu he wanted to do, and he did not care 
•Stiiey hung him, or what they did widi hikn." 

MhL Mary iSHs, a witness who was tot one of those who 
were said to have been more or less intoidcated, says that she 
wmt to the place where the homicide ^waa comm^^led, on the 
night decedent was killed, with Mrs. Mercer (prisoner's wife) 
sai her children — ^^heard prisonerteyhe did kHl €hreen B. 
Lee, and would do it if it was to do again." • 

Bamriel Wright said,.that ** on the morning after diekiHii^ 
of Qreen B. Lee, was at B — asked prisoner hew he Mt 
ftisoner answered he would feel better if he had some oofosu 
W. then asked prisoner how he felt about the scrimmage er 
ef theH>ver ni|^ or wlu4 he iuid dene : his anvirer Iras, 



m mpieoKE court or omnmuL 

— — — — ^»*-'i «■■— ' ■'■ »■ ■ ■ ^^Mh— —— , 

Mercer m. The Sbite. 

^Sasn, I have done nothing more than I expected I "vro^ &• 
iwe*jwB ago*." 

Charles T. Connally (a witness of whose high duuracter lor 
Tcppectabilitj the eloquent Counsel £ar the prisoner sprth^ 
sajB, that he *^ was called twice bj pri8()ner to come to Uol 
He Aen went. As he was approachmg, prisoner says, ^ Con*' 
mmUjj I am in strings'. Witness i^Ued, ^ I see jon are ; I 
am sorry for it'. 'Witness then adced, ^ how came yom to kiH 
Lee, or what canls^d yon to do* it ?' *' {[Did the {unsotier de^ 
tt^ or preYarioate, or speak doabtmgly, like one who had com« 
mitted the act in a dream of madness ? Let ns -see.] ^^ His 
m|ly was,. ^ I can't tell yon'now what cassed me to do it.' " 
£We ipight ccmjectore that this arose from hia not reyoUectiBg. 
Bat mark what follows :] ^^ I then asked if they were in a row 
oordifficvlty that caused him to kill him. Prisoner 'relied, 
* no ; there bad not a word passed between us.' He Umk went 
On to tentok-^^ It is done as you see it iherey (this was next 
morning, in view of the decedcuit) ^ but I cannot tell yo% now, 
iMbf dnised me to do k. 1 mil aeknowledge t%« wKA trtOk 
to the Court.' " 

SMuael J. Johnson, a witness for tiie defendant, swears that 
^at commitment trial, he asked priaoner what he UDed Cbeepi 
B. Lee for. PrisonA* answered he did not know, for he l»d 
M4hing against him." 

Li iriew of these confesfijons, and taking them in conneeiiMi 
with all the other testimeny^ we hare felt constrained to 8Djr« 
that the verdict of the Jury* was suppoitedby ' the evidence ; 
and ^t .we see no feason, because of the intoxicated ooiiditisa 
in which s^me of the* witnesses w^re, to disturb the judgment 
lA*.this ease. * 

[4.] li was argued thaf the verdict was contrary lo law, he* 
cause that this prisoner was overoome with fiquor, maSk (m ft 
was inristed Ab testimony shows) he knew not what he was do- 
jtfg, if he did take <be life of the deosdent; thai h» llad no 
miiirsr against him (who was his br0thar4n4aw) hot that hi 
struok the mortal blosrs in irrespodfeible madness. • 
- To iIms appeal, weoppese the lawxxf tbeland-^lbefanr whssi 



COLUmOB, JAltUABT THOU, 1895. iH 

Motmt «c The Sittft. 

if^dmrtSj ttmt whmlury dnnkeBneis* << shall not be to oio ai 
fSir BHj criia^" To H we oppose mere Ama t&is; v6*pre8eBl 
rsatai, plain polioy, and tke fitotsof diis sad ease. Lei'ni 
gkfioe at these &els for a mememt. • 

Oaf tfae 12di day of Moyemher^ 1858, ihere was % miKtaa 
OM^er at a pkee calM Bombletown, in Stewart Gotintj* 
Many persons were assembled, and among them one or mxfn 
sandidatee fbr pnbHe ofioe. Out of this eupcnoutanoe, perhaps, 
gciw' some * eleetioDeering and political exellenuttit after the 
mneter^ Not a tttfe strong drink, too, iibs eot/RBBsd npon ti|e 
oeeasioB, and the decedent, who seesn to faaVe beoi a leaditag 
BMn at the plaee, called npon hfs party friends^to drink wi^ 
Ihb#; when*^ pmoner, who thonght t^ brotheir-ii^law of the 
decedent, was opposed to him in poKtics, expressed soiiie exaa» 
pe^rtion, attd pfqKwed that a candidate of the opposite pnty 
wtiowarpaesevt, shoiM also call for driaL As aight s^ 
ptfoairiiei, most of the Company disperse ;* b«t some renudned, 
apparently for the purpose of prolonging the oebaach at (me 
^theee mkg of intqai^ and sevrees xrftvim^--^ gro gsh ep ' 
for that partiedlar phye mads and pr o v i ded. Herip these piaK 
sons, aiiNBg them the de<Adeflt and the pneener, aqseaiUely 
andaH eontknied to pfy theiK)aslTes with ])he vde ^hriofc iheet 
retailed*-sr drink as' '^thick and dab" widi poisoiiow andinpt 
flaming ingredients, (aceordiag to tl» desdnption given bj i$m 
Connsel tor die priscter,) as was ever the' disgusting fi^inSd in 
a wteJk'e cfildHm ; 'antil every maii,*]MliidiBg ev«i the jdispep^ 
ser of the misohiefiwerknig tfttid, (fltlaimstsr tot such an akke^ 
tike keeper of^dK ^op himself^ had beeome mo«e or less iMe»t 
ieatoiL ISien it ias, when the ni^ bad oonsidHrably aiIvMh> 
eed, that a qnawel arose, (is is ef conrsl. atway»to be eipsHJied 
on snch occasions,) between some of those present Ths Ase^ 
4sttt4lBI gifigg vent to soaedimg Kke poliiiesi en ^ JWm en t ; 
kaedEeS dosm 00$ df the ownpany ^ ef w^Mnn he spoke aaobao» 
ieis^ ham ftem doe oanse, toid thnsst hm 'fimn the ifo»sSfc' 
% The next thing stated is, that the pris(tesr, (v^ probaMy ee» 
poosing the casve ef his pelltieal friead,)is seen in esntaot widi 
ihe deosdmt, with a bbedy knife in his beinds~lM fcc» Uid 



VU SUPBllfB OOAJBT' 09 OKftGLL 

Iferoervt. TfaeStaCnl. 

iMDda dripping ^th blood ; and pmsently «ft«nnurdBy Ae d*> 
Mdent 18 foun^ dead, covered with sererd gMMfy iroaiide. 
Sobeeqaentiy, the prisoner throws Us knifo into the basfaeSy 
according to the evidence. It is found and iadentified a9 a 
kntfe which he had previously oi^ed. And afiterwards, he 
oeofesses towveral persons that he had takea the life of the 
decedent. 

»We shall not.continne this reference to the testimony. Oar 
oidy object has t^en, by this sli^t rewtfie to riiow, that g<^Dg 
upon the 8iq>poAtionihiB^t the decedent was Skin by the prieo* 
Iter, there is nothing in A» evidence, (such as b contended fer 
bf «his Comisd) the effect of iHuch is to show an excuse in his 
drankw madness. He voluntarily placed kamsel^in thiitsil^ 
nation, 4ven if he were thus drmyc, and if he oontinned to in- 
flame himself with liquor mtil hci had' rtBadied<aiieh & pitch of 
fiendish •phrenzy^ that without any ca«ne wfaidiean beaai^ii^ 
ed, unless it be m^e poUticid excitemebt, he ^could imbnm hm 
habds in his brother's Mood, there can be no excuse for snch 
iRphuklarjr madness— 4here can and should be no ttmae fer it; 
l n ^aus e it s^ows a heart feitally bent on nutettsfj; and deQMr* 
lAtly at ^mi^ wilh mankind. ^ Siit riiodd be ex cu se d , wlttt 
§pod aadpeaoeable^cHtaflen is 8a|(».iHio may dJkiCe to comA«s 
contact with the reckless ruffian in his cups, t>r the drunken 
d^^auehee fresh fmn hb nidnigfat revel?* 

There is, in the evidence^ a statement'.!^ an unimpeaohel 
witotesBi (Henry Hanrison) who says that he hidrkneirnprisdoer 
fer twenty years, and that fbr *^the last feuy years he has had 
the character <^ being a dangerous mai^ wh^xT^i liqaor«" Ji 
tUc-lNS so; there is the more reason why heshould WheUtMS- 
yenrtWe Cot stdr an let, committed m a state of vohmtaiy 
druWrenness. 

, [6.] One of the aangament? of error in this eaueis, timttii^ 
Qiurt rifosed a new trial on thcground th&tBichard F. Bort> 
wiek,'a cTarorniHib tried tins priMMr, had hefese the trial fena- , 
ed'and expressed an ophiion as to the guilt of tiie prmoner, vis: 4f 
hiadiBaid that '' he ou^^t to be, and wedd be l»Hig." 

The recerd shows, that the ^^saidBostwiek and some oAir 



f 



COLUMHISi JANVABT TBBH, 1M5. |7» 



persons were tajkbg about the eurcmnstances of tlw murder/' 
Acibat a statement was made in rehtion lliereto by some one 
present, and ^^ that said BoAwiek replied, if such were so, thai 
said«Mercer ought ^^ to be hong." Bostick was not put upon 
his voir dire** And as the Court below decided, the statement 
showed that he had no fixed opinion on th^ subject, or preju- 
dice against llie prisoner, but the remark was a mere loose oh- 
serration founded on the unsworn statement then made in his 
presence ; and indeed, was cautiously guarded, for he said, ^4f 
that were so," &c. The presumption is, from the record, that 
such an impression would have yielded to evidence deHTe^ed 

uader oath, and that triors woiUd so haye found, had he been 
put upon triors. 

[6.] It is also urged that the Couft should have granted a 
new trial, beeause Biohard Harrison, one of the Jury who tried 
the prisoner, had informed ^veral persons, whose statements 
q>pear in the record, that " he did not agree to the verdict, 
but suffered it to be, brought in, because be could ^^ot control 
the refit of the Jmry." s 

In the firstvjdace, this assertion of the Juror is not sustained 
by the record, ^fhat show^ he did agree to the verdict, i^ ^ 
way which is known to the law. In the next place, a Joror 
cannot be allpwe^ in (his ^y, to impeach his ^verdict. The 
practice is too plainly inq^^roper and dangeroi^ to need aigr 
fiirther c(»Dment from us. « 

It is oopc ao|^mn cLifiy to affirm this ju^gnenL 



No. 82. — William D. Shocklh, plainMrtn error, n. 9^. ^ 
DaTift'afid eilhen^ dtoftMantif in efvor. 

{!.] In ftUachnwDt, the tMMid, thoag]^, for s vam.grtaUr than isokie Ite 
sipem ts be dit^ If good* 



tff .S^PBSIfB COUBT OV QBOaeiA. 

* 

. AttiMduntiity in Murioir 8aperior Court. Deciaioii by Judg^ 
Pbrkins, August Term, 1854. * . • 

« 

The only question in diis ease is — ^whether bjx attaohme&t 
bond, giii;en under the Act of 1838, is good, which ia for mote 
than double the amount of the debt sworn to. The Court be- 
low held the attadiment to. be^ood, and this decision is aasigja- 
6i as error. 

CursR, f<Nr« plaintiff in error. 

Pryor, for defendant in error. 

B}/ the Court. — ^BBNKiNa, J. delivering the opinion. 

[1.] The Act of 1888, to amend add explain the seoond 806* 
6on of the Attachment Act, of the l8th o^ February, 1799, re- 
quires, in attachments, the plaintiff to give the defendalii bond 
snd security, in a sum at least 'wpaA to doublo die amount 
Mlomtobedue. 

The«meaning of thb requisition is, that no bond,*- for a sum 
less than double the amolmt sworiMto'be due,|ShaU be received; 
tut that any bond for a sum equal to double that amount, or 
for a sum greater than double that amount, shall b6 reooyedw 

This is clear, *bQt)i fifom the wippds of iiHS Act) and from Ihe 
words of the^part of the Act of 179^ which this Act was pass- 
ed to amend. Those words are — *^ ^all take bond and securily 
(^'the party, for whom the same may be granted, in double the^ 
mm io be attached" — ^not in at koH double the sum* to be at- 
tached. 

. In this case the boxid was for a 8«n 'equal lb more than dee- 
|fe the imooipii agfropt ^ ^ dm. • 

The Court ^m »^ Ai9fiBir^«i»Mlttig A^lmd good. ^ 



CdlUMB^S, J){NtARY 1«RM, 1865. 17T 



i ' T" 



No. 33.-^WiLLi4M D. SpocKLEY, plaintiff in error, vs. G. (X 
» Davis and others, defendants in error. 



£1.] Where A agrees with B that in consideration that B will become his 
9Brc^ to C, he, A, will tarn over choaes in action for his indemnity : ffeid^ 
that A being in failing circumstances, tf Court of Equity will decree a spe- 
cific performance of the contract. 

In Equity, in Marion Superior Court. Decision by Judge 
Crawford, August Term, 1854. 

G. O.* Davis and others became the sureties of Wm. D. 
Sbockley on two promissory notes, amounting* to (1200, upon 
^e agreement and promise of Shockley to turn over and trans* 
fer to them his books of account and other evidence of debt, to 
secure \hem from losis by reason of their suretyship. These 
iNwks^ tc. twere partnership assets of Shockley * & Wooding. 
Bttvis and his co-sureties filed their bill, alleging tMt Shockley 
bad rdhsed to comply with his agfeement ; that l^ was in fail- 
ing circumstances, and that suit was pending against them on 
Ifce notes. The prayer was for a specific perfoni^ance. 

^Rte over-ntling*of a demurrer to this bill is the error assign' 
Ainthitfcase. ' * 

' OiiPrBB and S. Hall, for plaintiff in error. 

Fbtob, fbriddfeiidants is el!ror. 

My ike Oburf.— ^Lumpkin, J. delivering the opinion. 



[L] CftA tki« bill b« miMled, iHld a« it is toeftflreo Htf 
ipeeific»peiformattoe of an ^ppeemmi, to tnni or^ o h9 > > m 
t0|i«Q<t6 iackmufy the covplaiMtotP agftUitt di^ir saca^jf^^ 

Uk d^oMMdio M wrenl grmuic|f« If is. *dMkA Jlkft ^ 
V. Qtiirt of Eijiii^ liaft juri^^ 

fciwinco of a oonM^ot^ mlk»6f$ to .ohot^ MM om^wimj^ 



f •*• 



178 SUPREME COURt -OF GEORtHA.' 

Shocklej vi, Dayd ^ <d, 
L- '-^ ^ 

it has not, for the reason that adequate compensation, it was 
supposed, could be recovered at Law,' for the*breach of suclj a 
contract. All parties are entitled to a compliance with thdr 
contracts. And it is no good excuse, that they may riscoT^ 
damages at Law for their breach. * Instead of the party's hav- 
ing the benefit of his own agreement, the objection upoif pm- 
ciple to this whole doctrine is, that it. allows a Court and Jury 
to substitute so much money as they may think sufficient to in- 
demnify the party against the injury he has sustained. Reme- 
dial justice will be incomplete, until this defect in the law is 
cured ; and until it shall be established, that all parties shdl 
be entitled to have ftieir contracts executed, if it be pratticable,, 
due regard being had to the rights of third persons which have 
intervened. ^ * 

.But whatever imperfection may exist in* this respect, Aere is 
no want of power in the Courts to maintain this biy, provided 
it was properly framed. The bill is not brought to enforce, a 
contract of sale respecting ohattels, but to Compel 'the dbfend- 
ant to execute the indemnity which he promised to the com- 
plainants, to induce, them to become his sureties. ' No Bat{3&c- 
iion could be made for the failure to perforih such an underfii- 
king, especially by a defendant who is, a& alleged by the biD(. 
^^ in sinking circjimstances," and against whom judgments may 
be previously obtained by others. Li which event, the remedy 
at Law would prove to be wholly unavailing. 

Nor is it any answer against the equity juri8<fictioii, that the 
complainant may attach or obtwi a ne eoceat. Did the com- 
plainants go into Court upon general principles of Equi^^ it 
would be competent to show that tiiey had i^ adequate and 
infple 06mmoti Law remedy. Bat not so* when they pray liie 
speiSfie performance of a contract * 

' thSs-bill, however, is deficient in two partioakrs. FiM.* bi* 
not stating what books of account oif evidenced xtf didbt were to^ 
be toir&cfd dv.er, tf th^ complainttits were unaMe to 8|»eeify 
tkiiB 9ko$$9in action with mhiiileness, for want ^ aoeess to^ 
tlMMBi^' they shomld hai^ ehv^^lhis«fiM)t, by way of excmeior 
iheir fi^ of particularity, and have called upon the defeadiBt 



COLUMBUS, JANUABT TERM, 1865. 17^ 

Johnson, kc v$. The Gorernor, Ac. 

to siij^ly the deficiency. The charge, in this respect, is too 
Tagne. The decree cannot be more definite than the bill — 
and if rendered^ could not be enforced for uncertainty. Sup- 
pose a decr^ were rendered in conformity to the pr%ydr of the 
bin, that the defendant turn over to the complainant his books 
of account «nd other evidences of debt, and an attachment were 
moved against him for not complying with*the decree, could a 
Court determine whether he had or had not? 

But again, the notes for which the complainants became 
surety are, upon their face, the individual debts of Wm. D. 
Shoddey. Prima faeie^ he nad no right to pledge the part- 
nerdiip fSMs for their payment, or to secure those who were 
bound for him. True, the bill shows that these notes were 
^ven for the paHbership debt of Shockley & Wooding, to P. 
McLaren k Co.; still, it should have been distinctly averred 
that these notes, although made by Shockley alone, were never* 
tfaeless the notes of the. firm. 

If liie bill be amended in these particulars and supported by 
ntiafiM^tory proof, the complainants will be entitled to the re- 
4m8 whidi they seek. 



Ko. 84. — John Johnson, Ordinary &c. of Muscogee County, 
]daintiff in error, V9. Thb Oovebnor, ez rely Francis J, 
Abbott and others, defendants in error. 

p.] An Act to aatboriie and require the TreMorer of the Poor School Pond , 

, in the Ootmfy of Ifnsoogee, to pay, befhre any other daimi , over to oerttflii 

teachers of poor children in taid Countj, for the years 1861 and 1852, out 

of the poor school fond thereof, the foil amount of their accounts, and all 

arrearagjss due' them for teaching poor children in said years, oufr of any 

• Amds BOW in hand, or out Of the first that may be receired, approred Jan* 

^mgj IQjkb, 1864: SeH not to inpaif the'obUgatioB ottipj legal coatrae^ 

,4nd Hfi^nfyrtjiijkoi u9Con^it|rtionaI. 



100 SUPB3SME COUSV OF QBQBGU. 



John90ii, kc M. Th9 Qo?«rpor, iiL 



(^.] The Act of 1852, making the Ordinary a Gommtssioner for the lK>or 
school fond, does not require, that if there he not enough funds in huid| al 
the end of each year, to pay the teachers in full, the balances due them ft^ 

* to be postponed until the teachers of ensuing years are paid out of t^ 
funds of the year in which their Berrices are rendtred. But Ihe amoiiai of 
each teacher's account for the current year, fixed accor^mg to the rates ptis- 
Bcrihed in that Act, after all older and just claims have been pfldd, is to be 
paid infiiUj if there be enough to pay in full; if not, ratably : and the bal- 
ances due stand in or<|^r to be pud Out of the taxation of the next^ear, be* 
fore the accounts of teachers for strricep rendered in that yepr. 

^3.] The claims of the tethers of 1861 aod 1852, in Muscogee Goun^, on 

which only a ratable proportion has be^n paid, have not been satisfied in 

ihU, because there were not fands enough raised, by taxation, durthg these 

- years, to pay them ; Imt the unpaid ^balanoM Mre just add valid clsfiHf 

. against the State, whieh ma^ be justly paM as directed by the Legidateie 
in the Act of 1854, out of any funds now in the hands of the Treasurer, or 
the first which may be received by him. « 

' Mandamus, in Mnscd^ee Bnperior Oonrt. Decision by 
Judge W6BBILL, June adjotmied Term, 1854. 

l%e General Assraably of 1868-4, passed an Aitt anikorinng 
Md requiriBg Uie Treasurer of the Poor Sehoel Fiind of IHMb^ 
eogee Oonnty, to pay to eaoh and all teaehers tfpeor d hflcte M» 
for the years 1851 and 1852, out of the poor sohool fimd^ 
the fuU amount of their aceoiuits, and all arrearages due th^ 
out of any funds in hand or* the first that may be reoeiyed. 

Francis Abbott, a teacher of poor children for the year 1858| 
prayed a mandamus against Johnson, the Ordinary and ex offi- 
cio Commissioner of poor school fand, requiring him to diow 
ci^ise why he did not pay over to ium the amount of iris Skooonn^ 
fnom the food of 1858. Johnfwm returned to the msai^ww 
tfiese facts: That he had in hai^d from the poor sohoci tux, 
recommended and assessed for 1858, and from the State pow 
school fund, sufficient to pay the teaabers for 16£3^ jfins o^pti 
ftr day for each sdiolar. Bat that noder the'MtMMiea- 
iioned Act of 1858-4, the teachers for 18^ and 1852, i^n^ 
ed to be paid out of this fund ; that the failure of the Spring 
Xerp of the Superior Court of M«s<Hi(gee, {<^ 1852, ronderedrii 
if^^oiiiUe to \fkj a poor- schooltaat fMr that year 7 and'heMe, 
the failure to pa]( the teadiers hr that year. Mt prayed ttt 



COLUMBUS, JANUARY ZBBK, 1855. 18t 

■ 1 i , , IL. 

Johnaoii, Ac m. Ke Qornnotf Mc 

Itncjltioii of die Court «8 to hia 4^^ in the p^nnaee, and ^ 
pn&aUy as to the mode of amdidiig the aeceunts. The Court 
dttected the fond to be pod to the teachers for the year 1^58. 
This decishm is assigned as error. 

' Inqeai^ s^d CiuWFORD, for plaintiff in error. « 



W. Williams, Tor defendant in errtNr. 

^ the .0!nirt.-*-St7iiR5B8y J. delivering the opinion. 

4 

This is a contest between teachers of poor children in the 
Ce«n^ of MoBCOgee, fiiHr the years 1851, 1852 and 1858, in 
uristion to a fond in the biuids of die Ordinarj, raifed by tim- 
liion of die year 18S8./ 

We diiAk that it is to be infefred from the record before uto^ 
thai the teaeheib of 1851 apd 1852, bare Hot been paid |be 
aaaomit of their ^daios iqMm the cdonty, in foU. That lecerd 
jhtpralhat^ aceoimis of die teachers of l^lSvere atl4^pd 
bff. tlie In^rior Conrty and pai4 acceding io tiie grdter of dia^ 
O^arty by the €oan^ TtreaapHr^— ^eome of thest a( die rMe sf 
4^oeiiiB a s(flM)liMr, per dky, end certain of them reoetrin^q)^ 
effie amoante. The balance cUe en claims of t&ese peMoAsy is 
notahown; but it appears that Mdi a balance esdsts. 

•By reason that die Stiperi<Nr Court did not hold a seesibn, in 
ibaeogee OMMy, in 4be Spring ef 1882, and of diemnseqiMM 
hX^f^ on the ^a^t of the Grand Jury to make the necessaiy 
rectfDittendado]^ the pvep^ fbnd was not raised fmr Ibatj^; 
aal^lBe* teachers of die yeur hate been paid 1 cent and ^mills 
a^|Aol|r, |fter day, ontjr; aqd there ia, therefore, a balance not 
p^ Ut tittm for diei^ senricee d^fing that year« 

^tt k i ^ ganuayy, 1883; 4(Ms iiilij^ct^ Wa» regulated by the pi»» 
tiMM 6t:^ Act qt 1848; iBtnd payments wete made by the 
Tiff iimlliitii in rill accorftttg to die amowit of the poor sdiobl fdsA 
ih buM; tod fi 8uckte^]ti8 as were determined by the o^tamiia- 
Amii^mf' But die kw seefosiset to have fixed* m^ r«le«lf 
clMurgSk by which* such teachersMfcre .to be r6gulat#L » r • * 



182 SUPBEIO! COU^T OF GEORGIA. 

' ■ I.I.I 

Jobnion.i&c. vr. The GoTemor, Stc. 

f II ■ » I ■ — 1 I ■ 

* 

!Dhe Statute' of 1852 gives t^his whole *matter into the c%re4>f 
the Ordinary, as commissioner, and fix^ a rate of charges, vis: 
4ilU fateB shall not exceed the amounts ustuMy charged bjf. the 
teacher^ nor such maximum as may be eetalblisheid by the Ordir 
nary in each county. 

Tm objections are snggeeted by the relator, as Ijvig in the 
wajp of carryidg this Act of 1854 into .effect — and one seems 
to have occnred to the Ordinary. ' • 

1. It is said that the Act is contrary to Ihe 10th section <^ 
the Ist Art. in the Constitution of the U». States as impairing 
the obligation of a contract. 2. It is.said that the accounts 
ef 1851 jMid 1852, hare been paid in full. 

[I.] The first objection is not tenable,' becau9e there is no 
sutfh contn^ct a& is supposed.- No' pledjge has been made by 
the State, uppn the faith of which thecl^ tea<^hers have acte^ 
tiiat they were to be paid out of the taxation ^f 185^. The 
Ordinary may have put this construction up<m the Act of 18^ 
and he may have made agrcfements with certain of these teaeh- 
er|,%hat for their services, they shall be paid otiit/pf tbe fond 
ef that year; and the effect of this. Act of 1854 may be to d^ 
&at sudi stipidatiims. But* if th^ State has . pledg^ itself to 
9a suBh stipulation, tbe Ordinary had no authority to^ bj^ 
die 8t%te to any such agreement,* and no contract to this effiopt 
binding on the'Stalje has been made. 

The Act of 1852 declares, diatthe Ordinary '^shall pu 
teacjiers of poor diildreii in the following manner, ihi^ $ 
to say: he shall keep on file every such account for the tuition 
of chil^r^ on the*list for each year,4is q^U be rendelre^to 
Urn, en or before the 25th day of December, inthat jeargpir^ 
ven by the oath of the teacher, spedfying the ])um]ber*o|f 4190 
eadi child was taught, not ezoeeding the usual rat^ of m^ 
teacher, nor exceeding such xoaadmum as may be eataUf^^ 
by the Ojrdinary in each county; and after .the 25th d^f ef 
I>eoember,he ^jfoXL proceed to pay all sudi aocounte u^.^ii^ tf 
tlie fuhds VjL hand be sufficient^ or rat^blj^ if inapfficiei^- |«id 
sUm^ kcqeyping as a ftind for the i|e](t year, any sq^lii^iwhjcli 
maybelefti" . • ./•,*»:' •, # 



GOLmiBUS, JA;KUAR-Y TrnSn, 1865. ia» 

■ I * I 1.1 .,. , 

Jobnfon,-4^ vt: The Ck)Ternor. &c. 

£2.3 ,Kov we think that a proiper construction of these provis- 
ions does hot make it necessdry for ns to say, that if there be 
not* enotigh fdnds in hand at«the end of each year to pay the 
aedbmftd of the teachers tfor each year in full, the balances due 
then, are to be postponed until the teachers of ensuing yeara 
are paid but of the funds of the year in Whichtheir services are 
r^dered. . This might be to postpone the payment of such baU 
ancM forever. But bur construction of this Act is, that the 
ameunt of eac& teacher's account is to be fixed in the way pre- 
SGnbe<i; that out of the ftmd in the Ordinary's hands, after all 
older and just .claims have been paid, the teachers for the 
ctnrent year shall be paid — infuttj if there be eflough to pay 
thcfti in full, if not ratahlt/ ; and the balances due shall stand 
i^ order to be paid out of the taxation of the next year, before 
*l&e aoccomts of teachers fer services rendered in that year. 
And so on from year to year — the &rst services will be first 
paid. !A^ is certainly the just and equitable rule. In all 
similai' cases of claims, the fir%t in point of time, is superior tk 
Equity. And we know not why this poor laborer should libt 
be as worthy of his hire, as othevs, &d equally entitled to hare^ 
the 4>enefitt of $he principles of juAice. •• 

*In tills view 6f the* matter, il the Ordinary has contraotei 
nUb Ufe.teMfaers of lW8».»nd agreed to pay them out of tlte 
ftmA of tUat year, if there be« siiffident in his hands {dt tw* 
puifHwe, and in {freferenc^ to 4Adiex Aaims, be has transcended 
h]A^'auihority,.and the act is not binding ^(Sn the L^gislatuie^' 
JSsA not being so, in the'same spirit of equity and justice ta 
lAodi we have referred, the Legis&ture had Uie n'ght to sm» 
as ^ley have eddy by the Ac^ of 1854, l3iatthe oldest aeeouanr 
shall'be^jrstpaid. 

[8.] The relator insists also, that the aoocmnts of these 
teachers for the years 1851 and 1852, have been paid and sat- 
isfied in full. 

We believe it is* not denied, that they have beeen paid a 
ratable proportion, only, pf what they we#e entitled to charge ; 
and it k insisted * that tiiey have been paid in fillip only because, 
aceoidiDg to the constmotion which the relator placed upon ibe 



■m, SUPR^kF OOUBT OF GEOB<|IA. 

— \ ■ — ■ ' - ■*- - 

Jo^pson, k6, vr. Tke*OoT«mor» Ire 

IftW, each sbt bf teachers for a pkrticiilar yeair were ire4«ired4x>^ 
be paid out of the ftmd raised for that year. And the fund for 
thotse two years being exhausted « by die paymenft wUtilihad 
been made, there was nothing left out^of whi^h Aefie t^hCirs 
nMght be paid. • ^ • 

Such is not the construction which we place upon*lhe hiw. 
The whole debt was due the teacheirs* Only a ratable proj^or- 
tion was paid. The debt was due by the State. The Stale 
owns all the funds raised by tazatioDy out of which poorteach- 
eac^ are to be paid, and if the Legislpture, by the Act o^l86fi,. 
has not iiuthorized the Ordinary to pay the teachers of e&ch 
year, first oift of the funds raised in that year; (and we havi^ 
shown, that it has not done so) then it had the perfect ri^ht, 
a]\d it was its duty, to direct that payment should be made ot^ 
of such fund in the t^nds of the Ordinary, to its creditors^ 
liiese teachers. 

As to the diftculty suggested by the On^pary, that^e Ae^ 
of 1854 does not provide a rate of payment or measure Of vaV* 
ue^ by which the teachers of 1851 and \852 are to be ptfid, ^ 
wmark, that the Act of 1^2 provides the rule which we have 
already^stated, that such letchers shall be paid aocording to 
rates which do not exceed the amounts usudjy cbargecl by the 
tocher, nar««,h «a«n»^ ^^^eAm^l^'hr.^ ^ 
di^arj in each county. And a^ the act ot 1954, ifuder eoif^ 
riill^ration, is in part maiUma With that of '185^, it is feuatO' 
pr4sa9ie, that the rd}e provided by the latter' w^s in ike L^^ 
i^ative mind, because it is «a reaaoitaUe and just rde; s&A 
hence, the Ordinary may Adopt it, in our o|>i&ion, in aettlnig; 
wSii the" teachers of 1851, under the dfaredtionB of the Adi i£ 
1854* . . / 

'JtfdgBiettt rtverlied. 



• 



■ I I ■■ ' ■II I I I I I ■ . ^i i i > I I 

««^*% _•> _i1j •_• *r*j_»_ ^ •• . 7 a_ ' 



McDongfl^ adfl/z, 4a «t. Otffcy, Assign^; kfi, \ 



Ha.-*86.-AKN E. McDocMLp, ti^'x; kc. of Dii9i«?%< 
Doogald, , plai^tiS' iu error, f;<. Edward CakKi . a^igiAA 
kc. defeollaiit iu ernnr* 

• • • • . ^' i 

[L] Where,- in the record of a case of td. fa. to midce ^a|^8, no q^dfr hj 

. th*e Court appeared, and tlierje was no record of a suggestioor befbre tlvQ 

Clerkf and order h^ hiifa : Held^ inasmuch as the Statutes do*not re^i^fre* 

this, and there is some doubt as to the signification of the 65th ^rnle of 

Court, a different cons&acti^n of said rule hiiTing prevailed: inasmuch as 

,tiie miiig of said order was only pecessary to the syjnmetrj of tl\e ceoor^^ 

and *not to the substantial justice of tlio case, andean amendment might 

hare been mad^ nunc pro tt^c ; and as the Court is not ^ell satisfied a^to 

tiie prop^ coBSlfuction of this rule,' that \% will not disturb A settled ppM^ 

ttee, which hat dispensed with the filing of said 8ifj|ge8|^)n and order. • 



1 

« 



. Scire facia%^ in Mi&oogee Superi«r GoHrt Deciaioc bj 
Judge WoRRiLL, Jm^ dSenfi^ 1B54 * * • . * . i • 



ds mf^k^mre facicU to rA«k% Ann E. Mc^oug^Qd) m 
fldm'x of Daniel McPoiigald/a party to. a^caiifle|>ending i^t Jb 
death. The death of defeiidant, Daniel iMcIfotigald, 



auggeflted of record, at July ^efn), 1858^ « hut no <H*der for aet. 
/a.?ko iasne. Cognsel £6|v Mrs. ' MeDou^ld nmyed to cjfoA 
the act. fa. On this igronnd, and bedanae they, inaiated (he eanii* 
Ifeaa ^jflcontinned and abated. * l%e Court re^uaed th6 motiofi^ 
sii thia ia the error 'asaignedr • • * * , 

• 
vJndge Bbnniko having been of Coimael mil$i&^q$M^4ilk 
notpronde. . • ^. r 

JomisoK k Pattersok^ for plaintiff in etror. 



t « 



DouoHiBTT, for defendant in errors -A 

Jty the Cburf .— STARH18, J. d^ymng the opipie»» % * * . 
[1.] For t)^e flaantiS in erroi^ i^ia i^^foaa^l^ e^erf 



/ ' MiDDiwig|lJt,tadiifjfc| Ice. jt^iMtfy ifn^yiim, Aft 
F--, . r— i ^ 1 ; » ■ 



/o^itiikhsQed for Ibe pt^rpose of makiDg pk^rtSte^idioi^jl be €)iiii3- 
Vli^«plpl^nbtdlig%Ure^M. . Thsl aecoidingly, tAwi) ike^^ 
ftftNtabt *ix| ^0 ^oas^' 4^^ ^^ ord^ i^tlM^.- Gomti ^loeelmg 
9ctre faei^ Ui iasae, khooldhayebeeuiilM^ipoBfteiiArateB;: 
9 r if not, a suggestion end order should l^ave been made in 
uritiDji^, befoi^ the Clerk, and filed among the prodl&edin^ ill 
iS^ /^aose^ GBhat without such order, Ihe record lacks sjfmme- 
D^, and is unintelligible. 

t We agree nidi.the Counsel for the p&intiff^in «rn^ that 

eucfi aA order of file is needed, that the record in sudf i^ caee 

w^. be rende9^d easily inteUigible. ' But we incline to thifak, 

:1fe|t Uy the»Stattit^ regu^ting the issuing of •^tc^/odot, this 

mm be done h^ th|f Clerk without the ^grantin^ or filing of Ais 

If Is said that%if our legislation is laMng in this regard, the 
iSfti Cemmdn^'tilhr Sble of Court 'jpresetsbes this requirement.* 
To this it i^ replied^ that* the pfoYisions of this section, ^^f 
ettl J td oases* of Mdrefadoi 4jo teny^ ji&dgment. /Hfore is some- 
tlfing in the hfngus^ empky^^i lo ^encourage this bonduaoiL 
¥et itQ ;belie^ Che onifocm construction has tflways bes^ in 
eur State, that tiiis^^d^tion ^Aplied to cases of %Gire facioM te 
Siiak^ parties.' * ^he {Aractiee, noWeveiCy^w^thyik, hasinot hlen^ 
te enter a*formal order dixei3ting Metre facias fo^istee^ but fil- 
ter th^ &uggesti|fn, it «has USnuJly been issued as mayJM' dr 
•course. * » ♦ • > ' / , * - . * 

However all 4his mt^ be, we are not <^ the opinion that the 
ibsei^emoT such' ordw, in this case, was* a .fiettal defeet ; -^r 
iriiether the question ^s <conticolled by the Statute or the rule 
of Court, the'oi^er might have been put o^file by way of 
Mnendm^nt, nimc fto tuhe. In either pdnl of idew, it issues 
as matter of.oburse ; and the* filing of the same is merely for 
tlte symmetry ana completion of die record. Consideriiij^ 
4(Aif that na substantial justice is to be^ efibcted by seeding 
Mk tha^cfse, wdMmeirhat doubtfiil; as we ace^ asto^the 
l^reper construction to be placed upon this rule of Court, we 
he»ta tf te dii|kyb a sfVlded^va^ intetfe^ viA.the^ 
judgment of "ithe CM0t below. 



8Moc(g k 0^ M.' Baddtr 4 Short Md lla jo. 

I I 11 1 li t ... 

Ko. 86.r-Bi>WA&D KxLLoea k Co. pltmtiftiii error, «». 96«il- 
udt A fiB^Ri; diBfinkfaaito itt ttror. ^ftn sams m G«tair 
B. Ma70, defendant in enror. , *' 

|a.] A}adgmAit4o6t nottMCMMldomlBtyif th«re1t adi Mecirflto ^^«M 
fiNMB k^witbiiM^aj^M thHft ita date^,|M4 If eatrktby tU flli«riff; on Om 
execution, follow- one aqolhcr at inleryfls* of le«v tlinn •fxei^jrtart. « 

Ija.] A';C. /a. whic\i exiits by virtue of a spec!l4 ofder pf the Co^rt««etf air^ 
derjrhich, though it calls (he JL fa^ta^ §lia^ says ^lat th^./a. ia to<et^id 
in Hen 3f ^ loet originftl'ii not an Mtt/, /& but biln eetablisfaf^a ^9pj, if 

fab] IHt ilNtt fbr the Skeilirt* eeB nnder Ajt Jk^ptopmjj^ •whfch Jfe 

^aa i^ leried tiia/.ytf. • « "* 

il4A Jlie ^kriif is net subject to be rnled ont of hia oennt j^ ■ . 



• • • 



IMteiLi.^ %t Jane A^jponed ytirml 19fi4» 

JnfiatearAdmuii^.Kelkgg^.Oo. a^iiiitl BocUtr.lt '■Sbtfl 

Uti 188».- b. 8e|^' |8i7>. ^ & .'€iBimN» Sheilff of 1% 
43bm^, k^ Aeji ^fo; .In J«iM;ifl68» (t fi. Majo, iMa 
ShMJg of fcw Oi»i|y,»BSWrtmMU^ftr)M»' IirtU^^iw*- 
like, Afi^^li^ie»l fi. M^^ lort, «t^lS»7xT6m, 1M6, «f 
Uattog^^vfimM (km^ <ta onier ita* faa^MUtfiM €R«git 
MtoeaaYdtMji/a. m'Seooftheiostorigiafek Shorty omtf 
Aedef0Bfb4ta,iatei9iDeft(l-2»affidaintof&logtf&^ tb»tale 

kjJfi|ro^-^^o»lW- • 

At Be oB X the jacttP"*°t i"* iHkkk ^ ft, fa. itaMd)«i> 

id. Beoaito the dUMfiifct ims 3Iegft^ iMlied. « 
ft^ BeeeA^ ti^ tfvj, ke- adverted by Ifeye^ |V1«^ at' ap- 
^paired hf %IUtfi.fm. oMeked^o beidiiniaaed, and aor tUe Mh 
*e W«mI* llie-aa^e/ * h. 

Oh tM tvlid dS this ffle^piEtiP, afediT erdeib an4 entzM.^ 

aOb jI^^^mi^i • e 



119S SUPRSlilI! OaURT OF OSSOtUGtlk. 

i I ' I ■ , I ■ ft 

Kellogg k Co. vi. Buckler k Short and May*. 

*r ■ : • '- 

*l0t. The order at* May Term^ lS4§y ordepng an aUoBfi. fm. 
ft> iqgoe. 

* 2i: An order June Sd, 1848, ordering tBe levy in Lee to 
be entered on the alias fi. fa. ' 

8d. At December Term, 1848, a motion made by Short to 
let aside- the alioi fi. fa. — 'Ist. 4liecaiiBe establiriied' mtbott 
motice to defendant. 2d. Because the jfi^gmeiif was dormant; 
luid 3d. Beeanse it wa^ paid off. 

• '4t{i.*A9 orde^at June "Term, 1840, tnaking the exitses on 
t^e*^.^. Tfi/'coiueht, a j^art of the recordi • ' • * 

5tb.*An order at May Term, 1851, starting, tUtt it %pp^to- 
liig that ii\fi fi. fa. had been leried, after which a Va« .^ti. had 
been Issued, and Short arrested under the m. na. jind i( Hot 
at)bearinir that an> disposition had been made of said arrfst : 

(•o^crSea: This .order ^^ eoftered en^e £ /a. « • • *• 

6th. \ ca. sa. issued 6th day of 'Noyember, 1840, on- this 
judgment, with thi% exftry on the back of ea^ sa. * (Copiedfirovi 
Meetttdons.) llebeiYed,'Oolumbud, May.. 3d, 1889^ $^^\^ 
it.|llirt t>f this ""fi: fa. ^proceeds of the abo¥^ stated sale^^-firon 
4b8ei)hD.'Be(hunQ,$sq. Sheriff, and I'ft!^ a^d Jury fe'< ^5 00« 

/ • . . pfflUE . T.* scnysY, Att'y fcr prilB, 

^fRth an arresl^of ' Sfaor^ 6n the ca. /a. 7th Noy, 1640, by the 
Baput^ 8fateriff->^(>h;'8 boflS Hb'appasAr ^^take 4h6 H^mest 
DebW> Oath, and aSi ent)ry, b^ 'thet^heriff,of -^^T^hai^ 
liy archr of pliaib^^i Attorney, wfth^n^hawng paidllieaiiioimt 
tie 14th Jpine,* 1861."' . -^ 

fth. June Ifltb; 1851, a motieif by Short's Cillinsel, to ea- 
teaonf minutes, nxBfie pro Uinc^ an entr/ from^B^ch Docket, 
^ppottte th^ ca. sa. a^^Sheriff 's rotum of ^' non*^uit at dcto- 
l>er Term, 1841," with an issue made up thereon by 1^ Ooim- 
sel for plfkiiitifb* ,. •.*«.' 

« Wil^tkifi.evkUtfceteforetiie Court, Gouafeffor plajjitiffil 
,aiOve4.*te> ditmiss the UlegiOity.* (Th^ 'Coi^ i^fbed the mo- 
tion and sustained the illegality, and t^ ^^ciiioci h assigned as 
Aw**- , •■ ' • *' i • /• . • • - 

At the sa^e t«p»«Aiuaa^gee Buf/mfm CmKf% Omassl 4k 




liCSXJifi.1 TmSf, 18fi5. 189 



'Ki^Hogg* Oo. w. Boekter * Sbait taiiUga. 

L % • 

^ ■ .l il t J i m 



Stikgg & Ob: taoi»dL^« ivle Against; <Jhreen B. llayo^ Sheriff 
ef Led^Gdimty;, te s&ow fMM irl^. 1^® shorqld not* pay over the 
ilioney Que on said fi. fa^ Tlj/isjp showed {br^MQ^e tikh fbragc^ 
ng stete of ft^ts; tod fSurth^r^ ^Vtcii6 jfia irat sabjeot t0 role 
IB Mnsaog^ Ooonly. The C<Mtft refiised to grant the^ndt 
abselotey aAd' thi» d^cbion 19 asnghed as errors Both oaAs 
mite 6eikrd tegeiher in th^ Snpt^^ Ctmn* 

Jomrsofr $ ^ATtSRSoS^ for phuntiSs in ernnr. . 

• 9f fio^T^^fe^d&fendants'jn error. * 

^fig^tke <7otfrf.«— BBirNnra/ J. d^ering the opinioju 



r • 



in .the in^ol Oiese tifo'eaisesy the sde qnestioi^^iSy whetter 
i^e jOoart beloW ]6^right in refusing to dismiss the iil€g^ij 
proceeding: . */ 

The i^^grottnd asug^ed in the illegality proooediBg iraa, 
lifat &e jirigiBent hiid Iferome don^^ . ' 

• The A^ of }fi^2f ooinmonly c^lled'the Dormant Ji^/igokAst 
Aot.. <iedare0L that ^all jnd^^ent^^' ^fon which no exeentioik 
diau1)e sued eat, or whieh •ezecjition, if |aed ont, no rqtom 
Aall l>&.m«4^by the proper officer for executing and returning 
the same^ within, seven years from the date of the judgments 
8hal>bd y(»d and of no effoct/' 

«In this case, the judgment liras^obtained in 1888. Li the 
sf^pe yeaa^y or early^in^the next, ajE./a« was issded from the 
jndgmenti In 1B89 i3mji,fy. was levied; and soon afker^ 
waMs, in the s^oft jf^ary the property levi^ on was sold. AU 
this was entered, by tj^ Sheriff, on the/, fa. • 
' '^.Ihe^^ of.Kovem]^, 184P» a ca* ta. wa^ issued frovi the 
Judgment. On the Jdl of Novesn^ber* 1849,* Short, one of the 
defendbnta^fM^ai^rested under the 30a. t^i^and he gure ben4 
f^triB^appMrnnce V> take the benefit gf the Sohest l^dbtor's 

AH this was eslfred w jdi^ ea. ta.1>y thd* Sheiks deqpoly^ 



•16 wpsmB qwfBSe « atiw^ , 

*ii» 1854t Mfl9^ ^lK> iD^^lm JM0tiie1ft6 AAilT of LbMf 
ftred the prbper^ thtuil^Ti^ On for 6^e> aiMl ta^verent IiM 
fi%m B^Bbg ike pi^per^, Bikart. i^terpoNd the «(Abyit oTSb^ 
•gIbKty; to.duftni8s*'W&i<dv.11ie*)B^^ Tke 

•SHMrV Jpraperly'retimiei ms aflUavit * 

nffidayit ifas put in, had not heooine 4<>nnant; for it'^pean, 
firety that within Itas ihan two years firom flto^Bl)) q^^M^ndg- 
m^ all exeontiion wto^MBid ont.firom the jndgkne^t, i^ iprag 
lyvied oi^ prope r ty ^ti^ defendaate orif one of tbekn^'IISal 
thia property was sold hy the Sherifi^ and ttlut*an ^try ofhia 
to^ aai tfalo wad timkhf 4nin ^n^e^f^ SWtadly, ilia* 

llMiN^ W tto inwrtal of M ^neh aseeii^V^*^^**'^^^^ 
entry and the next foHoWbj^ ^ntry«-tb^ hi^gM ikertal b#* 
tMto any MrOiiicli et^afieik Miig Aif bAireAi die>%y ff ar- 
rest ^ the eoMy whiek Iras;d^te4' Tth Ifov^i^H^^'^ldCS^ aM 
iiiat elite entfey of fte)er)ii eii the^ /i< bjrtiO^Di^^'wlfiA 
tM dated iii Sepfceinben, iMT, anltlml-bdng lofii;!^ s^t^ 
^Mtta , ; . • ^ • / • 

{1.3 Soitappe^ that the jadgeoent hal nA.boooSio ^^ 
Bam* 

llie next gnmnd assi^ed/or the illegality proeeed!ftg,*wai^ 
OtttlhejL^a. Wtfsaiktfite^^.* *• • • 

It is «rae^ th%t m sndi a e&ee as 4&»irild, that of ,aJost jL /i* 
^^4he law, as held by this OonM^ respires thS sohs^fUp to hr 
Mian atbafi.fiL bat an estaMbhad e(^o{Woi4|^l jt^^ 
(11 <?a. 642.)» . / • • 

am tre re|^ Ihii ^./^ as btettded t» W aa;'imribai(il 
Mf^y; P6r al^bngh it ii» ealbJ. in iosi»o< dbf pi^fliftmlligt 
kttieeas6, mt iil»Mji.>li. and: allhoi^hiti^diteil oPa % 
MHmpi^nt to Ae^by'of tlie datef of tiie (ate loeti^Ml i«'ii|g|N|l 
by the persom iriio .was then Clerk, yb^ it is^ qpon its fiMO^ Hit 
ift alsst, beeiktae*it dba say— If we eooMMial tot, m t^fbrs 
«is have commmded you^'* ^. aili tla>i6 iik»Mfr" 







of the CMirr or'.tli# sttnlt of |pdi^ aa Mi^ irb: of fa ctaSer a|^ 
tlM^ Qmrt in the. fioHoiPUig vovde^^^ It enpea^ to the Cowl 
Ihftt a^ /a. of .whidi' the alnivO and foiregobg ia a oopj aii# 

iB|a6 18 be^nd the oontrol of the plamtiffii: vhereDpon^ it il 
eidered by the Coiurt, tBai thp Clerh do iasne anaUof fi^fiu 
ia lieu' of 8ud kat oligmal/.' aaS mdi aii*aet or order ef the 
CquHj ira8,the rerj ^rt of 0I|^ whiclkit*woiild have heen ne* 
cesaary to use for the establishment ofa copy of the lost/. /n. 
if the inten^on had been to estajblish soch a copy. 

Seasides, the*order earries np^ its face marks iSf a design to 
titablish a oopy. Why else is Ae*JL fa. that is to be issned 
ordered to stand in lieu of the lost original ? An a/urs staAdI 
iq lien of nothing ; it i% ijtself, an originiJ^ 

[2.} It appears, then, to thib Ooort, that the fi.^ fa. was in^- 
tended to be an established eop/and fiot to aUai.^ ' « 

And tHMsSSteriHg it ii^ an established oopy^ therdefeets fboal 
it do- not render It. void — they are snch as are amendable. 
'^.fio,' wilere tk fieri facia$ is improperly teeted, or madeiretmn* 
ai^le. m fi particular^ instead of a general return day, or ,on a 
day ont of term, or in the common pleas ^before as,' inateaA 
of ^ onr Jnstieee at JfeetfiineUrj i^iitey \q amended by the 
award of execution op' the roll." (2 TUde Fraetiee.) 

The third gro^d talfea ikt the amdaTit of iUegalitf was, thai 
Ae levy which Mayo^ the Bheriff» wa84i;boat to^ezectte by sale^ 
wa^one' whiclihad beeii dismissed by the order of th» Codrt. 

{6.] And ihis was a good gronnd. The fi. fa. does not av? 
thdrize a Sheriff to snell the defendut's property, witbout haT« 
i^g levied on it. {OM*i Dig. 50ff, 610.) 
* tiiis ground being sufficient to support the illegrii^>|iro- 
eeeding,.the Court was right in over-ruling the motion to dia- 
Buas th&t proceeding, 
*' 4^ this disposes of the first of the two cases. 

Ill ihe second case, the only question which it is'necesmy 
to decide, is whether Biayo, the Sheriff of Lee County, is sdbh 
jectW^ nlediailuscogee Cou^tyv-inthe Siq>erior OoaK 



^dlo^ 4 Ck>. M.Baolder 4 Sboit tndMayo. 

» * ^ * : ' ■ ' ■ ' . ■ ^' ■ ' 

«f Muscogee Conntj^-for not eieqoling the eteeatkm firom.^ 
jadgment ^foresaid, rend^ed by that Court ' 

A rule agaiQSt*the8he^ is- either a 'Criminal proceedjiigT- 
1^ proceeding in which the StKte is plaixitiff, or it is a civil pro- 
oee^g — B proceeding at the instance of a privUe person— • 
^bx>oeeding which is a mere civil suit. {Penai God% Div. ^5, 
aec.l. Jud.Ae(;ofVl%%8ee\s^yb&.) : 

K it be a- criminal proceedibg, it ifitst be taken in the coun- 
ty in which the crimb was comn^tted. Sa' says- the Constitu«> 
tion, Art. 8. 

In this case the crime, if ajiy, had to be committed ia the 
County of L^. That was the only county in which the Sher- 
iff of that county could, as Sheriff, act or figdl to act, under die 

i£y therefore, the n^e be a criminij proceeding, Lee was tip 
county in which to take it * * * . . 

If, on the contgrary, th& rfde is a civil proceeding — a suit 
then. also the rule, in this case, is to be taken in the County of 
Lee; for that is the county of the resid^oe of the Sheriff, and 
he would be the defendant in the suit ; and by the Confttitulien, 
all civil cases are to be tried in the county in whidi th^ddbnd- 
snt besides. {Art. 8.) 

[4. j Either way, th&rqfore, the Sl^eriff.was not, in this ease, 
to be ruled in the Superior Court of Muscogee County, altheuj^ 
tile Ji. fa. was the process o^ that Cou]%. , 

This is the resdt which we get from the Constitution and 
frok Statutes ; and this we understand to be si^nctioneSl by*tiie 
long-continued and unbroken usage of the Superior Courts^ 
If it is Ii^w, it will have to l>e lo^e. 

So wecJso affirm 'the judgment of the Court below in tfajs 
8ec<md case. / . 



• • 









• • 



%r«. TVluY "V^illLrAttfl^ lldrfr, &c# delef&iftnt in error. 

•p.]*Tb« p^ *of lS2d 'Ho ,prefent the fraudulent eAftyrc«iiieiit •t d«nlMMt 
Judgments/' does ftot apply to iudgments in favor of the Central Bank. 

• •• • .. • 

■, . • •• * ♦ • • , 

Motipp, ^ Mudcogee Siip^or^Coniil;. ^eddei.hy J«dge 
WqiilR][LL^ JiUe J^joumed lerm, 18i4. • ! • 

, . TKe*^Ie quesCi^n in this oase wa^, whether a.judgiflent and 
jL^.in/aYOt ot the, Cetit^-al JJa^ik of (^eorgia.hekame dormant 
^ter Sf ve|] year9;twithiut an eiQj^y i& iN:6per offixser. ^ The 
^oiprt below A^ tiiat^th^B.-iu^ginent^ was dormant. This decis- 
Ai is th^ &nl J ien:yr assigned, f . « 

BeWjJ^k, for4|>laintkSi 






.jf««Wii^UMS,{DrjdefeQdant«n error. 



m err«r. g^ 



♦. • 



^ESj J» dMi?eri^ the 9p»mon. 



^.1 There is pq^^peeiivl^y^yision in the«^ct o^ 18^, "to 

:jir^6nt*tfa£» fradj^HitV^^^^F®^^. of^nAant ji^^gmenta," 

|jhi<3i Jjp^dji^^ Ju^|^^4l8 in 4vbr t>^ the C^alciil Bal^» f^mi 

4jifd olata a^ticiEteiiUtF- tke foi))t ,nlf»de.iii «liu# «ay d^ip^ds, 

lihenTKipon the questioB, ^iSe^er o^j^ixot the lootdne of nukiAn 

* Tkat it, Jbea j^q^ ^ h^» ji|st 4^c;de^ yi fte «yse ji^ fta- 
koHej admW i^. Th$ Cenitxdl Bank^^Jiii to that fre i^fer for 

We are, therefore, of the opinrOU^thiitltljii/fevcl •i|jp4ii^ 
deciding t^at theT /{. fa, in this ca«e should oequash^; a\id 

» • . « ' • 

TOL. XTII-»25 



m, T ■ ■■*' * — kj — # i *". *'' — : ^^-1 -V '-''-; — I ■ ■, ■■■ ,! ■ Ji a 



T 









* 



^] A pryicipfd in the teeond d^vee, ntaj bb tried befnce tbe pri^i|»kl yi tht 




*i^ext prqpodaded! Ue replfed tfa^t h^^iad^not . 9e Was ^e«^ t<y ai 
discharged for cause — the Statute requinDg ^ re^denje dT sfec maoths* to 
(lualiQc^a Juror.to sit in'a cq^ainal ectf e. Not complaint was ifidd^ ut the 
tilne thut the, Court mistook tllp Juror's &nswpr : rior wts any aU?mpt Aade 
to 8ho*v' the Juror ^cotip^Ciett : Befi, tliat Counsel, by their sijence and fail- 
' ure4o make 'suc^i effort, mmt^ b€M)psi()j^d as. facing acqwesc^ in thb 
*QeB^tmivtion put by the Gourt^upcm the JurorlS answ^^ * ^ '« « 

[).] An indictment for the mufder of )ti\ offioer need pot (H^^rge t^atf t le ^r- 
son Jdlled vas An officer : but it will be st^ci^nt if it contain the general 
re(fuisites of aifindictmenffof murder. * _* 

[4.] Although the wafrant unden which an arrest la ihaflebe not strictly la w- 
*ftil' or if it express not the 'cause p&iticularly enoiigU( ye^ if the mal^ lie 
iT^thin th» jurisdiction of the Justice wh»i8pue4 it^Che killing oftlto #fiH;er 
<• in execution o( sugL wair&nt is mnrder^ 

[j>4 It is jM)t fiVN>r )tt the Court toUnut to give m ehai|ge*^*tbe Jury^jfvCions 
of tbe Penal ComAc, whlcu hare no appUcaf on,to the issue Submitted, utmiii 
the pleadings and proof. * , *' _ 

[fc.J Misdirection b^ the Court, xt^vm ^*a68traot4)rM^le of law, not 4»^t- 
tMniflg to*the issue, is irt>*grouhd fc*" a ne^^ria^ • • * fc * 

Ti] 'If an J- Sficriff; imdei' Sheaiff or c^cr oft<yBr who hftth ei^torfi^ of pH- 
' .C^ yt ^|iff i^ doitfg iiik Wy» it^ iwircler in hi& VhtfkiUstMm, IdlkiMlM 
* ^ivm was mot e^ fDiwer Bkaly^ l^l^riift theoi. '# . 

^\0i^ ^HbiiMirs •f jUstie^.V^hile in tl^^ox^cuOoQ of Qieir omees. jre Vipl^ti^ ^ 
peculiar pr^l^tion of thedaw — ^a prdlectidh feui))ied in irisoom — and V^lb- 
O^t which,' the^ public tranquility- catinA Ife igaintained, j^vkte prin^i^li^' 
.Wcufe^, nkr'6ftep(ftrs «f anv Und 1^ Ai&dte ametadt)le/D juAee. 

\ • ♦ .*'.'*♦"• • • • ' • 



I^Mcl Wri^4ifl priaoipal in ike ^dl^^, «Mi Jiok 9: 
Nr Aa wAfAsr «{ Mafk IMikiBU. The lii^n^ttKitB 8#mre% 



-p ■ * ■ 11 ' " J * ' . * ■ ^ 'g^ ■ ^' ' * * ' ^ '* * * 
; ' ' ■ * ■ ^ » ^* * «— ' : "w^ 

]n afl^cUt4ie,iiiiM^ Bis ttimf&M ;, which l^g tf oiM'trAl 
^Md'if fie ived ft^lhi^ St4M«|M]l» 

l^*i^)^A jdfcf for Att^e. me €ii»t 










' B^h^lflmif^*!^ tttaiff^'B' Qqyna^l oumA -to i<HIHnw 
>Ae imrf dip«oooaijenlti(m of tb'e^w) j it#> # <H i W <n<<k 




. ' X Mt. «rit|>iiMkiM ivwj|p[i*>wiil i4kai«^«iMl^ 



\ 



— ■ w ♦ — I = -T •: • • fc * — 

•Boyd w'^'Ste Sfaie/ • ' • ,• 



j^ ^ 




9liea^ch^h^tik 



I^oded } 9ind now t£e strolce is CQn8ideijp*d,a§ tonatrucftiv^^Agl. 

iW^ ^M^ 9 atAvJ^^T; t: 7fifinf(lUk^MJ, t BJle, 01^ 4&.* 
Jlac/;%?i«^ i. ^ c. 20,* 3^/) Th^ge aatlifOlitiea Wii ' bp0^« <nnb* 
teii,- vaiAey^iMj support the <|9«fvifie jbi 4)ifii|edi^ an^ 
4^-c«MlMMre^ai{(tettt^dpei5l.\» -• -* • * , - 

^ ^ ^te ^»^J«i»r, 3ldw^rd*R KfV^ fei.^^f . '^ * ; . 

^ii(^; ^ij^tftrtftided *to hkn, m cft^r to/'t«|f bid eopipttmiBr. 
# i| <rW g «nn^d |iiei9^fm tfccf ao^^atnre, ^-^ij^tf^iipoiMtri- 

neict pr^pdBoded. ^e r.e|)^ek t^ b^ bMiwi0<i;««AiB0M|adl» 
gl0^iAttff^ |(i^|]wkf^.%>i^ jiovnflfiiif iB^ 

4lj^)A# Jiidg^t4!#i|g(m()^^ KieflT^ ;«#h^«i^;* 1^ bA|4* 
^iiit^d*to;8^4;hat Wl/^i^Qt lived in the County* of Sloa- 
f^gee sif |boi^ths> j^ tqit' hp ]i^*]^r^£<]|^^ 90* Ioq^' ift^^^ 
Gil^l/<70kunk^ •'' "'• ''•■'• • * - ^ 
Sho^mgl J;liib^were *saf ^duit f^as |be duty of the 4|risotker'fl 



/ 



, * *, ^ »-* — — ■ ■ 

• JJ^dw. TbeStrfte.* • 



f 



Jiilww^ uH.d^r •a^ifli3take*a8 to tlje Juror's anqwei;^ By t^i^ 
sileDce 4\ey laust bft- Md'tojhUv^ icrfuieisced in^ the uideJ- 
atVitUng.ofJadg^ GfUV^TaliD. ' Counsel dr(f under obligation 
to the^ Court an4»to, tbe ^co^nftrt,* as welj as^tp their clfente. 
And, ti^,^ must, Tie ^«ired to^keep knd ebsef ve, if gopd ^^Ith^ 
tl)e iomxxhj: as well •ae t]Je latter.. , * ■ . *. \ f 

But'did^lhe. Qourt misunderstand t}ie i;6s^oji8e of ^fr. Kelly ^ 
W^t^iqt n^: -there is nob^any Necessary. connecti(^ii'*bAweeii 
tbe first a)i« se^nd queationsland the fii*^. and ^^ond a(]»; 
^\rqrs. TCe JuiyDrj it AYiU'be' bptne in nripd^ ;s jn^Jie ^c^urt- 
Hbuse (^^iiscogee ii[Qupty^w}^r^.the 'trial i^ |a%>gj:e9ging ;. ^d . 
^^ the'JurjCjr ejatfed that" he had i^pt HVed A^jre-^ix montli%* 
he must b'e c^miderSd as meaning in tlia^ coi^w^/wWe tfc^*" 
tri^ ^a^ iifwi. * Be^ii^^ it • doe3 not ;It)pear, nor, was any ^ 
t^^;i}aie^ 'tc^ UMLke^t-appQtu^^ t^at th^ JSirac thiie xey^^tiAjtm 
i^BlyqujJjfi^a.lo qpjve.^ The ifallore fb ,jjiak^,»py^^ffpjt to 
fl^w hj^fompbJiency, is-ih^ Wpsj; evidence, that if izMMle/itj 
fi^i^kaye, proved.iulguccesdful. * We, afe-callea- upte* tliyre-s 
^|l« to^ronpupce th^md^Jnt of tjio Court below eijroneaufl, 

(frjjitting 8^ii© .oiJeWitoex^gJ^Wal)^^ whVw^.nat 

fiorpii tp 6we t^er^^^henjis^^^or any moti^ paaie to 4o» s«; 
i^ ^Ch^ heit error s^jsigitjd ia, iji suffering the gpaci^.v^r- 
^^^'ttf'^b^,.(|fe!ac(/t«Llh«.' Jnr\\* ^his prooess^was^iasyM^ift chie 
" fcf; J^ j. i]^?' propel oflScer,* and^ placed intlfe 'htodj, of 
JW^inAftn, the deputy -.Sjlreiiff^ by the Magistrate, to . bo 
^^f^i.., •BeiAjg rfigi4ar x^f^m i^ f{^,'we se^ i)o rea^u y^y 
it* should have been* wi^hi^Id.^ *But It i^ c6i)3tead%d.that ijm 
MhtJI^Jte 4piI^ thete\beiag.iiQ ;B.ileg^\i^ istikh 'inedictmei^t 
that tbe 4^^^d was^ officey aotrag«in tlie 4i^^^ of*' W 
<)^'.f^ii Jm^U4*^ ^^, ^ipbjel^n applios^.^ot^ oply tq the 
M<H^|>»i|ra^ Wf Ui all ^.(^i^kUkony w^uc^ ^^ ^^ ^ta,b]i^ 
ijMtjw^l- dkfv^dbq^ef tn6t $}eceiSed/ . We kilow-o^ ho^d^ik^ 

Ij^tr. ;thi6g^l^ Jikja. av ^tfter iB|r^enl, ^Awprt 
^^M/f^^^ii^^ But.ffeiiUer 

% i^Mjtoj^^ scit^oH^^^g^ tU«. recorei. 





m tfsf^igmwm^ w'it$mfa^ 



j|t>yd '«#. f ke &{^. 



I 1 1 



lie, ooieii^iliQtU;^, li ^^^ pyn o M o sM r^ to ^ exit l^S3%rf 4a 

40r'." . Aii4 fprtlm] — ^^ thati if oKnoq *qf 4b1i!e ^p^ia 

mje^M %ravr«Bab9:'' A^cbhe se(erir> dfiicii^i^ 

^^iftVloe; W a (mrMljr tP t^ legal liiM^^i^^ * |i wdi beJMttd 
«• ^rt^lASlM' iii.t^ Atfi y o\dm^x)t Voice' t Meporti.* * • ' 
'V^^iSbQ kif^'B oiiim^d> ^1 the J^i^*j6f Sb^U^ ivwre 

recordis V fll>Bvi'ctiijJ ^K^dlu^ tliigr tgrt tati ii i '"V|i 
l»eafa" Goi^^l^flAittd i%oq ^^iM^apcfcl^ wsli«<^*a^ n^ pi^ tka 
j^[4«iiMr0'^ the'^Bg; co^ t)to^Wtc!t wa? r^^HB y* 

4lAit^ii 8^^^^ in the <Mfe hdfoid th^, dief^'^^e^^.iAjlia 
qp^ittl bk^otn^i^t^oniaKH tiQgp iiAikc»s io^ W ^'vjn^ ^* ^ (la 
<]^« f£m«I^ne; bM»gen^iiidfitoK^lit,*iMli SMl.a^pa^ 

he Apt Vy)rfmaa^6f|ny|<rc!ceJteiit iatiiee, jot di^fiwiiiWieli 
s )goQfi% fof the law pcp|Mi^ mrifee/'t *Jwiffvi&tt% iri«r''gl|M 
acMK)od^Bigl y, i^ JWot^ * -* 

. I>iB^tii^t<WfiUli^Mli»ej^ 
^He$I in tBb dallty 80 iahiui4&hiiy^ %; • 

. t^.] 'It 18 vig^ H 4ri^ ikM^^Hi(kl^r fnmamji mUft^.^ 
l^M.tiego BI^riQfto tte^|iP^,*8«^ tlM^oit 
ilgmK me consent ei tne wBt^Btmmm* Tttive ym^^ vh 



y 



t^bie. (lOrimriia,^!., lS»«,-a)9ti,Q:^aU,-n^. I^B/^ 

t^Mfr wi1t^'^»e> fa»T» cOt^Etfnsd^ (b^ bw aft aN^c^ ,U 
#iiAii^eMuiri>,.idUr tkAt T^ relates )o WivAfn IH C(^ 
Mlitorfte, .if is alm;^ Blcesquf •*« sA firttfte, ^prp6 «r «f- 
AMtev )iat MCeab wsi^nift. JiMjeed, soiAa <^ t&Q <H«eq.<^ 
toHhe «xt^nt •£ n»U}Ul^g Ul»t*CMei^il|f oc^ in idfi^' it 
iMM ^ j(iphiient' M. I^ e^il theV^ >»&«&- IMir 1^ ' 
<|A[i« •fwliiiehtfaep{iq1]r.t(kbe«>7wfcd.iBa<MBUift -^ SfMc 

* {b liKthOex's c^, to AidiJ bave Afbrd a(:fm«d^ it 
i(M' r£^is^ aaoDgat Atl^er* tiling^ thkt if -tlierj ba efm- )q 
»wS|£Dg process, 9r in \he misftkl* Df«ilf .pri^Jbp^ftit a?«llt^, 
'tq|M«^il gfferi> be aTalb* inr4k« e^ebution'^rear, tfa^ olE^^r 
ll(kU*not haTe*tbe-AVant&g^ of loc^ ctnTi* bat lUt ^ ie- 
lldieK •< tljffi (Mcer, whea he cornea to qftlre ^n arrat in the 
■Ltg 8 name, ist'^nrftbr. '1 - ' ' , - • ^ 

WIB pri&«)ue 48^'U^7 eni^^fjnrtM ; ," And«ttfio<^ tb^ war- 
tknft offbeiftfetitie'be'Bot in Btftcfo^ Ikviiil, ^ if it diprna 
not |be cause ppHtentail^ iAacW^ ; ^nA, if the matW be '•y^- 
taHRiB j^idcKAim ffi -JWtioe oftlK ^eftce, th^ (illing of tbe dt- 
fwt V e»(]|Btf«fl df nK^ irahiM, ismqrder; J&ri|i;staA eaM 
'^ «Am cfaiS«t-tiifl(iiite tbe .valicltt^ oF Jhe it^rritt, -if it jifr 

.irtbjs Ve tje tiCv, and who vpl.d^n^t (ft 

d^tws ^ ^iftereDt'i^^ It voold pot jil j 
-nrty olQ,eer in(h« Bpiil.' itn^ercou1db< 

difffil^JjMeifi^t.ft ttwH- fAiJ, th£ Btriot' 

mtry pf«ocft|jlh^tMhtt«irliriafd». 
' ksnt waul^X to »*»>, lC&«» nVk w p, .w wi|M*fcr a *» 
- yaiafl of y i j ti H^l, y.*H.yart of 4e pwo»». 4Hfe^,k^ 

i4»TidettNbt«n^H!ia«l,1t»iritli1]nivr«odd.)t»Te«^«d tbe 



Ejection.* -!^/orti^rf■i8^e tnthdWiWil oflegal- prtM r^ *> 

xor. . ; ,' / .^ v, -'' ■. • ■*' •■■ • • ■ ' 

,'[o^ teff next co(ppl(5ifl; Tfl tIJihc c^iafge'of tjia^iiP*. ;™8 
ffdnor, Judge OffAVFoHD/in'structed the Xul^, ".test; iff*io 
the d?finittei\*o^"ilnftd'w; aJid tBe'n| as"id-.*Bat ponSlitutef tje 
(feDee'i}f'pTSnoi[&l'iii%e'9ea0ild*^egreei' Asd Bocondlf, aUt 
.thpy'npiatfetermiiie. whetiw a'tmrrder Kgl-bSerftftiBBrJfteff; 
fcndj^^bey Sfepnld 60 fed, ^Hcn ascAl^n.frijm the e'videi»?,lf 
lf|e d^Adaot w)i8:^esrfht ;'. and if ]fres!ent,iS4 hi aid and abttbi 
1^^^ejjfetrfltrdi»of tbfi ^ime ? " 'Ahiif tbey sbtfnid'-Kt -.Ad, 
JlittD thej|Wt)ifld "rfetnrtt a general ^ei'dictSf jJ^J- BntV 
th^teatimon^ should'show that tR'e ail^gationaln t1|pMI?of m- 
4&!lime^ti Tefe 'ad^rse^ thenth«y eliouMrebder a^MUrt fitnvt 
gBilt^,_ t}Ki4 b^g no'slicb 'oSeacf^as pVtacipal ia >be secdpd 
S^g)!^, ki fiKd^augJtt^, katHtn to.thS lavs o^jSe&gia. ' * 
' ^DhiV ifi tb'e «&dt^ of tbe.cW^^ ^:4k« efcois 'a8E^«d 
nfoprii^W— * •' / •• ', ,■* •». ■ • ,• A, 

'■ tei. in omitting'to inatruet tie. Jht^ in ;^ the. gradtt of 
homicide cmtahed ifi Ehe Penal tloie.' *•'• *, ' * .% 

, ^. ]jitii<^iig4he7iv/aBtoihedefiritiQ,()f miKjJerdiH;; 



COLUJfBUS, JANUARY TERM, 1855. 201 



B#jrd vs. The State. 



and he adTised them, if they wished to avoid an arrest, to keep 
on thrft side of 'the river. It is fairly inferable, that this visit 
was made to induce them to do so. They promised Robinson 
to keep out of the wajr, unless they concluded to come over 
and give themselves up or compromise with the prosecutrix. 
But contrary to this friendly warning on the part of the officer 
and promise on their part, they crossed the river at early night- 
fill. They were seen in th^ City* of Columbus and conversed 
with by sundry persons, and avowed their determination to die 
tather than be taken. They passed the deceased in the street, 
but being partially disguised, supposed that he did not recog- 
nize them. They had been observed, however, apd Robinson 
summoned a friend or two to his assistance, remarking, " that 
Boyd and Wright had come bdck, and he would be compelled 
to arrest them." ^ They were standing near a grocery called 
^JPleasant Sour .'" (Heaven save the mark !) Robinson walked 
Qp to them saying, "you are my prisoners — I have a warrant 
for both of you." And as soon as deceased laid his hand on 
Hfright, he (Wright) jerked a pistol from Ws right side, and 
shot Robinson ; ^nd while be was fUling, Boyd, who was a 
few paces off, also fired at him. And this constitutes the 
whole proof in the case. And there is not one mitigating cir- 
enmstance to change its type or coloring. 

We ask, what had the law of manslaughter to do with this 
cabe ? What a mockery and farce for the presiding Judge to 
have instructed tlie Jury as to involuntary manslaughter in the 
commission of an unlawful act or a lawful act, without due de- 
gree of caution and circumspection ! And yet, he is charged 
with having committed " manifest error" in omitting to do this. 
He would have been guilty of manifest folly if he had. He is 
required to instruct the Jury as to the law of the case, which 
is submitted to them. And this he did by defining murder, 
and giving them in charge the law as to principals in the 
second degree. It is right and proper for the Court to tell 
ihe Jury, if such and such things have been proven, that' the 
hw is so and so. Generalities, in charging, is worse than usc- 

TOL. X^I-26 



202 SUPREME COURT OF GEORGIA. 



fc.1 ii 



Bojd va. The State. 



less. Instead of assisting, it but too often misleads the Jwrj^ 
*^«ad from the Akoran or the Talmud, but notfrom a law book 
which does not apply to the particular case made by the plead- 
ings and proof, and which the Jury has to try. The charge, 
in this case, was succinct, but clear and pertinent. There was 
no dispute as to thb evidence. The credit to be given t(^ the 
witnesses the Court very properly left to the Jury. K they 
believed the testimony, they were bound to convict the priso- 
ner of the crime for which he waS indicted. K the proof was 
not trustworthy, an acquittal should have followed ; and so the 
Court charged the Jury. 

[7.] In tjie leading case of Mackalley, to which I have sev- 
eral times before alluded, the whole bench, nuUo contradicentey 
resolved, Chief Justice Coke being their mouth-piece, ^^ that if 
any Sheriff, under Sheriff, Sergeant or officer who hath execu- 
tion of process be slain in doing his duty, it is murder in him 
who kills him J although there weire not any Conner malice be- 
twixt them ; for the execution of process is the life of the law; 
and, therefore, he who kilb him shall lose his life ; for that 
offence is contra potestatem regis et legis; and, therefore, in 
such case, there needs not any inquiry of malice.*' 

As to the abstract proposition, of whether or not there can 
be a principal in the second degree in manslaughter, the Court 
may have been mistaken. We are inclined to think the Court 
was. There cannot, it is true, be accessories before the fact 
in manslaughter. We see no reason why there may not be at 
the fact And principal in the second degree is but another 
name for accessories at the fact. One thing is certain — ^Wright 
may have been convicted of murder, as he has been, and Boyd 
of manslaughter. 

Are we coivtrained, then, by the New Trial Act, to reverse 
^ judgment and r^and this cause for a re-hearing ? It l^ia 
no misdirection OfiairM the prisoner — and the words of the 
Statute require that it should, before the party can claim any 
benefit unddr the law. It might just as well be said that a 
misdirection as to the law of arson was against the accused.. 
The same Act requires, that if Counsel request the Court, in 



COLFMBUS, JANUARY TERM, 1855. 208 

Boyd Of, The State. 

irritiBg, to give a legal cnarge, and lie refuses to do it in the 
language required — that a new trial shall be granted. Snp- 
poae that in this case the Court had been asked, in writing, 
*to charge the Jury, that to constitute burglary j there must be 
both a breaking and entering,, &c., and the Court had either 
decked or substituted a charge of its own, which was wrong, 
stating that the mere entering, &c. was su£Scient, would we 
have sent the case back on that account ? surely not. Here 
&e pleadings, it is true, put in issue the crime of manslaughter ; 
for the indictment being for murder, put in issue not only that 
offence, but every lowe/ grade of homicide also, just as though 
there were a separate cotmt for each. But the evidence intro- 
duced going io Vhe crime of murder only, all the minor grades 
of homaeidn, although contained in th^ true bill, were, neverthe- 
^88, withdrawn or dropped, for want of proof in the issue 
finally sobmifted to the Jury. An prror in the charge, then, 
as to one of these minor offences, was necessarily an abstraction. 

And fhis may be illuMrated by a reference to the rules of 
jdeading in dvU cases. An action of assumpsit is brought^ in 
whi(4l ttre two /sounts— one on a promissory note, the other on 
an open account. No groof is offered under ^he formet as to 
denote; still, the Judge, in his chargcto the Jury, trips in his 
instmotions as io the law of promissory notes ; still, tUe verdict 
of the Jury is based upon die second count only, and is right. 
Can the misdirection of the Court upon the law, as applicable 
to the first count, be ma8e the ground of a new trial ? surely 
not* For notwithstanding the promissory note was put in issue 
by the dedaration, yet no proofhaving been offered respecting 
it, it is necess&rily withdrawA from the consideration of the 
Jury. And this is the defendant's case. Had there been a 
scintilla of proof to reduce the offence from unrder to man- 
slaughter, he would have been endtled to a new. trial. We 
would no^have allowed ourselves to have 8|peculated as to its 
weight* 

And this disposes of all the grounds taken in the assign- 
ment of errors. 

[8.] Poor Robinson, with his last expiring breath, said to 



204 SUPREME COURT OF. GEOBGIA. 

Terry ti. The Stale. 

Ilis mother — " it was hard." Aod it would be hard iodeed, if 
while this /oung man, in the mild but m^nlj discharge of his 
duty, is shot down like a dog, hia murder ahonld go unavenged 
by that law whose minister Jje waa. Ministers of joBtice, while' 
in the execution'of their offices, are under the peculiar protec- 
tion of the law — a protection founded in wisdom and in ev^ 
principle of political equity ; for without it the public Iranqml- 
itj cannot possibly bo maintained or puvate property secured ; 
nor, in the ordinary course of tilings, will offenders of any kind 
be amenable to Justice. 



No. 39. — J^ME3 L. TerrV, plaintiff in error, vt. The State 
OE Georqia, defendant in error.' • 

fl.] HotirithBUndiDg tlie Coort maj chugs ibe Jarj gtaenit^, aa.to thet«> 
rious grades bf homicide ; still, it is the right of the defeadvit to K^k ip*. 
dfic iiutructioDs as to auj- particular point, provided theie U proof to wm- 
raatit.* • . , 

[2.] Dndcj the New Trial Act of 1853-4, the defendant is not called upon 'to 
ghow, afSrmatirely, that injury has resulted from the refusal of the Court 
to ^TS a legal charge aa requested; the SMtaU afadmas that damage II 
doiie, and will lisleu to no allegation U> tlis.coi}trBrf . It makei the rcfonl 
' to give a legal charge, when reqoested, fiii^the griuiting a nei^ trial, con- 
vertible terms. 

Indictment for murder, in Muscogee Superior Court. Tried 
before Judge Wobkill, Jons Adjourned Term* 1854. 

' in this case found a verdict for "rnvolnntary man- 
I the commission of an unlawful Act." A motion 
ir a new trial, and the refusal to grant the role 
itjy error assigned in this Court, 
ground Cor a new trial was — 
se the Court erred in charging, that if the prisoner, 
with malice aforethought, eiUier express or implied, aleir-the 



OOLn&iBUS, JANUARY O^RM, 1855. 206 

Terry w. The Sute. 

deceased, he was guilty of mmrder. The Court certified, jas to 
this ground, that he had previously fully and carefully ex- 
plained to the Jury every grade, of homicide. 

2. That the Court erred in charging the Jury, that they 
should find the prisoner guilty in several supposed sta^ of 
facts — ^in no one of which was the Jury ipstruoted, that 
in order to find the defendant guilty, it was necessary it 
should appear thaf the offence was committed prior to the find- 
ing of the bill, and within the County of Muscogee. 

3. Error in charging, that if deceased assaulted or attempted 
to assault or commit a serious personal injury on the prisoner, 
and the pri&oner, in the sudden heat of passion, thereupon slew 
the deceased, then the prisoner was guilty of voluntary man- 
slaughter. 

4. In refusing to charge as requested, as follows: That- if 
the deceased and prisoner alighted with a common intent to 
fight, and prisoner killed the deceased with a knife ; yet, if 
when prisoner drew his knife, he apprized the deceased of it, 
and abandoning the intent to figj^t, did not advance on de- 
ceased, but threw himself on the defensive, and the deceased 
advanced upon the prisoner and struck him with a chunk or 
stick, before prisoner used his knifb, and they should believe 
that prisoner used the knife in defending himself against such 
blow, then he was not guilty of the crime of murder, with 
which he was charged. (The Court .certified that he refused 
to charge in these wordsy because the evidence did not show 
the facts to exist as alleged in the request.) 

5. Error in rejecting the evidence of one Motly, that 'Wil- 
son, one of State's. witnesses, declared to him on one occasion, 
^hat the prosecutor, Doles, owed'him some money, and if he 
did not pay him he would turn a Terry man ; and that ho 
knew more In favor of Terry than he did against him. (The 
Court certified that no foundation was laid for this impeach- 
ment.) 

6. The discovery of new evidence, viz : of Sarah J. Wind- 
ham — ^that she heard Mary Ferry, one of State's witnessm, say^ 



806 SUPRSMB COURT OF OEORCIEA. 

* 

Teny tw. The State. 

a few days before the trial, that the killing was a pture acei- 
dent, and prboner was obliged to do what he did. 

7. The newly discovered evidence of 3ilvana3 Prince, to 
prove circumstances going to impeach one of the witnesses of 
the State. 

The two last grounds were supported by affidavits. 

8. The mistake of three of the Jury as to the verdict ren- 
tiered — they supposing it was for "Involuniyury manslaughter 
in the commission of a lawful act, without due caution and dr- 
•cumspection. 

Tlids ground was sustained by the affidavits of the Jurors. 
The refusal to grant a rule nin is the error assigned.' 

Judge bENNiNG having been of GoiHisely did not preside m 
this case. 



Colquitt k Wellborn, for plaintiff in error. 

Sol. Qea'l Brown, for defendant in error. ] 

By the Court. — ^Lumpkin, J. delivering the opinion. 

[1.] In the progress of this trial the Court was requested| 
by Counsel for the prisoner, to charge the Jury, ^^ that if they 
believed that the deceased and prisoner alighted with a com- 
mon intent to fight, and that prisoner killed deceased with a 
knife ; yet, if, when prisoner drew his knife he appiiied the 
deceased of it, and abandoning the intent to fight, did not ad- 
▼ance on the deceased, but threw himself oit th0 defence, and 
the deceased advanced upon the prisoner and struck lum widi 
a chunk or stick, before the prisoner used his knif^; and they 
should further believe, that prisoner used the knife in defend- 
ing himself agiunst such blow, then he was not guilty of the 
crime of murder witii which he was charged.'* 

Tins charge tiie Court refused to give on two grounds — Istr 
Because it assumed a state of facts which did not exist ; and 



COLUMBUS, JANUARY TERM, 1865. 207 

Itarj vt. The State. 

2dly. Blcause he had charged the Jury ahready, as to the law, 
generally, regnlatiog the vanons grades of homicide. 

[2.] It is scarcely necessary^ we apprehend, to discuss the 
saflkiency of the last reason assigned by the Circuit Judge, 
fon refusing to give the charge requested. For notwithstand- 
ing he may, at the beginning of his charge, have instructed the 
Jury generally, upon murder, manslaughter and justifiable ho^ 
ndcide ; still, it was the right of the prisoner to ask a specifie 
charge upon the point to which the attention of the Court jiraa 
called, provided there was any prt>of in the record to warrant 
it. His Honor, Judge Cbawford, held that there was not; 
hence, it becomes necessary to refer to th'e evidence upon this 
point ; and the only difierence of opinion which could exist 
between Counsel and the Court* must have been as to one fact, 
namely : whether there was any proof that the defendant had 
abandoned his purpose to fight. And to ascertain this, we 
propose to refer to the testimony of a single witness only. 

Mr. John B. Bedding, the only person present with the par* 
ties when this rencontre took place, says, ^^ that about 2 o'clock, 
P. M. on 2d day of June, 1850, witness and- deceased were 
riding the road together. Prisoner came up in a buggy, behind, 
in a fa8*t trot, and as prisoner passed, deceased told prisoner 
^not to ride so close to them.'' Prisoner observed, " he be 
d— d if he did not drive over. him, if he wanted to.*' De- 
ceased replied, "You had better try it then." Prisoner re- 
peated what he had said before. Deceased then cursed pris- 
ener. Prisoner then asked deceased if he wanted a fuss ? He 
replied, that " he had as leave have one as not." Both dis- 
mounted — as prisoner got out of his Hbuggy he said, with an 
oath, that." he never, backed out of a fuss." They stripped^ 
their coats — while deceased was putting hb down, prisoner 
took hisknife but of his pocket and opened it. Prisoner then 
said, "come ahead, I am ready." Deceased then walked up 
to prisoner and said, " I suppose you have drawn your knife ?" 
Prisoner replied, " Yes I have.'' Deceased theif picked up en 
old piece of ohunk and struck prisoner 6n the arm, as he threw 
it up to ward off the blow, and th^chubk fell out of deceased's 



208 BUPREMfe COUlftT OF GEORGIA. 



Terry w» The State. 



hands. Prisoner then began to make licks with his tmfe and 
made several ; when prisoner struck deceased with his knife 
he broke hose from deceased^ who had hold of prisoner by his 
arm and shirty Md ran. As prisoner jerked away from de- 
based his shirt was torn. Deceased followed after prisoner 
and threw the black-jack chunk at him and struck him between 
the shoulders, which broke his gait in running. After prisoner 
dismounted from his buggjr, he walked off a piece, so that de- 
ceased was nearer the buggy than prisoner when prisoner toM 
him to come bifi-^thinks prisoner remained standing and' de- 
ceased advanced towards prisoner. They met about ten steps 
from the btiggy — were four or five steps apart when deceased 
observed to prisoner, you have drawn your knife. AJter the 
affair was over, witness remarked to prisoner, " your fiiss has 
turned out just as I expected." Prisoner replied, " I did not 
want to cut him but he was too large for me." The knife used 
was a common size Congress knife. 

Thus it will be. seen, that after Mr. Terry got out of his 
buggy and drew hi^ knife, exhibiting it openly to the€eceased, 
he made no aggressive movement upon his adversary. Might 
Deft the Jury have inferred, taking into consideration the great 
difference in the relative manhood of the combatants, that 
Terry, having gone thus far to maintain the appearance of 
courage, became irresolute^ at least to the extent of making no 
assault upon his foe — and that his final purpose was to stand 
altogether upon the defensive ? And is not this inference not 
only deduoible, fairly, from what preceded the conflict, but stSl 
further strengthened from what followed? Just so soon as he 
could extricate himself from the deceased, after receiving and 
inflicting the first blow, he turned and fled, and that^ too, not^ 
withstanding he still re tain ed his knife ? Man does not differ from 
the lower order of creation, so far as his animality is concerned. 
And if he desires to study himself in this respect, let him go to 
the beasts of the field and the fowls of the bam- yard to learn 
wisdom^ Who has not witnessed the hostile advance of the 
lK>ar — the bull and the cock? With what. seeming defiance 
they approach each other^ Vben upon the eve of collision— ^the 



iMNiraga of die .^eaker or more tmud 'feils^ and afte|; pufTtK 
the onset) or perhaps* without waking to Receive i^ ^e boU 
h^M^eart turns and Qees. 

Sacl^ the*Jarj might well have beUeved was the tinie cqii- 
stmq^on to be put tippn ihis.Vran8ection. And if so, {)ie 
diarge requested was legal — ^being warranted by the pjrpof ; abd 
the Court was b6und to h'hve ^iven it. The New Ti ial Act of 
the last Legislature is explicit ai^d^mperadveflpon this subject. 
{See Duncans t>ige%t of the* Acts of 1853-4, 2?. 16.), 

Bat it is«rgued, that inasmuch as the Jury^etume^ a vprdict 
fiMT manslaughtei:^nd not tnurder, th%t thef- refusal of the Court 
tochapge in relation to the higher off<^nce, could not.have4)reju- 
dvsedthe prisoner — this maj«betrue,; «till, if the eharge was au- 
thorised by the pleadings and the'proof, there is no discretion left 
to the Courts. A new trial must be awarded, whether apy injury- 
lias be^n done or not. The law, in such case, presumes injury. 
This case has been analogized to fliat ^f Boyd^ disposed of at 
the present term. The distinction between^ the two is plain 
an^palyble. , 

In Boyd's case, it was conceded tbat the Court erred as to 
Jitfi law Relative to Qianslaughter ; and further, that manslaugV 
Asr, as well .as .mui*der, was put in. issue })y the pleadirwi in 
Bbyd's case. But it is also true that there was not before the 
Jurym particle of groof to justify a ^eirdictfor manslabghter. 
Henpe, we refused to send the case back, to give t^^ Jury an 
oppoiS^unity t9 find contrary to law, wKen they had found ip 
acoordailc^wlth it. .Terry's case is l^e Boyd's in this — tibs 
indictment bei|)g framed and found for murder, put Uli issue 
iq^n the trial every grade of homitid^. But it'differs fropi 
^yd's in this : not only is nMin8laugRter,,about which i]fe Com^t 
lei^ised to*chirge, and as to whicbi the^rek was s<^me prooi^ pgt 
ifk issmfi by^th^ plea/lin^s^ but by the piroof ako. A^d thei^ 
f^ it V^s tjl^e pfivi)ege>f 4he defendant to hhv^ Ht^ heij^ 
^ d^e jjhargj^reqaeated. * ' 

IB^ the r^fuaal of t^e Court to.ins^rupt theiJanr, that tf tbe 
fMr^.ezifited w)iick|Uie re%a^fit assujiiedj and whto|i^« in tW 



2J0 SUKCfiMl COURT OF GEdHGIA. 

TerfV H. The £Rate. 

.opinloii df this Coupt, tke Jury had a right to infer did exist, 
the oflfende cmild Hot be iharder, the Jwrj might have doab(ed 
whether they ought not to ha^e convicted the prisoner of mur- 
lO^r, anfl therefore would the more readily htre render^ a ver- 
dfct for the highest grade of manslaughter. And tlAis t)ie 
defepdi^fit may have been, and prob^b^ was,, damaged. 

Btit we are not callec^ upon to show, affirmatively, t^at injury 
was done. The N^w Triaf Act/tssumeB-, that under such cir- 
cumstai](tes, injury i$ done, and will not listen to any alle- 
gati(Jn, to' thp •cyitrary. We qay be* satisfied that the 
verdict is right. We *are fully sdtisfied^that it i^ — ^still, 
we have n6. discretion— our hands are ti^d by the last Legisla- 
ture. The refusal to give a legal charge ^hen requested, tod 
the granting a new trial, are made, by the Act ef 1853-4, con- 
tertible terms. • * * 

If told, as we have been, by tho able and zealous Counsel 
who have arg4^d thes^ cases, that in Boyd's case the Jury 
might have fallen back upon the crime of manslaughter instead 
of mur^er^ had the^not been instructed thiit no suA o%nce 
cfxisted, we re-iteraie, th% evidence did not allow \o them this 
privilege* N^ith^r the Jury,«ia a civil or criminal case, nof 
itny^uman tribunal, nor tfny other being, has th'e right to dft' 
wron^ And it would be both legally and morally wron'g in 
this or any other 'Court *to award this privilege. 

Upon'fhe foregoing ground, then, alone, we are compelled 
to grant a new trial, hewever unwilling we may be Jo disturb 
ttas vydict. • . . . • ' 

From thp present eicited state of public opirfbn, defendants 
w^o are convicted' need expect little from* Executive or Legi% 
lative detnendy. , C<^^equently, it becomes the solemn du^ 
(f( t(e Cduit^ to wato|i wfth the greateat circufaispection ever 
01^ trifis, imd to se^.to it not onJjF that no a^owledgdS 
Aght icr Withheld, but "Aat the b'enefit oT a»reasonaMe d(3(Abt^ 
either as to the law or the facts, be given to the 8|bctt£il&d« XfA« 
if error be •bmmitted, let it b^ on the side dt mercy, rather 
than of Jti^i^e. The fJo'tonatidn'Oath ofKhe British S6vet«^ 
constrains eren the vonarck &i his throne to adniiSstee' the 



f • r- : — 

* RobiBon tw. Banks. 

• ^ ] 7 ■■ 

l»w in merpy — And the official oa4h of every JadiQial>fjano4m- 
MTjf high or htWf*coniains^ fmpremiytor iifpliedly, t^^sax^e obfi- 
gftion. It is Heaven's law, and Earth need not be ashamed 
to imitate the examjple. • 



• • 



: — , — f- 



Ro. 40* — Alexandeb J. Robisjn, plaintiff in error, is. JenK 

Banks, defendant In error. ' ' 

[l.j Whenever an execution may be proceeding illegally, thoHgh it isBued le- 
^Mgallj, the affidairit of illegally is a remedy. 

[2.] I^ae on an aAdarit of illegality, U^ a certified ^b|yKna-accotipt^ th§X 
the notober of days of attendance charged fbr by the witnQ08,~.wa8^o great, 
and diarge of the Gpnrt to the effect/ that th6 subpccna-accoants wese %^- 
nA/acU^Tidenc^ for the witness: Held^ that tlie charge of the Gstprt was 

[3.] A witness cannot charge for att^dance rendered after Ihe case ht^ tken 
postponed or' continued, wheUier her happens to hear the'annoancemeniof 
the postponement or colkfinnance or not 

{4.] The same party sonuno^ a person as a witness in mor# cases thai> onji : 
J7e^ thAt the Witness may charge full fees in es^h c^e. , 

• • • • 

Illegality, in Mosoogeei Superior CSourt. .Tx^ beforq Ja4g9 
WOBBi;.li, June Adjourned Term, 1^34. 

Alexander X Rohison sommiyiea Jo&n Banks as a ^tness 
for hun, in nine several causes, serving a s«^a?n'a in each case. 
Banks swore that he attended eight <days at d^e term sad 
thirty-eight day8at*imoth^*teim, and oaijsed the subpodnns 
^hns proven to ^ levied on a citf lot. 2|obisoi^ made **^ an 
a$davit 9f illeg{Ji^,'''allegingp-]^t. (Fh^t Blt^ks did npt (it- 
tend as alleged. 2n4* That the presid^. Judge annotpic^d, 
early in each Cpurt| that tiie cases.Toidd sot be tried, unless 
lie coq14 get aqot^er Jildge. * 34. Th»i Banks ^pts e^titlf d to 



t& SUPKEkB CJOt^RT OP GEOJIGIA. ' 

f- 



RobisoD ra. Banks. 



datm only dp, one subpoena for eaofi da^'s attendance. AHl 
lS|iat ftab'poetias conld lie lepvied onl^.on personalty. 

At the trial, Counsel for Bafhks moved to strike out die last 
ground, as insufficient. The Court granted the motion, and 
Bobison excepted. 

7udge IvERSOK, as a witness, stated that as presiding Judge, 
he did make the announcement a^ to the* trial of the cases, ear- 
ly in the term. The Court charged the JEnry, that Banks hay- 
ing proven his attendance by his affidavit, the same was evidence 
for him of Aich att^dance, and^wpuld entitle him to recover, 
lugitjl the same was disproven, or in some other way avoided hf 
Bobison. To ^his chtrge.Ritbisoii excepted. 

The Court faAhet charged, that if thb Jury«believed the pre- 
siding Ji]^^ made^he announcement from the Bench, in open 
Court, that the cases would not be tried, and t^at Bankft w;^ 
pre^^t and hejurc^ it, then h^ would not be entitled to'pajmeitt 
a^er tlfat tim^. But if Banks wa§ not ptretont, or wacTnotno- 
tined of it by the party subpoenaing him, tfa^n he was en^^ed 
to parent. \ • 

*iQPo this charge Bobison excepted. The Court farth^ti%arg« 
ed, that if Banks was entitled to a^y thing as a witness, 1^ was 
entitled to hiaper diem pay on each'stto|)tBna. 1?o this duHge 
Bobison exce*^ted. «0h these several 'exceptiops error k 
signed. * * 



• Ingram ft CRAWFO'!ii),:forpIaifatiff in error. 

DouGHBftTY, for defendant in error. 

fiy the Oburt — ^Benni^jg, J; delivering the opinion. 

l^he^CoArtbelcr^ decided, that the. levy of a certMed su6- 
poena-accouSk on ?rtw(j, . is a matter whifb . dhinnot be reached 
\l^ affidavit dt*illegaUt j'. Thiaf decision is tte first assignee^ as 
erroneous. ♦ • ' ^ 

* A part of the thij:^y-rfoconA section,of tb^ ^udicfarv Act ^ 
1T9*, is'*a3'tblJow3: ^iln all tases Vhere execution snail issue 



COLTJMBUSf JANTTARY TERM, 1855. 218 



RobisoQ h9. Banks. 



^legally, and the pensoft against whom snob ezeeution ihay be, 
sliaH'niake oath1;hereof,* and sball state the oanses of saditUe- 
gality, sack Sheriff shalf return the same to tbe next term of 
the Gonrt out of which the same is4i;ied,.whic!i Conrt shall de- 
termine thereon, «t such term.'' (Coib^s Dig, 609.) 

The word ^' issue/' in th]^ section, hjus always, to the best of 
the knowledge and y^ormaHoi^ of this Gojurt, been considered 
and treated a& having the^sense of the word proceed. T^at is 
the sense which the^wdtd is assumed to have.Vy the- rule of 
Court whicif has reference to the affidavit of illegality, fdr the 
Only case,whicb th^t*nile provides for, is a case in which the 
illegalitji consists, not in the executiop's having ts^ued illegally, 
buf in ^ts pr<^eeding illegally, though it was issued legally. 
It ii the case in which, notwithstanding that a payment has 
been made on the execution^ th^ ^ecution is proceeding, as ff 
no payment jiad been <nade on it. The rule is in these wor<l^s : 
'^ Wheii an affidavit of jlTegali^ is made, on account of partial 
paymqpt made on the .execution, the defendant, at*the time of 
making sucb affidavit, myst pay fif the amotnt^ admits lo be 
due, or the Sheriff shall proceecft to raise th<^ amounti and ac- 
cept the affidavit for the balance.^ • 

The reason why the* woi'd, to ^ issue"' has b^eh tAis treated 
aB.havilig th^^ sense of ^e wcurd tQ praeeed, is^perhaqps, t?(0- 
£idd'-'--^t,*the wp^ Wae probably used in that seifHe in. the 
AetB firom i|hich^ it«was, .l>jf«t&e Jiudiciary Act of 1799,^iA(^te4| 
m : 4lie Judicykry Adts of 1702,; 1796 ? 1797.. . Secondly, 
tbe Statute using^the word i$ alremedial one, and was iate^ded, 
in |dl likelihood,i to furnish a substitute for the remedy by qu^ 
ditd quercit^-^Vb remedy that lies* for a man in -exQoution, or in 
danger oi it, when hc^ has matter, in fact or in wntii^ to 
avoid such execut)oi^ and no other means to take advai^tageof 
it; that is, a r^pedy a^much for matters iarising after the is- 
sniitgof the execution, as for matters ansing after, the jnag- 
id^nt, b^ before the issuing of the ej^eqjition. {WaLD^. 
f«6, ei6, 631.) 

[L] All this being so, it lb too late, now, for Q^tirttf to into^ 



214 atTPBEME GOTJBfS OFfiEQISmA. 



utAiwm u, Bankf. 



pose aAd aay that the iford dhall be no longer ^en in the 
sense t>( the word proceed. . ^ ■ • 

Taten, -then, * in thi^ sense of that Vord, the' decision qC the 
Court below was* wrong t fyr the Statute which tarns a certified 
snbpoena-|kCconBt into an execntio^^ the Jndiciarjr Statute of 
1799 authorizes such an execution 4^ be levied of ^^ ^ods and 
chatt^Is^ onlj;^ ;an<I the* certified subpoenw-aceount^ in this cistsCi 
"WBS^prceeeding to bb leVi^^ of tam^ ' * 

[2. J The charge of th^Cotbrt below^that Bankg^ the witness, 
haviifg proYeii' his attendance by his affidavit, t^e sama was 
evidence Yor him ui^tfl disproven, we understand as amounting 
to no rnqre than a statement to the Jury^ tb&t th^ subpcepa- 
accounts, in their certified* condition/ we^^e primm facte evid^ce 
of thb correctness of the claim of Banks. » And this tbey .cer- 
tainly were. • 

* [8.] Section twenty-one 6t the Judiciary. Act of 1799, is as 
follows : ^^ When a subpoena sh^ll .he.serv|Bd on aAy. wi^essf, in 
<^nfbrmity4o^this Aot, it shalfb^ the' duty of such person so 
sununop^d, tp attend, fi^m time to thode,' until the dtuse in 
which Si^h witness shall' have* ^en tftunmoned, ifii tried or be 
otherwise discjiarged b^ the Corurf Sbnty to .attend fiSom 
time. to .time until discharged, means, duty ^ h^^preuntj in 
Court, friHiv time time,'until discharged.' If, th^fove^ a wit- 
ness is Aptpr^jMnt in Comrt when t^he-catpe^is po^tpenechor.ooa- 
tinned^ a^d so fails to hear the atmouneen&f li[t.of su^ poitfMne- 
nton:t er^cmtinuance, it isMs'Own^uIt; iCnd he is no^>' justi- 
fied in atten^i^g afterwards, and clU^rging for^att«n9aii8e. 

iThCtlt'jtaees, therefore, in|hij cali^ was no'tgustified in charg- 
ing for attendance. rendered after the announoenkent madeiby 
the.Oojut, that the cases in whigh he was stlmmoned would'not 
be tried f and so we think the Court bblow should ha^e tdd 
the Jury. • . , 

Jb -a ^tness, attending under )nibpcdnas in ^different eposes, 
at the inslancp 6f the same person, he a party in al) of those 
<N(^*entided to charge full fees in each case? The Court 
below 'told the Jury that a uritness is. And we think, tAj 
lltoprep^. ^ 



OOL^nifti^> JAinJABS T^BM, 1865. StS 



JLu. 



BoblsoB M. Banks. 



• the Fees Bill Act of 1792 says : "To ^ch intucss per daj,^ 
~for*liiB or her attendance, for coining and returning, allo\vjng 
80 mfles fd* a day, not allowing for more than three witnesses 
to -be^ paid by the ^rson smnmoning the same, and taxed in 
the bill of costs 7&" (cents.) By the Act of 18^ seventy-fire 
cent» a day is raised, for Moscogeb County, to one dollar and 
fifty cents. {Cohb'i Dig. 858. Aeti of 1889, 141.) 

** Taxed in the bill of costs," must mean taxed in*the bill of 
costs of the can in which- the ifitness may have been su^^^ne* 
ned. In every' case ttere is a bill*of costs. If, therefor^, 
tKere are more cases in* which the witness has b^en subpoened 
than .oi\^, there will be more'billd of costs in which his j>er diem 
is to be taxed than^one. 

Th$ party, then, th((t summons a witness in more cases than 
biie, has the right, If he gains the cases, f o tax his adversary 
with full fees for the witness, \d each case: But if he has the 
right to tax his adversary with full ^es in each case, it must be 
because he, himself, was under obligation, in the first instance, 
to pay the witness full feed in each case ; that is to.say, it must 
be because the witness, in such a state of things, is entitled to 
be paid full fees* in each case.. 

And if in 'such a state of things' the lyitnessis entitled to b^ 
paid fuH fees in each case; that is to say, in a state of 
things in which the party 'calling him has the right to tax 
lus adversary* witlr the fees, thfti the witness is entitled to be 
paid them in each case in any and every state of things :*for there 
is no IftiHrom whijSh'it can be presumed that the Legislature inten- 
ded th^fr the ameunt of compen^tiot to a witiies8,^as eVer to be 
greater, if the party calling th^ witness should gain tKe ceM, 
ana so ajiquhre the .right to ^tax ^is adversary with spdh .coin- 
peii8atM>» ^i^ ^t was to be if that party 6hod!(d lose (is case. 
On the contrary, there is Uw»fiom trfaich it is* to tbe infiqrc^ 
that the' L^gisfature intehded the fees, of a witness to be 'the 
sane, wheth'et*the^paity calling hihi should gain \iis case er 
liiMd lose it. ^e Apt of 1<I^92 gives the witness t&e right ta 
madke olft his acoount 'for attbndan9e, on the last day of his at- 
teiida&ce in each teito. And it may, and'^requenily d0e8*hhp^ 



•216 somHs fimvt^ ommiA. 

1 ■ * ■ ■■ 

feUy that^odi dsy^oivet before tbtt of Ihn tftrmiMtiwt of 
tbo'sm^ and so^ before it cai^ be known jrliich. party, will ane- 
oeed— which fail.. ,{0M'8 Jiig.^'n.) • 

' {4«] !t)ie resplt, then, aeems to be, th^t^ Iritnees id ehti^ 
to <^arge th^ party which has' aommoned him, full fees for eadi 
cade in which he may have 'be^ aommoned. 

The cc^rrectness of this conclusion, drawn froqi the words of 
Statutes, .is o6nfirmed by what has, as*far as welcnow, been the 
uniformpractice of all the Gourts-7-a practice, perhaps as old a3 
tiiose Courts. Those Courts tave always, we* believe, allowed 
witnesses to charge full fees fpr each aabpoana. • 

And yet, when the result to which the-law, if this coi^clusion 
be correct, may, as exemplified in this casc^ lead^.is considered, 
it is very difficult to think that the Legislature ever intended 
such to be the conclusion. In this case,<4he witness is sum- 
moned by the same par^y, in nine (iases. He attends forty^isix 
days, and for such attendance he charges, for each case, one 
dollar and a half a day — thirteen dollars and a half a day in 
all the cases. To allow such a chavge, is to say that witx^esse^ 
in some cases — and those cases in which the witnesses are put 
to no unusual trouble or loss, shall be paid at a higher rate 
than the Govemof of the State or members of Cdngress. • Did 
the Legislatuire intend to say what would lead to this ? » Har^y^ 
Still*, thisHresults from what they have said and what they have 
left unsaid. They have said* nothing to quthonzeanj other 
rule that) this. * *. ; 

If the L^slatura hful said,.{ha1i in suchp ease as Uys, or ia 
oases in which the^ same person may b^.summqped by different 
paVtie^^he witness should be en];itled to have, fo^ attendance 
in all the^cases, i\o more than a named sum. per d|^y, to beecol- 
looted &t bis option, out of a^y ojf the fparli^ calU^g '-)um, if 
oallad*by mpre^ than on^ pr^vid6d the jtiipe for wjiicli he at- 
:tended'for thift party, wa^ as mfttcb jis the .whola^ii^e of feis 
tsyttradance ; and if notAS- much, then to. be co)]keted, in f^ 
out of hid,' and asto the re8t,^oi)t of anothdir or others of tlioae 
oalUn^ him— and had further, sud, .thai* the party 0% pai|iea 
Old bit ifhom he jni|;kt ao collect liis pay, ahoold.have th^ 9gb^ 



J 




'MURTAftT Mpiff, MS6. ,^90[ 



^ I i * 



lAfiPlMi M^ BcqWn. 



« 11 



80 Aat ilM nkBtete p«rti<m. nWf tMli pffty •wtridi iun^ to 

ll|^mtaeflB|^4b^' is; jn pco^artioa\o the lengtb of time i^ 
Tiiidi tha nitMiii U^ tH^nM fttriuBDi then* of e^uiie.lhlk 
oo&dwoii to iphioa fro haro ^ome wM4 have ]m^ Qiibrent* 
^tjihin the j^^ia^ptuyo hayo pot Bi^d> • 

Od this fcit^ tber^fqre^ we thyik tiie Gomt below 
lighu , . • • 



• « 






»« 



• ? 



Vp. 41. — ^Philip JL« Olayton, phtintiff in ervor) t^ Dbmmst 

. Bbown, defendant in enor. * 

[1.] Where penonAl propertj is conrejed, by a hasband, to a trosiee, f#r 
the benefit of hi^ wife and children, the subsequent possessii^n by the hus- 
band being consistent with the object of the deed, is no evidence of fraud. 

[t.] To make a voluntary conveyance void against creditors and purchasers, 
lAthin the Statute of Eluaheth^ it must be corinons and fraudulent, and 
not Toliinlary only. 

ftroiver, &c. in ^jmogg^ Superior Court* l^(ied befcao 
Jidge WoBBiLL, Deceoill^, 1664. « 



vvas'an action fctr a negA man, Oharjte, blronght>Jiy 
Bempeey Brown against V^lip A. Clayton. Brown claimed 
usder a sale by the Sheriff,. of the oegro, as the projfifty of 
ope B^yes. CUyton claimed • uofler a deed of trusi from 
'Ba »w e o , fo9 the beiie^^ of the wi£^ and children of S^evee, 
The* depositions of one Holq^ss stat^, an^mg (^her things, 
tittt Beeres was iitdebted to liim 9M4f hy note, which not^ he 
iMd to judgment. Ohji^eted t6 by Clayton,* qH the grtand 
Aat*thc^ Mtti»fai{^f and better evidence. Oyer-nled, and 






IHA ' BUHUSB CO'ras^'W 




■ I. ,,'A 



014ar«aiVM. lfrofi<iM 



"^ AU I kMw*of lys ii^%tt9aiiiMB.td ^)Am, iA thtf yem 18&6u 
«hI ]i8S3, 18, 4}iitttheteir«,afi]^at'tsottiphvlt hj bid. ei?edb- 
iys, Hut be did not or wofad aft ^." , 'Objeelc^ %ohj Olfy- 
%M| as ^rMjf. Ower-vuMy aad OH^^toii exj^^iidt . 

SliiAiffMloW'OflhreAinjeiidenaea tiaiiii^^ ra- 

oord of Bibb Inferior Cburtji showkigv— 1^. ^e pfooM^Ua^ 
hj P* A. Ohkytbn, in 1888, to estabUdi a lost iiote; tad ' mort- 
gage i])ade by Beeves/ the foreclosnre of tke mortgi^, tba 
fi.fa. and return of nu22a bona; also^ several odiev^. fat, is- 
Stting frpm that Court in 1888, .against James T. Beeves. 
Glajton*s Oounsel obj^ected on the ground, the testimofiy was- 
irrelevant. Th^ Oouft everrruled the objection, and Clayton 
excepted. 

The Court charged the Jury, ^ fliat if, froq^ the evidence,, 
ikey believed .Ihat Beeved feaiaine^ in possession of the pipp- 
erty, after the itaking of the deed of trust, suchpossessioQ wa^ 
evidence of fraud, and they were to^ preeiume fhtud in the ma- 
king of the deed from such possession in BeeVes ; but tiiat the 
defendant might rebut such Resumption ; and if satisfactorily 
exjAained, the presumption was removed." To this charge 
Clayton excepted. • 

The Court farther charged, ^^that if the deed was a voluntary- 
conveyance to Clayton by Beeves, for the benefit of Beev^* 
nife ; andjf the negro was- levied Qn by Ihe Sheiifl^ ts^r a 
fi.fa. an(i sold, and Brown bedame 1^ purchase withoqt ac- 
tual notice of such' deed, then Brown's title was good 4 that the 
r^gisCaration oT^he deed was^ot sufficient notice t6 Brown." 

• To all of rtiis charge Clayton e^sKepted. *' • 
Otf^t^ese several exeeptions eiror wto -assigned. 

• # • ■ • 
'^iatfge BElririjro having be^in 'of Counsel-, did not presiBfe.. 

y I/(GRAM k Crawford, foir plaintiff in error. ^ ^ , 
DouQHERTY, f6r defendant in error. »' -' ^ ' •• 



■< ■ t * , ■ f ■ * . . , „ ^ 






, {!•] *Witibia»t><myilipgi(ji^iwittBMio» maJ^aMy A frotUL mi^ 
thftt wd are DOt^BvCisfidd lykh^the maimer in iphijli iki^ itm 
ing ■iiVnif Ifl A (a tht. JiiHr*»'tf4be4re^vd ipe(aks rigiit, k w&s cot 

Tl(» {l^wpt jMm^ <Ai»' Jii^f ^t if Jmi^ 7. f^Kom r^ 
Mprittid^inMflOflyMiin of li^e^fHttpeili^ ifw«d ja dM ti^ Jte4| 
exemiied by him«to'Pi»KpiX O^^tei^ iW^tbe kfie^. 4i kli 
iiifc luid 'elrfUv0il^ al^thgi conv«}VyiM was elMuM#t)i«% it 
ifpk e^eab^'ptm wbi«h £ciMid. [^ild4>6 prt^qitiML • 

ii^a|d^4fc»yi8^<i^..I^ ffteecyiM (4 ilH4M»t|r 

9BA»r,BBcliaAeed»^ici^A-M^ pr«p6i^? »H it he idhi 
ilMii^tipeiTiforafc^diibl^ «(lo»'tk# 

bMxvi^.tUte^<^«ito4Jitt it is Uft AJbf n 

prcm(p# lir.tli^nv ai^Me^pone^iMfc is ceBBisleiit wA t|ie i:^ 
twe •f lM^]M)in»i0|it» >Q9r» iie'^odd Msk, is dial p <sscD ait» 
ooftTerted ]olo% badgi of tend? if we hikTe.n<)|t tt]8ap{)refaei|d* 
ed^tfie Twifi itMf^ as woH^ die reason jfpc^ ^Mx^ it js foiiM» 
ed,«the> retention of possession by the vendor of personal fvofr 
a^lj^tafttr an absolute sale^ is, pmma ftme^ irltiMeBt ^nd 
ee^EKdttdYi^.^ . if .nanplaiiiefi^ becmtie^ netaining p gtoselrtsfc 
QBAer sool^ ^utamatames^ is contrary .to die nataretjl the ^nr 
TigUMM)e. Jfat wn «|ek fiMaiTapjiylii 'does ^ em logitiinatoly 
a|i6^«wheie dM ceftdnf^ posMtoton is seeoneilaUe «tth die 
tsaftiifM^^ .^/whgge yriflayl pi>Bferty» aa in 'this mm^ m #qip 
T^jped^by a hisbwdaAd^fat^, to»a tmsteOf tor diebeneftt «f 
bilhriie4ifMl lohij^ysni thorsobatfoent poss o ss i ^i^ of tbe bufbinl 
and %#ir^ cyaiatiiirf ipth tbe e\^;af Ae 4eellr tndjbjia 
iiyiffcp|iW4||hajfcey% ^ fr Mi i^ balUitf sf a «dMqii^t ]niao)|a« 
atr. iiiftn pilnpi^ if ibg>.iQma»r i% i»jhBt#»d^ i<ylf«M»t 






— Z 1-1-^ 



df lavy the possession of hh family. Aad for mise^ I alft 
tftroBglj mcltoed to* Iknk Ihal skkA VooU be 4lle emslnie- 
tion which 1^ law would put vpoii^h% transaetioiiy utiees the 
Iw Mbg wl and* falhHr .were IMsff 86pa9a|e audi apart^ibm the 
alAut'fice Mm! < . « 

[2.] We eikittiet cooicar ^di, Sis^HoiElor, the pesidilig^nc^ 
Up* llie Olher poki of W a hM|| 6 \ whi^^ Ms^ tlHil if «BiwiNi 
boaght the boy Charles, one pf the* negroes named in4be dead, 
at SiMriff*% 8ahi> wiifhout «el\ulliMtili» of f|ie'dlM froolJt^ee 
H €laj||6tty tkkt ha «ABq«ired*a .good tfui>4 indefoAsiMe Ihle to 
At davef a^d the Jttty tfhnt $o find. * ' 
' ItoirbeitlhMjistocotttrevarttbf {de^tllata'giftor'Cte- 
yeyaDce, fotadt^d^nerelj npoA a fdod x^nsideA^ob, saidi as 
%liod er affsc^n^ may nU be«det*:amde by c0»dtboEi| if il'ap- 
|Mr thai the ^ntfor was^^^iMbaj^nMled emaUoM^e^ jnh^ 
MiintaSe^ti' tV>r it hasrb^ w^«^id^' Ihiat a riiAr lirast be 
Jail' bMbre he ib g^eroas ; ajtrd ^aC^cr is boaadv \k)th lo^Wy 
airf HQlralf, to nay'hiB di^ta Jteftwre giving nj^mliB^^p^. 
0ImH^ we do Wintaib Aat tli(^ iii^« faotrth&t*'f iflan is indeBM 
ai the liaae, iC| inl render hiQ,gifir, ij^ f at/to; ^iii (IBfiuh's 

fy, Id J&km. iiH 58$. i2^«#»Mi%. M^infUat^ 8 JiifM, <7i. 
Cfatti. 4»% 59ir. SexUm vs. ff^ A>atm^ ^ Ifi^bae. Jl. aW; . ^Ma- 
il# M. Beci^4^Bankj 11 ItfiM^ J^ 421. IJh^i J!^ Jk 
9MS, 361^- o-^ 868, 3M, 366; • CaA$gmi, «s. * Jftfin#(, Oi^. 
J». 432.) •' • • 

' And aMboligh the oasee eahibit some apparent divemlp- on 
im^peiQt,' it wiU be fotind, nper^ eaieM eaamnMtdsB, tbaiise 
eniy freoiii dWircnee of*opinion as to w^t aaicfnatiof kdebt* 
#dMss ea^adsMmsfi^y to adftpt b iMre loo^dem iaord, ooMli- 
Itles ^tfficieot e Videsce ' of fhtnd. It 4ie beetioi^ to whEMi ^ia» 
iaif-e abrtady Tifrferred) in 9^% Jf^^ JM^prkdffMf ht- 
l^injiing'filrther back, fcr866,*and^rtRgft!Hg to 80S,' uldakkhe^ 
la^e Stery i'eff&ws tiie.prirforpal<ca8el, aiM^Wta ik» ^N«i|ht 
ef Ms aafthoHtf agViaet*the 'ddotrine^.thfit Of^ n^kiMfy m- 
etj^MMb^, foe whMi a v^haiMi c rfb W fc ' Mi w is tfst gtMii*H * 
fiit^ kideMdrut ti^«i##, i#>»rityVdidfrif liK <<iilitolBt 




y. mV ri rt * , by Lwd . i fci nJi i M> »» j i n ^ii Ma to thbckw<i^ 

Ike km^ Jbowevt^udvw.Md lybK^Mii «i> adwt it» llMkt Acjit 
*e flfi^ other padfle ia.the woc)d beaide»e^^)^b^ ; a,^tliiu 
»hwhiiii^aad {t^ior^ i2)BlMMt'vf*Ulv]|ig4u»hfldj dbvidj»d oi^ 
•■Kmgst his cr«£^f^ M diro^ jby IJk^.oM Itynmi h>p^ «r 
io.ptq>rtiMJrimnoftiiwnrinnmtlK^-daftge^ m 

hjr^te Engtj^ U^ nv^y ipve^bb property. v» tw 
^liMifd dtti^b«ft, am^ liAe^ftv Iheir BOaAenuvse sod 8!y|Mii^ 
fmf^g^ I^ does^c^fKiiikly, aliM| w^ no h^tto p^rptf^f»te s 

QlikMfPMi. #• if iriuch. velane^ to liim^e'egijnaVcMiH^ di- 
reeto, * that no act jrhatever; done to defraad a 'creditoi^ (^ 
eped^eriL idiattrb^.of.aiqr ^Mt ;^; |ynt.et eh *«]pdi(qr oc oife^- 
<|te.' Ba&^I^D> avih a toiiatw Krt i9a i» ftot t^ bQnoh4eia Vfft" 
f9H <rf tr fdi i e r^ 4a jriU*|iia>ae tbh4 p i UNi^ qofMnorfc. "lleift- 
ifiie^ Ike Stetete xloiaiA>t tnUUale ag^iiiei aajt twueititn^ifr^ 
na )U0, and ^i^ere there ia.no inaigpiisM^ %^ firmd. ited ••(> 
it U» XJcp^pMinbi*. 'JtotifltheiraBHplioa.beiotfto^iaJide, 
the cipwartliTe.wQf il^lj^ihg, 4one fbjr a S^f^kiable c<nm^en^ 
^imu will not) ateiie,4ll4^e-iteat of.t^ie SlMo^.* . ]th<ye known 
•ttieval cAia wbem f0npps have jj^y^n a fbir and full priee for 
geJb% an4 «here tim-ppsfrntilm .waa. actltalljf 4;haQged; yet, 
\mf§ dsM ler Ibe.futi^ife lof defoa^ credltoyp) .the*traitt«e- 
aiika h^lieen^Md Aanjh^^ jiful Jhere£qre Toi4.". ^ 
• ar€lM ipse nal^ vlieieMlieBe id|d been a deevpe in. the Genrt 
'efiOhieie»y wd a> eegHe^tgatioai , A j^erfD V w&h knowkd^P 
deMe^'kev^ibe'kaal^ ai^d goods belooi^g to tke4^ 
wd gave««^iiU pijee foil tkem. The Coustauuid, *i^ 
bepf^ Witknia xmnit^ Tiew to di^eat tb^ orediteTft^ps 
firavdnlent ; and therefore^ not j wt h i to^ JUng a 7i^bk coiptfl 
enntioD, void.'' So, if a man lu^ws of a jiidgneilt and ezecu- 
ikn, and with a view to doCeat it^ fMrchases the debtor's g^ods 



if$ flOf ]iflHB''0OURT''«r 




1*11* 






<me man* to, oke<t » w < t b <ip , wiiidi. 4he hkVt niil seiner dio% 
fhe^ftre lamf tMngs ir]Ha^%rr oMpMMicb iitwHniUMjimr ^ 
ttamA. Tk6 i^ta^iote «^ net & ir6rd*sbMI poi^ pmkm j ^hA 
Ap tew says, if, aA^ a^Bale of g9P^ the-'rladar lidiitkNie ii 
po^b^Mon ai^^pear as.<fte .Visibto oimeii it is . ofi JMbiao 4 
ftftud, ^eetase- jgoods I>iSs"fiy clq^atgr ) . 6»6«Si # .iM /<HtiirMi» 

''«he slatiite*^27 Sltk g/4y dy»i>6t^^gafafi H i iy| M fr 
y^f^ances men^, as Bei% iw2ifi»la^f bn^ >» bQeh^a4l «va j^4»-* 

(^edito)^ iii3[MK<h8|g[^ its b^ ' ^ h p ty y. ^'ha 
siknee 4f « tbjto'a l^j; iB4eked[at.tb#laji»«t>f ^h 
ToloBtajry coQV6jaboe;«isiaB a)i^«^0fi^ofHhNl8. • fehaqMMkt^ 
t^ertfoae* in eiver^ c^ its ^etOk^t !tte astsiape 19 « immJUe 
trkruuf^luxii Qr^^rhstktu>itna^triri^ai|Mlo«tls^^ 
^nredkors.'* * ' . .. . > • 

Intke 8«lp^]il>eaeac£ J9^ ^ <ttm. JToMm ;^ «L m 
Jl|f«l0{^e, (lb. i05^f die LonihOU^i J^tftiee ^|sMM«tes i^i* 
saii0'pnn<dt^M4p^t^t^^^«M^^ eedel f ti » iBll| % \ha» >» 
nnase v^tmUof^ suttieoiei^ yeifiy i;hci7 ^ttioit 'li^-H wMm m 4A 

I liave qaoled ilntf Ubel««ly ^^em *titeSe i t&l/l Mt ti m^ fcariag 
that errbaeons adtiotia pae Vailed. nd4>^ti% ^^ i b nt stim ^ A 
man ftiaj^'be'WDHl^alillions^ and sell a siiigW slaye, eii# gal^i^ 
fan ya;^«e; still, if the conVejahoe wto«Mde' tcrhiaMr aied ^ 
laj'^cr^dtMni 4be sj^le woidd Ji)^ bet eNlUa,:ae te thupi' OnVha 
cmttrary, a volantkry-eonvajanee, im^Mrtrib oiseMHlaifeii 
will be pnoteet^ eyeir against a*<Mte ^t^ and* Mii||^a44lla 
'Am 6f t&e tramCBT. It^ ia'3^erf SMheaMyls a^'fiMllMi of 
itJbiilKm. Tbe Slatete, HselQ ^^m^ it -ae. . "^ WMm-MmI 
to^ttefrajid,*^ flUe Hs yrdfitt. 1^.11^ wMi tHb eapuiMaa eC4la 
Ivfj afidwit^ a sitigle MkAckuA Tasaafk, ^lat n^^i^e^ - ukmi 
<fM^mUjM^%/hA wf&mf W *» wMi Urn kaHHT) w»**aWV 
3M«m 4is'eaS0 far a re4Miii^ ^ .* 

"* • » • - « 



, 9msASii^ ^mmty-wK 






Bkt^q^^ w. fipoftivi^- 






[1.] Where the fuU by a trtt«^e,U on Ac^ojif of an^ mutter ;Rrbich ctajperaa 
the execution of the trust, then, unless for some reason of necessity,* the 
mtha que trust must.be made a party. , 

^.] An administrator^ inmrdlan or trJlst^ef in Geoi^a,' is entitled to compel}- 
tstlon foitthe execution of th« dat^es of his tmst *< 

£3.} As a general mle, the Courts of Ghancery will not permit a trustee to 
•BcropMrh npon tW^nstluady^o^jfactioii an e&pfi^{t|ire*excaedlng tin in- 
come of the estate ; but if, from cjrcumstapces which do not result from the 
fatilt of the trustee, there be no income or interest out of which the trustee 
may get ^;<>mpensation for his cfl>e, 'trdnble, and attendance, in ^managing 
l^e fundj then be may receive payment ont of 'the principal. 

t 
> 

In Equitjrt in Muscogee Superior Court. Tried before Judgj^^ 
WoBRiLL, Di^ember, 1854. 

Thonnts Grant, 8r. by^hb^lV, pkced Ten Thousand D<d- 
lars in the Iftknda of tntsteee,'for th^« support efJiis vnSe — the 
"iMefe^^anijialljr aeecukig tbereon ^* to b^ aij^Iied tf> tbatlgur- 
pose ; the p^^eipaL not st her oi^iaitrolf to be given Her atUke 
iii8oreti<Hi lOf the truAees-*^the trusttfte to ^e bopi and ^ytJB^ 
bQt for the MMne, and their .faftbful>diifkfibfrge of md di^, Siiid 
be allowed a reasonable compenfpitioBribr their' treble." 
' • SuMUMiiChraaJt) Jr. <m»ofi the Uwtees, too^fwssespioi^ (xf the 
'tnrf.aad.poid Aref'tfifrinMMt anasaU j, to jthe vrtdow, l|ra. * 
iittrtha^H. Ghrant. Ai the dea#i«of Thomas Gnmt, Jr., Ike 
^Aer <histee reeeived frem his Hclaftiistrators $9.400 — tKey jdc- 
#sii^ «flO» for bis co^ipensatiop. A bill iras filed by llie 
tnuqteOf . against ibejftd&imMiitoiBy- to veeover thisan^ouBt, aad 
fUlg^g att ^^coouBl for iiitecee*^ made on iHk fund^ 

• siMbe Irif^MvpSlion dfidefiMiU^'s Cewi^l, the Ck^ order- 
t<li<himi aoHHriletf, iHi^MxrAmiL ^anif ike §mimqu€ irum^ 
.l»;be lyiHfe.ft povty sfiifilliP^Mlr^ 8hia«dniifaa is Ike test 
•»iW,iiij<g|li ^ . .^'' - ♦- *..»/ .% Nt 

The Couit eh^ged the ' Juvy, that a trysts 



Isi > #wMip8 oema-m moamt^ 

. 1 : J r-^ 

• ■ t » ■ . ' ■ ■» ' ' ■ 

comp^paiftioii, and that m tliis case^ it dMidd be paid apt «f 
thuB t(«Mtffi|ndi and that' 2} j^ eeBt; for receivings and the a^sik 
ht^dkkmm^y Mitfi Ifi^peat c^nt. on int^rest'ma^, iraa « reiiileBa- 
ble compensation — ^but that the Jury most detttufve the 
amoont. 

ehai^e 18 iJeo aangoed as error. 



Judge I^SVKIKG .haying b^n of Counsel, did not lurecede^ 
itt this case. . • 

• » 

. Holt* k \: 6.* If os^teb, for plaintiff in error. 

DppaHEBTV, for d^endaiit*in,en;or. : • 

. Sy- tJte (7oMr^.— Starkes, J. delivering the opinion. 

[1.] iThe Court below decided, that the rcettui que frusf, 
Martha H. ttrant, ^should be made a, party, together with her 
trostQC, to the bill which had b'een Jled against the defendants 
in error ; and thi3 decisipn is aHeged to be erroneous. 
' J^ is a, well kpfo^ generaf nila, that all p^aqos nu^lerMil^ 
if^restjd in the siubjeet, sl^ld be piade partly .to the bill, m> 
tl\}f the Ooprt may be ^tkabled to do complete justioe, by deci- 
*ding1tpon^nd settjp^ the fi^^ts •£ aH intereated, and fotose 
litigation inayl>e prevented.^ 

• Wl^ire a snit^^by a trasteCy is^i>«eoo«nt of any tnatttt«dudi 
•Mcems die exeention oftthe^tnttlf llMn*the*€a8e ihib wc^Ib 
tftis general mle ; and nnlpqe some reason of neeessity fovtils 
it, the cettui que tru^ mast be made a party. In avKi eaa^ 
ikB ceHui qite trust has an iiMiedia^aiid inatenlLinteyat%i 
Ae svkjeeUmatter of the suit, qpd. it is, proper he ahonU be 
laade a party. {Mirk v$. Olmk, Ptteu in OLi^i. Adm^ 
9^St.j^e^^lSmUfJB(Mm^^mt. D j |ifh s %' f. JBb^O, 
.a^SKm. ^ Stu.ia^ JlbMi.m JM^tJUn a^MI^ 
^-WlMie a t — ht a r as p w iiy lin g n flijpm for a ouM^meinui^ 
i^ Utter i^^old be a party." (JVM ee. Bmlf^, hMt^ 



I . 



-.J. 



e^iFii9^,-;f AinrARY tebm, ' isss. sft 

■ ..1— — — — ;; J ^ ' 



'!^«i0fir dlied by th« C^tfti^M for AJtintiffiii eiroi^ ifUA 
iNre jmip|H>86d to oppose, tllis nd«, sreretill eaeesv We ^elieve^ 
^pifdloitf exn^|rti o ft, ^toe tbeeieeiiiibB of tb^tniBt, or ihh m- 
teleits ijfltkAfkui que inuCj ^m^ not in quBsdoii. 

[2.] ^Fb»tettr iqfMiy be (Ke law of Biiglai)4 on tiiis subjeo^ 
our Iaw«(Aie Act. of 1164) settles ^b^ qoestioi^ tbat'ereigr 
adBmustrator, guardian or trustee, is entitled to oompensatioa 
^for^beir care, trouble and attendance in tbe exeAttjon of 
^iiP/nr^eAJier pf ibeir several duties and trusts;" and tbe 
Court billow did not err in 8o*deciding. (Cobb's'N: 2>. 304.) 
• (]8.] Tbe effect of tbe decision below was, tbat tiie trustee 
•irf^t receiTe such compensation out of tbe corpu8*ot tbe^tnut 
4imd in tkis case. 

.Tbe general rule is correctly stated, by tbe Counsel for the 
plaintiff in error. I| is tbat Courts ^f'ChaAcery will not allow 
a trustee to encro%cb i^pon the capital of a trust estate, nor 
sanction an expenditure exceeding tbe income of the estate. 

BatHbis rule has exceptions. • If the commission^ can be 
paid ont of the income or interest of tbe capital, they should 
be so ))aid. Casto may 'occur, bbwever, wbere this cannot be 
^n^, and, then the commissions may be paid out of the body* of 
\)ie fund. Suppose a t^nistee is appointed for ojie^year, to tbe 
flMmagement of* a large atfd trttnblesome trpst property, ooeu^ 
pying mi|ph of biBitiifte and care': and yet, from some unavoid*- 
fble cans?, (notarisiilig from fault of his) no income is produced 
hf it during the perio^ of bis trust, an<f uf) to /he time of itt 
Mrmination? A% bis settlement with the ceitui que tru9ty bt 
ifould cerlainly be allowed compenaatiqn out of the corpu% of 
tiie fund,' or there would be; no remedy for his right. 
t^Bhis reoord jyesents a case of sodewhat similar t^xigency. 
Vlfiem ♦was ne ftmd provided by the will, specifically, out of 
iriJIich this '<;ompelUiation was to be paid. It had to be paid, 
Ihen, eilb^ out of th^< eorpu% of tbe fund .or cytit qf the inters 
flit Hm anSmer oft Mrs. I^ter, the administratrix, shows, 
Aat by .the durection of«the sdrvivhig tiwtee, Dani^l GrdM^ 
(wlio ha^ been removed and is libw represented bf WiUiua V. 



9m ^j^iffiMfi co^is^ 0]* 4mtmA. 

BiOme^, tbre plaintiir ih eiTQfy)'hdr istesCate, if adftMoiilMitor 
Q^tke deceaAed tntotee, Thomas OfrfMy Jt.^ paid oat t« ]in« 
ifta/tha B. Gra^'ty one ofiihe •omplainaxits^ mi the asl<o< ^^y 
ttwty the sum of 91520y in^bierest on said tAi8t*limd, wtile 

reserved this claim foi; commissions, Aoi But he idfd yi sUuct sj l 
by the trustee to pay it over, atid he did pay it to the eutui 
q^ tpAt. . • . 

It will be'r^nembered, that he was not acting a8%aist(to ^t 
Mrs. Gran£ but as administrator for Thonuis QranL^Trh, and: 

trustee ; feeling, perhaps, that he had no dght to resist m^ 
order, or confiding in the belief that the trustee wofild see jitt» 
tice done to him. Thus, by no fault of his, there was no fupd 
kft out ef wJdch'tSiese 'c<vnmissions coul^ be paid, ezdepfr the 
carpus of the property. In such case, ypon the principles 
which we have r^cogniyed, they may be paid out of the capital 
of the tilist fund. Especially is. this Suitable here where the 
cestui que trusty one of the <somplainants, has reoeiyed and 
enjoyed the fund in the shape of in^me, out of wlpch CoL 
Eester might have reserved payment, and "wh^re. this intereslf 
out of wliicll he might otherwise have^reserved these comipjj^ 
sions, was thus-pai^ by the dir^tion^ of the surviving /trustee. 
It do^s liot seem equitable alid just, thf{l^ uirder su(^ circpmr 
stances, f he cestui^que trust, andtthe fepresen&ti^e ofthi^ 
trustee, should compA hidi or his estatf to respond tathe fi^ 
amount of the ten thousand dollars. • • •. 

The interests of the. remainder-men is ajiother thmg. This 
is not a proceeding by them. > If t^ey have caupoy or m%y have 
-> cause to t^om plain, - agail^st any 'one, (which ^a by no^usatis 

decide,) it should be agaitist that trustee by* wliose dijoatioto 
tbe interest was all pai^out to th^ cedtui .que tr%At; ^nii d^ 
law aUowit\g cbmnvssions to the truste^,^ and payment of aa» 
penses to Ool. Foster for his management of^e^nrfd, coui4 
xibtbe cairried inlo e^Roct, wi^fiut eneroacldng tin the^bodjiiC 
thb fond. . t , * • . * . * 

These expenses are like expenses of aduu9istrati^^a4l'^*7 



COLC^XJ^j JANUAJY TERM, 18 55. 42T 

Barney.^, vt. Spear, kc% 

1 , 1- 

"^^mm^famt be^mid/' as this Court decided in th^tme of Wit^ 
^iamson w. TWMrfne fWtfe; (U &eo.i20,) "whether enBiigh 
h6 left ^ satisfy d^bts knd legncjes Or not" 

JbdeedJ one of the answers insists •that the reasonable 
ehargesy commissions, and expenses of Col. Fbster in the man- 
ajf^ent of t1)i8:{nndy,while windiiig up ihe ^Bslat;^ of 'his intes- 
tate, T. Grant ^r., in* collecting* the not^ lee. fhich duty 
DaoM Grants ihe surtiying trustee, indisied he should take 
itpwx bims^ fully anounted tothis su^ and llfajktfit mdkre- 
taifted to mpet these ch8urges> &c.** This sextos te ha^e be^n-in 
liie issues 'presented* the Jia7,,8nd if life Jook upon Qiat feature 
ft the fiiarge jipAe^ considera^on^ a9'tieKYered meundum '«ii&- 
jietfi^n maUtumj an^ i^pfy it to the daim of Coli --FosCery^ae 
sAauBistrator of Thomas Grants Jr., -for As* deryiees,-. commisv 
fl£i»4^ ftc., v^ the management *9f this •truft* filh<L'it*vi easy te 
s#e* that Iha Qpurt^wal nghf^in faoldnf ,. t\^ under the circunr- 
S^aoeesHo w^uic^ ^^b^n^ alrdkdy f eferre^ ,0ol; ^ost^'s r^pe* 
ge&latire i^as entitled to tbe compeiAation *Ait of the Jbpdy of 
fteftni • , • 

*[5.] It w/tfi not mror in die Court to charge *tk& Jury, that 
two* and one half por Jent. for receiving, ^a^wd^ sdm foFpay- 
ing oift, and ten per cent on it^terestnnade, ^&o\Sl be a reasen- 
able Gompensation for fhe tjruMee. This was, uf effect,* no idor6 
* ti||fes»if he h%d ^id thsit Buch .was what tiie ilanc allowed ; for 
t|hi(^ the laiv* gave the trustee for services f Aidtared, it *wss e<9r»> 
tainly reasonable l\e dioyld have -for them. ^ And '.the Court 
%(Hild Jiaive beeif undoubtedly pght iil t€l]big* the J^iry ^riiat 
jOib kw 4i<l ^allow.* 

Lookiug to ttie facts of die oase, and iqpplying the^cl^^rge t^ 
ikef^^ ^ na j^ood ground for c<»nplaii)t 

liet^erjodgtnent W affraied. ' ' • 



^ 



■ • • 



m- eiTPBBMH- CQftmT* Of 'OlDSaU. 

:— , ! . ' ■ * «-* : 



Keaton teoL v*. "Rie GoveniflT, «w of, Ac. 
— « . = 



'Sc. i48.— rBqkj. 0. Kbaton and othearsy plaiBljflii ip eirOry.«|bi 
Thb Govbbnor, for the use of Bzek.*B. StocUUrd, defendapt 
in error. , . . • - • • • , 

[1.1 Wh^re^ in the oi^inioo Oftly Court, the evidence, as it appears ia^ie 
Record, is .so 'slight, and unsati|factoi7 as notf to authortse the verdict* « 
' new trial should be grantkl. • . 

ifebt Oil !)oVid/in Dougherty Sop^npr* Court. Ttied befinre 
Judgb PBRki^s, KoTember Terto, iSs*. * . * 

TJm Was aH action agSiitst Ihe sureties on a "SherifTs bbn£' 
ffne ^reacfar alleged, ^v^s a failure' lo levy t^o Ji. fas. in fi[|vor 
of Sttxlda^. On the .trial, the original '^» /A9. issued' frop 
Baker Snperjdr* Courts* were DTered in evidence* Objei^oA 
"^^ras made, that they ha^p^ bieen*.retur9ed%to tflSce, were p&* 
per^ of file^ aAd'couId be*proven only b/ e/Anpli^cation of ^e 
>i^h4l& Tecofd. * The* Gourt^ote^^ruled*thd objectiod, and titd 
soreties excepted. « \ - * ' 

Tha folleWiil^ lettei^ from plaintiffs' Attohieys tc^tfae Shcdff, 
was given ^nevidenc^i: * • 

Kyoxyiw^B. June 10th, 1841. 

<^]>EAR Snt:iWe have irepeivc^ • $53b' o^ the exfteiftibto ' 
Szek.iB. '^toddair'd' t^. Wilqon*^& .M&this, and vre give ^os. 
Howard, of you? county, coYitrol of jihc^ ezedutions. We ^ftl 
be Dbtige'd* to y6u if you will make a cal^uktion of the baLtmoe 
due on the executions, in principal, interest, grot^stlee^ aStt 
easts, ^nd take -Mr* HowOnrd's \roi^\ payable by tlie IstlJanu- 
ary next, and keep it ^ we see y^u. Wp wiH satisfy yoAffr 
yOur trouble, and see your costs paiQ when Wf me^"wiih you* 

Signed, MAdOlf k MAY, PFft' Att^ys-'' • 



The Court i^efused to charge, that this letter relieved the 
sureties from liability for the l^eriff*s failure to levy, but 
charged, that if ihe^Sberi^took Howard's note for the balance, 
and delivered it to plaintiffs' Attorneys, thin he and bis sore- 






Keaton UfiL m. Th% Oovfrao% u«b of^ &e. 



m ■ 



iiiyWfm r^eredtf. Qft«rwi%B, A^ were not. ^ ttift char^ md 
^QPid te> ehai^ge^^areaeeSgaed as-enrror. 



• 



H. Morgan, for ptainiiff in error. • 

A, F. Ltox, for defendant in error. 

• * 

Bjf tJle Court. — Starnes, J. delivering the opinion. • 

{]1.] Taking ttiia record for oar goidb in tKia case^ oar opk^ 
kyi 18, tbAt tKete was not aoffioient evidtece before thb Jory to 
antkorixeaJl^coTArjrlby tkefjlaootift ' * 

The letter of the ^A^ttonieys aothorizee th^ inference, thai 
tlie*S^)^ff wapjdktlfialAe in^U£^)^ijig the farther exeentfoii 
of these jft.'./ar. and torningHhem over to Mr. p^warct 

It is admitted for th% defendant in error, that if Ue l)ad m 
done, he wodld no longer have be^n fesponsible ; bat it is in- 
wMhtwi the reoeiptfor twe&ty-<d^Uar9, given to him hj Mr* 
nWy,^th^ Attorney for plaintiff in exeeation, anfU bearmg, at 
dale sabseoaent to th^ letter, viz : the*26th day of May, 1842y 
siieirB Ai&ihe; Shei;)^ did not torn oyer^e JE. fy$. to Howi^r^^ 
aft legtteted, but retsinM jpossesAiDtn of flida, and shpnld Do 
Ij^^9jd8p!bB4|^le«£oT a fSulure to use diligence fai mayng the 
moQ^'OnHfaem.* * * ' • , , 

H'ow the receipt ns dated at a petiod snbseq^ent ip the expi- 
ration- p^this Sheriff's term of offi^. It is shown by nothinff 
in* the cas^, -when the payment of this-* twenty dollars was inaifo 
to him! More than seven years elapsed after \he date of the 
receq^*befi>Ve^thi» action was brojaght on the*jbond« \Jn«kr 
these circam8tances,«we feel that the Evidence, as itTeache»a8, 
withoat farther explanation, i^ scarcely sufficient to show a 
wapl of diligence on tha part of the Sheriff. And Vith the 
matter piipeeiiW by the slight and unsatis&etory evidehQ»l>e- 
fore OS, (which is all that we can recognize, as having been 
btfoA. the. Jury,) we hesitate to^'say that ti^e Jury were jus^- 
ahi^ in- ^holding 4;hese securities li^ef Upon sach evidenee, il 
jslMkel Ihat-^ caiae should *g6 baek fyt a new*lrid« . In^thik 



1 



m 8UPBEH& OOURT OF GECffiCFU. 

■ - ' * - - ^ - 

Badd «< oi. M. Ctopton etiol. 

%mio^ if 4;he plai^tUT in ez€ta1»bn J^e en^itl^^ta recover, «a]id 
can flhcvKr it by sufficient proof, he may yet do^ so ) ^and wiU oiiFf 
be postponed In such recovery; whereaft the mischief tea^ be 
irrqMuraUe if the judgment below is snstahied. 



» 



« I 



iko. 4Ai — ^Wh. a. Bsito^and others, pkdntiffii irf &rt6ti^ V9. D4- 
vip Clopton and others; Vefeiidlntif in er^r. . 



• 



^.J ThdMtoto of an intestate djin^wKhQtttwift^orchUd, or tlie46to(i^^ 
* chfldrco, and without father or moth'er, ^roth^ or8i8tery^)ialll>e ^strilm- 
ted to a(d amoQj^ all the ^cousins of the decked eqaallj, inclading those 
* *'on the maUmdl*itA well as ihe paternal side. 



• • . 



Ii^ Equity, in Mjoscogere " Snpe^or Court. Tried^ IMore 
#adge ^oigRiLL, Ejecembep Term, 1854. . • ' *' 



• » 



• Hyrtin J. Eendrick ^\f^ leaving his c^intf as next of Idn. 
dn. ai^ fbrdirectioa file^by ^ Wmiiiistrator, thi <;;odrt 
cfaarge'd the Jury, that cousins on the paternal Bidirt<K>k in ^wt^ 
eren^e to and the exctu^on of oouuns on the matertafd si8e. 

.' ^Hiis is Uie only error asrfgned. 



• • 



,. #iMlge Benning havfcig J(een of Counsel, did Qot^^lesidQr jn 
this case.. * • • • 



# • • 



fNORAM jk Crawford; Qolt & Welborn, for ^aintiflb. 

• •• 

' Dougherty, for defendant. * 

Byik$ Oowrt. — ^Lvmpkut, J. delivecing the^Sniflpi. 

, [1*1 The only q9estion made before 'this Court i^ whathsTi 
in the distribution of the dbtate of anintestieite, v]|0 dierleanq; 
rflMier ictfe ^or ddd^^^ther iior modier, brtdwr* aof lifMr| 



* - 





: , p ; ^ : 

Mr. 1^ TepmfNiiMtiv^ Ibereof, the coqsiiib of the. paiemii;, 
^b§3l inli«at to i& exclo^^ of Uioeo of the nwieiMl line,? * 

Aackthe.aaswer pmt d^pd uponrtbe ooDBtfuction of tbe^ 
*Aet of 1804^ /md^tke Blatxitee waendalory th^^eto. 

By tl^ Act of l9C^9 it is prOfided, t^t ^^ wbeii ajuy peraoo, 
hdd^g real or perBoiui> estate, ahull -depart* this life intestate, 
the said estate^ real and personal, shall be considered as alto- 
gelQer of the fame'flat^b and npon th6. saine foot^g. So t}ie^ 
IB <yise of ther^ being h ^dow and child* or children, they 
shall draw equal shares thereof, unless 'the widow ohaU^prefeir 
her dower — ^in whioh erenty she shall hare no^ng farther out 
of the rei^l estate than^such dower :* but shall, neyeFtbeless, 
receive a (hild's pari or share oat of^e pelsonel estate. Xnd 
in ease anj^ of the children 49hall die before the intestate*, their 
liofi^ ^eseendantsshall stand in their place or stead. In case 
of there beinj^a mdow an4 t^o child dr children, or representa- 
tiye of children^ then the widow shall draw a moiety* of the 
estate, and the other moietj ^hajl gS to .the npxt of kin in equal, 
degre^, and their representatives. If no widow, the Whyle 
shall go to the chifd or chiloren. If. peither widow, child or 
cluldten, or the legal representatives of the children, thq|whoU 
shaU be distpbuted among- the next of kin, in equal degree, 
|nd their representatives : but no repre^ntation shall be 4^- 
mitted i^mong collatenils, farther thav the, child or children of 
the intestate's brothers and, sisters. Jf the father or mother 
be alive and ^ ^hild dies intestate and without issue, suc^ 
fS&ther, o&.mother*in case the tfather be dead, and not *other- 
wise, shall come in on the same footing as a brother or sister 
worid do : provided^ that silich mother, after having intenn^r- 
riedv shall* npt be entitled to an j part q^ proportion of the es- 
tate of a child* who ^ball die intestatQ anck without issue :• but 
the estate of such qhild shall go *to and^be vested in the .ne^ t 
9f.kin on the side of the father. And proyided alfo^jHiAt on 
l^e death o( the last child[ intestate and*without isspe, the ipo- 
^ejr shall takp nojpart o'f his or h^^'estftte, but the same spa}! 
J}, to a|i^be vfsfce^ in like, ij^a^iier in the nevt of Ua on the 
fhther's side. And fh case a person dying il^out^igsoefkar 



:• • ^ 



Stef .{n7PlE)SKB 0(A^.W ^OfiGZA.. 

■ ■■■■■ ■ ■ ■■ i' . I 1 .^ ■ I ■ . J 

Vbg l^rothero fnd nisters <»f ;die wbote ^tod htdf blood, tibwn fli^ 
brothers and iBJBters t>f tho whole lanS the half blood, in the f^ 
temid line only, shall diheiit qqifaUy : but if there shall b« no 
brother or sisl^ or isdoe of brother or diJdter,'^ the whele or half 
l^lood in thQ«paternaUlin^, then those o(*the half blood and 
their issue in the inatenftiUlin^ shi^ll inherit. Vhe n^ott cf kirn 
, [9hall he intiestiffated iy the fallowing rules of ctnBongumitff^ 
ifiz: ehildrefvshaU be^jitiar^t ; paxents,^ i^others and nt^r$ 
khall he equal in yespjtt to distrihutton ; and cousind shqfi he 
mxt^Uihrnr {OohV9-^Pig^9t,2^1-2,\ * 

'This act of distributions, it iirill4)e p^rcei^ed, is almost a lib- 
eral triemscript of the English Statute ^22 and 28,. Okarle$ S. 
irhich was borrowed fromtbe 118th *^ovA of Justinian. And 
it^s**admittQd on all sides ihat in the distribution ef per$onal 
property, both by ther Civil and Common Law,' the "prefef epoe 
of males over females is superceded. •- To fe-estatjlish. this rule 
of feudal origiQ and policy, sg partial, unnatui^ and harsh in 
•its principle and* operation, would* require language so plain 
that he who runs might read, an{[ tfa^ fool and way-farer Could 
notferr therein. Do we find l!uch terms in the Act of 1864 1 
On tYk contrary, in ij^e last c*lauqp of theft Adt, have not the 
Legislature, declared in woi^alhe most unmistakable^ that cou- 
m«; — all cousins — maternal as.w^ll as paternal, s^ll be equal 
and ecfually near to the*inte8tate ? By what rig^itor auUiority 
does any one dare to interpolate /Mif^na? into that paragraph? 
A^d yet, it musK be done to make and maintain the case of the 
defendants in error. I am unable tq discjoss this pofnt — ^it t^ 
quires no discussion — h admits of none. And if thus palpaUe, 
under the old law, how mAch more "So under the subsequeiKt 
legislation giving to'the widqw the whole estatCi boA real* and 
personal,^ of her deceased husband, dying intestate* and without 
issue, {Cobb*8 Dig. 2*25) ; repealing that jiortion of the Avt of 
1804, proh{]|Htinp the mother from,inheritin|;( froiQ the ItM 
ohi^, {Cobh's Dig, 296); and also^ that provisioi^ of the A^ 
ql 1804; excluding her frofi inheriting firon^a child, after hat- 
ing intemaijiedi unless )t shidl be the' IftAt tOr oSdj 6^A* 



• • 



» ..^L . ■ ■ L 






^ 



"P^^w tt4^ i^tBj that •xtreti^ ix^soei^tgr and inVflisititt^'tf 
it eTery^thing fli^ so ^Iten^meSt. logland rfbd t&# €oJti^ 
nental Nati^ of QifOpe^knilreellecl tbeir fhefet'eace af maAea 
to famalea. jAkI t A« Red meii of thi$ wupittrtf $tiH adhere to 
Ukufj^mftiee. ^Otr farefie^tM, MoariDg *th^ eMnTpla dF ei^ 
Ifcer pfie*or the othar, (as k not.uafl^qment f^ Ind^Vidnii^ Jbo 
do anKyigais/inthe til8(i;^>Btian of.fbeit {arof^ty, even 4o Ihia 
day,) exhibited this prefek*eBce, in sone.^'espeats^ in the Aet4f 
I80I. Never to the extent nor in the particular instance 
daimed in tUs de^lHllpD. Vhe Acta k&&£6, 184l,aild 1848, 
to which I have referred, show^di^ inore /correct; jhst And «■** 
lightened policy. It is, after all^ exceedingly difficult to thro^ 
asid^ the iropreasions of edujfl|rt}eB. and habit, i;^ f&vor pf Ipng 
established ideas* So natat'^i^aiid so pawerfu) ^e th^^ tha( 
time alone can eradicate iVm? and cause us to realize, that a 
cousin on the mother*s sidis, is tfncT of tight oug^t to be, equal* 
ly near as a cousin ob tke father's side I. 

Col. Jones sugge^s|tba( the /Let 0/ 1^04 is»oarefully fr^medb 
SQ ^ lo pravestt the next of km t\ t^e 'wife froia inhfeitting^ 
under %njr ^rcumstances, morf than^a moiety of the husbamcfa 
property. Heilc^, if he died xihildles^ ^e too)^ anly one half 
of hisj^state^ Md th^ other haB ^r^t t/} hiq n^ ofi ki^. 
Hence, also^-she could nat inlverit ijc^m l^r last child, witk. 
vhom $he Imch previously divided .the ei|tate. An4 this is tru|u 
It is equally true mh aj^arent, however, •that evan under that . 
Aift, to 8^ noib^qljg of its (^ihsaqu^ABodification, it waa cq«- 
teqipla^athat one half *sboiM u\tpDat^y go thr^iigh t^ie lACa 
to her aelatiwes. , iyo.w,.Marftn J. Kpudrick' ^laving farviv^l 
both father and njoth^j*, is-j^ pot fl^r,^ that, to poatpon^ Jm^ 
matemaVcousins, would be to carry tfie whole estate of hi^r far . 
iher over to his kindred, i^nd thus contravene tbB manifeat in- 
tent of tke iMt of 1804 ? •hiViiii^ wprds, the design, ^n ef ; 
that Act, can only be eibctuated by a distribution among' M 

Ibetoiains? 



• • 



.• 



TOL. ZTn-M 







^r.:i*- 



t •• • 4 . 

^0. 4^.r^Bf &f cOFLim^ admimatratqk .&c. j^aml;)flr ja ,enpc% 

[l.J An insln^n^^iit, in form .0( de^ ajicL coi\yey|ng ^fcBude ^re^^nn^ 
in cons^e(atio9 of the sum of^ve Ipindved dollars, to be deUv/rea at the 
#eatlr df th? selle^ is not a testSmtfnt, and therefore rey^cable : bi\t is, A 
all intents and parp»8^« an HEbsolute disposal o^the remifinAr in the nc^ 



%nrQ, aftemthe Ufa estate has^ndedw • * 



Trorei^^ im Chattahotob^ Sapevior Comt. Tried befoi^ 
ShHige WobAill, No¥«nber Tepa, 18541 ' • 

The soDe €(tie8tion id this c&de ^A^aSf whethto^e following In- 
9trdm^Bi;» was it deed, of a testaipeotarj paper : * 

Oboroia — ^]tfoB€OGBE CoimtY : • • 

Know all men by these presenA, that 7. Hardy^McGIawn, 
of th& said Cbunliy ht jyfoseoge^/ for and h consideration ^f the 
BiJin oT ^e Hundred DaBars' tA me in h^d*paid, By my sen, 
UavM MWGHawn, tEe receipt whereof i6*hereby acknowledged, 
have bargain^d^ soIH and conveyed, and 1^ thec^ presents So 
bargain, s^U and coiyrey*to the said Dadd, UU* heirs tod as- 
ri^d; a cMain negA) gifT about 13 years old^^of black xsomplex* 
iahj named Hz^ to be delivered to the said David afmy death, 
aiid^Dt befoi^. Adu I hei^by l)tnd ^jcbeirs, executOri and 
adhinl^Vfttors, to w^rhkftt f^nc^d^f^im lihe rignt iftid tifle in and 
% -to {ne slid i#gro giil, ttr ihdsaidllavid, ffom the claim oFany 
person ^ persops w)iatfiK>0yer. 'in witness whereof, I have 
. liek^te det \hy ban J lind seal^ this 1b^ 9th day 6f I^Tomber, 



• * 



'.. *^' • Us 



; • HA|tBT*« McGLAWK,fLAl 

\s^ u ^ « * . .•• ^ giarik • . . 

her , • , • 

TiBty Mabhia X I^owblu 

mark. 

Dakkl M. Hall. 



Alb 



QOLumrtr^ uwoass tirm, laes. sw 



MoHlAini, adm'r, 4ke. m. Mt^$mtL 



Ws igplnqMiii ipw fecoHed apoB the pnobale of one i# 
tiewHpMM.' * ^ 

The Ceorl below held this mstmrneml tp be a deed, aad tliit 
•deeiflum le tetil^ied ae error* 

HA»RiBOir, for plabtiff in ^rAnr# 



• - 1- 

Stitbh & HnLy Cm* cTetendAqt 19 error. ^ 

Bjfjfie d^.— LuiiVKiN,«J.«deli^Bring't£€i q>mion. . 

[f .3 Thie ilMromenli ii, tObal} kitemts yti, pnipoeiey a sah^ 
for a nldabk oonaiderf ^0% (|5p0) of a 8iay% the eeiler Bi- 
flervug to himaelf a life estate in ihe py o pe rty. ' In othelh 
wordfi it ip {he porduwe /i i3i% remainder^ alter die life estif^tt 
has terminaitad. Wa eonoor with the dif enit Coort, tha{ tilt 
IM^per wBS.irrei^poable and^»t testaigeBtsty m its chaiifgter. 



9 



• • 



k , , 









ILALL' 



}': 



• • • • ^ * % ' • • • 

• .• •> ■ ■ ■ **« ••* • 

• •• •SUMtfME; (X«J»«> OP GUftROIA, 

GBl^ Coym^lieef^ppiMBted fit *th^ 00^.^19^ Idie dei^ai 
90BSBT S-iJSali^ &qf a xaevi^r ofi|iu6 tec, Ji|^giea«^e to «iW 

iQ^ of ednoatioy, with appreciating^ and ovltqrmt^d taaU..ii 
\ymg, q^ a»>niqy5*p9 i >i oo ing4i ]MlUtait imlgfaiataM^ fi^ar 
afd <yifk fyri^p|ioi»of jhe hcwittd, »ii4of igpn 1 iing, *timlb» 
fkcnltito in a deg|p|^wUpt«Qi^^l^fJ4%^»raokjM o^^ af iW 
l|ftl.tbMviftof^««^^ .•, . ..• .. ^s 

2d. T&at we esteem him as hfving been a profound la^jifif 
]|i8 fnffm^fdi mi(fit^ i^^f^r m^4if hie ■gnu Ifriag A his 

^hU^) tv€ a ytmng^DMUIr-T^ IS^^^ V^^ hi» Jaaadl 
emnjte and T«fHpaAi as to .^asMe hj^n ^ o«p|iat^y nt 
V>*^7>^^ 0iiiyieeS| with ^e aJ^lHaMpbeiS A^ ^f b 
a>pl«a^s» liQind l»t iM^fy^ls. Hi%«tiAMioif i 
soand, discrimiaauDg jndgmehty industry, leal and 
H|W, yet logifal qr«t(|ry> hadtpk^if^ ^/>^'» ^^ witi^ *e 
£|aft€iim «f )m4i0s ¥li«^« ]^^am4«dir«Miit.tlMU>eliii; 
that hadjh* b^Nn^tpyryd^he iisnM^ liaT» iisfUcLits^rieheit .f^ 
wards, M<^ »t|i^ its- h i g h fi fc fc saa^si . ^If^Mightad m M 
kfw $a(d.stadii^ i^.iiot alMe * ^ vaaMMf ssyhfag a» in*, 
•oifsi^ .a8i|NrepHiiliry«to p(i li t iaa lJifc»Jbai>aii s ws n ag i a t^ 
self^.frodiiolivSLilf the pawBfllAy4iailam»aliqnsliipa|i^i. 

^. Thft he if^^i t^ l^sfeaiarltiaUeiis^ soA>tnpn^ 
i<t^ -Wy »^k» gwij^ 4n4 aiiB»naiS|itii0^ kiadAnd Ubim^ 



Tcibmte^ SMp^ t9 pt'U^natj of R. ^. HflU, Biq. 

; • • ' ■ 

m hia foeling^, a reepeetful soi^ wa, tfflbotioiiate brotl^r, and a 

tender husband qpid pi^nt. 

^(ih. l!l^lr we^deploK^ in his d^i4&^> ptile&iknA l^Aet 
withdrawn from the ^novaUe compeiition and fellowahi^ of 
tbe lair — a man of fi^nvi)^ stitcken and prostrated iriien but 
beginning to ascend ^nd a I s wiy e r wUTseemed to be marked 
and sealed for distinction. 

5th. That when one who is onr folkw is cut dewn by ois 
Bj^e, ia tj)ie j^pid^ of bis inteStot and |be*Ai|^Qf %iB mafkhood,* 
by Sim whose fxygfp^^ aap infl|^lijile«nd whose power is ir- 
resistible, remembering that w% too, are mortal, it becomes as to 
•e6d;Fe'the«waimiBg-i:to be idlAnt in aftey ;^4 ^ht revevAice 
te«>neede the sova^igutpof (|#d^ amd4n*the Ijght of that 
FeTelatioii«rhicb ha ha^ teuf lis%f(ei^,^toyp^f re m li|i|foirdea4|. 

6th. That this Odtarf and bw, as ^ mark ef. respect to 4;he 
wmury»of»oqr deeeaseckbtotMi^ ^nU«weAi irt^ oi^. Ae*let( 
iftn»ier8Ajk|B.'* • , « . •. . •• • 

Oft iifltien eC Mr. Pe^ ^ckr^ tiMthsM roplvBieM be 
eftteM*<0B tbe ft^mMi^f Mifb ^|>eftr^ 3nft t|«H<be QtbA 4o 
tftmisli »eoy ^ tWftaWy 6f'|htf d qw a s il A * 

JTi^ei Lumpkin responded OB b^ltq^ HJl^^ da«rt^^^ 
Ifws:. .• 

•Dtriftg Ae^ovie j%a^t^ Z'haTe been kefter«i #1*9 s^l 
ea Ibis Benehf 4l^ often ^i 4]^e*a«ei/tionpf tbb Com, beUk 
«MMed/rom.it»«rdinary .bnsiMss, to tfie* %oi|emplatio]i««f 
death! • >rili^w dM^ bnef^kdMsd, ^any of 4Wbr^^ 
Sglila^ tiN>8»*» h»ye beem^f^pthgufched ly Iha icy beadier 
*r 4mlk4 .. ^- . • . : :. . • 

aMr«ehrtbe i * yh iif gsflhtaed^ Mie^Wb llie pael ye^ 
TtoiwiwwT^ flaiftBqiii^ fMueii Iei«vM,tii4MULiJ0K| K^odb 
mA QwhDtm liaipiBg Iftekr.tet «vMilhiy,4eepb( Whaba biil* 

liiftt«)BeftBlkfi4D4lMiM|VM'fiiMMM pvefessifftal fmiQitoll 
* Hew iaA —d fm it i ie is bdtoan ii>! Pirfc^M^^NiiiMl m^ 
flMia imutke e(ae9i«*4^owoeft*«gp.of H a ii u W hi^. slMM^mi 
we are-^-t^ griAefcl 4sftftBla()ieii*e# BftAe. • leu Ae«sesieb in 
a^MPMbrf deslTHalN^ 4i% ahsays^near^ tor de tb^ fi^ 
iporfs! Lifcris < fisinUpMi fed by iiiieifcaai n%mm^ tfcei»er> 



....*:» 



mamjjMai TrnM^^^sm 



* * * 



8ind*liilMa8,««hfttipftrtiMiigde/if^^^ 'iiisltfiiilt 

iMreratraage tluit we^e^mpA BaloDg/tibflntlhitipedldftaBooal 

•Bow^Miljr <lM*de«lh.6iiiir4li]B itewlyv ft|«i#il*iwirld ! ^H»# 
eeasele^ his ravages ieyfr«uioe1 ^Ofiehnndr^aaMMitygeii^ 
tBi|tioD8rkay« almidgr^bAeD 8W#]^ W^v4b ^ ^^* ^*^^^ ^^ 
l^dbe^ are but a bMidJU to*the tribes't^af ahwiiyer m its bo» 
•on! • ••♦*»••• 

In tlie oataraf eedVub of Ad^eiitBy th^thoogbt inagr well lun^ 
been indalged, that the respeethre plaoea of the deceased MAd 
Btyself would haveHbeen changed, and that he finighc, at soma 
fkfciire time, haite Been called npon«to peHbfm a kindr^ ql | ee 
lor oiie*wfao was^so anibh Us senior in years. 'ButProrMeiM 
has seen fit to order it otherwise. Whovi ^he* gods* lore Ihey 
take earlf to tjjiemselves* Abel exp^ted, no denbt, to bvry 
Adam ;ind Eve: Hew Ilt^ did these fifal^ fehd parents, an- 
tieipat^ the* meUncholy duty of interring their murdered son. 
Ifc » a r^f to the aged/boweddown tndev the* weight of 
ihree score years and tea, to pass into "the quiet shmber 9bA 
tranquility of tfie>graV^ l>ei^ i»<o6ilipaMliwly ef but lifj^d 
eonseqaencf , even to the middle ^^g^y ^ho ^tre. ^r on ihel^ 
way to their final repose-Miho have but little tt> hope or ex- 
pect fttei4he ihtare^and who are already beghming to realiie 
that tbey are-raplBly ApproacWng the ))erlo(l when they dith 
say of most bi the things of this^rorld — ^^ I laVe no pleasure in 
thMi/* Such woi^d iMi hb wsry relostadl to thh>w ^down the 
bucden #fIi|(paDdb rest wftk those who A4 not its WlitvystoroM^ 
But to see the yoifig man^ust springing upon the arena,, buoynwt 
a9 the oourser as he^nttrs 4ipon the trade, out f>tin the midst 
of iiis'dayst a| ^ moneni wbon ire began to alblicipate *iie 
fldl Mate oPthe«ooii, btf-Jtkfbnghtieorusovlions of ^'riau^f 
81^ well ttight'Biieklk spc^ytaAft suffuse wi^h sympath#tie feira 
ihe ^keek of the Ssf ofi €bd. 

•fneir t^e mem of tke deaA^* Buj/Hwirs *6feirt; ^t teigMii l t ^* 
XM»««M#e*eh«ljthb luiatij, w»tofcad^|>eiiitas>—iaii*r 
con8tanx»atioii; anditw»M>nelkbd^.Hbi»*irlil4liM ^apr 
bgJMW^ir §fm, j^ iil4lB giirtiMin. W htm 



, , r^ : , 

Tribate or Reject to^ MmMt •f R. 8. mt^ Bw}. 

. t » ; I . : 

« t 

mmoBitiim, mAken tke Hdpe*of the BAue of 6^:^08 mm ^kem% 
im^J stKTck 4ovii,*an4 the d&stiqy^of ^lanee diarigieA Sor att 
tfftet'.tiiftef We Aotigbf t)f the.yotilUbl.hero of Antwerp airi 
▲^ria; t;he*p0poti^aael ^9 hid ooanftry attd feU saA that Ml<!ii 
a bfiUiant^ituife^was. thus ^pihne]j.c^ ofii • 

. i will not uhderta]|||tf> inprtMy the All^tingiaskcd talwita i^nd 
Tiitues o&oui: iitpar^*{rieiid. l^UsBa^ Iwew him well,- Aid 
its sympathies 'ha^tnipgled wilih the tears and sovrbws that 
Qmbalm lus metnpi^gr. .Th^ eloqoeift tribi^ jtuf %de)iTared, is 
heaslSy concurred in bjthe C^UKt. We can bear our testi- 
B^onj to the jttstieaof the eulogtum*¥chich has justbeeb pro- 
nonncecPupoiv the* Social, moial and profe^ional* qualities # of 
the deceased. 'They ^1 long 1)0 oherifiihdd wkh grtft^ful sat- 
isfaciion by us all. • lie never discussed a case that be did not 
givje ^'aid anilcomfovt'* %• the Oourt. • Aad i(*iB that tfutt 
gives to the Court, iq paying a t^ibat^* oft affeotiooate' vespoci 
to his memory, '^ a precious seeming to the eye." He was 
truly and emphaticaNy, in this sense, entitled t(f the* epithel of 
€mipiis twroB. • • . • 

' Robert S# HaU had a miad ^tfpaUe of* the* highest reached 
of legal reasoning; :an'd he -left* nothing vnexploredji belonging 
to the sul^ect which h^ d^cussed. He never skimmed, awalloi^' 
Uki^, ovei; the surface oft the science, but*dslighted inHraclbgle* 
gid principles to their fountain h^ad. tAmd the very difficulty 
of the task served but to provoke \ki ^ambiiion. «* * « 

His manned Was Itteinfus, eamesfb ant impresei^ ; IllumK 
naUng what Vds tiark anU obscure, sft with a flash gTlightliiBgL 
He would pass from kbyrinth to labyMuth, with a mind free 
fronl confusion .and yf^ the most'iniwetkri^ energy. His lo- 
gic ^as-^aeelneed with a'COgpu^ that bore ^M^ oimafd in 
one. eontlnned ^voam of resistless YH^gusteniatiMii In free8om,i 
a^i ftkois, and flu«i>cy, his dieft^onbae r^^emble^ the Alpia^ 
stream — ^^ Wave followed wave, nOr dptet jjto foi^^ in valb. V 
Hkv^iOMry wm as d u pl y o waad' attentive as^ hk jfadgmeift 
Win nfMi# Il>ka%b awNiriiig VattliaM> i» laamtd Hrt^psiwiiMe 
Iw^iferftl^A^tyilf ha4wir.reiA * * 



^ 



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TrilQite orB»s|«NM to thf Heoiory of R. 8. BUI, Itq.'. 



ooDtending with t\ie. \bst {i^sto of fte 9)ir; tei 
10 aaHer wkit the <ftUi mi^t be^ m age ^i exparieiice, I 
■Mer «|[laft«Mied the l«t«t (tppi^faoiBion »ihatthe werAA M 
OTtflMa ffi-\h6-stnig^e« fle iras on6 of Aosp^ men ifh&m 'tki 
whole Bar aad Bench of Georgia coiM Mt pnt dowift. jAM 
Ui MMJhnts, im^tead of chronicliDg^iieiKattacha irteh the la-* 
•oaicy venij vidi^ viei, w«re fortunate, indeed, if they were Hhf 
ttfiffHeA t6 worite, vent, vidi, fnettufui. * ' 

O j kt ^8 / taeat to see him W^le in' the ftrensic l^t^ 
iMead ef aksrmisbing on the* en6nar*8 oyt-poete, he *4id Mf 
haiq^taiey * for i monftjii, to plutige, at once, into Mtt ^ jtnini* 
wqtij deadlj breach ;" aodtf Ife 4o8t hie oaee — aiid wha^ law> 
yewBOt dlcnned, occari#nallj to tiie pain <f disiyspointpient ^ 
be pever faifed to enstain and adiWAce his reputation. 

fioBfiBT S.< Hall is another Ihrhig reftltation ^ the aheurd* 
ilea, Ikat i^ is imptM^ible for a van to le » ^evoholar and a- 
tjjUrongh^ lawyer. Who^hat erer lived surpassed IioiH Mant^ 
fiM in Jnrkpirodence \ and bowiewequrfled' him' jn general 
l i t watnro ? Are^oi the CommeBtaries of Sin ^M. Blaok- 
Siovft 4he Vieh repoeiteiy of the laws of Bngland ; kHSl ui^ 
tkey not, at.Jlke«anie^time,,mo8eb*ef fivretSnglish c^^n^osi' 
tkiwf Loid vSbMiWI Woelkd abqoei aH of &b eftlespofatibs 
inatfte Jaw ; and yet, he was the' familiar friend and literary 
exeemtor of Jh. Samtul John$on. iPway • wilk .^uch ridiculona 
pl^iidioto. Sir Jamei McIhto$A^*Sir S<m%el BfimiUy^ Stor^r 
WM, IHnehnejf^ Legate and a long l»t o8 th6 hri^test names 
in ff Britain and this country, give the lie to this opilffon, 
originating in the grossest igi^orance, anA too often fosteredfty. 

ahMreitfry. * 

Ifart o«r fiiend has passed fiOm among us, and he will ho 
•emno ipore untO *^^ the last day.^ At the early i^ge of twen- 
ty-nlM^ when all were logins to him wdth^gBeat fondness if 
eapoototion, this gif^ Attoiley, deatai^ uflqueelkM«ably, to 
he one «if ^he fint men of the ag^, haiving ahready Vindioal^* 
anoeesrfUly^ his drfm to ^qHJ»y wkh the aMeit jtf hk 
poMpiea, it SHWoned awifr jM U weaMh, wU beoor, f/4 



i 



Mt SDI'SBMth CeiJRT OF* QlR(fRmk. 

Tji^te of Respect to tbiD Meoioiy of it. 8. Ha^,Sc(|. 

, ■ i * . I. . > 



|l»ienr«pe iBTiting bU ontQtretcbed «rm U sdse the •piMforedl 
prize 0f bis lugk ealling. The ndUe Arctic, mth all her «ub 
lillitfiMied, andiber pennant ^ily^streaiEiDg in Uie* to^^e, has 
^one ck>^ to ia nnfathemable ettmi^, laden iNth hap]qr 
hdi^s and preeiptia prosnes. 

* Thi| ^^ys of Provifhinee are ioscmtible a|ld past fiiriiag <M. 
IMmnet walk by faith and not by sight. Hia vacant <^ee— 
las vacant Seat m this Temple of Justice, preach eloqaentlj.to 
iKS ifiat we too are born to^^. Day onto day\LttQ^tiii8 sad 
'Imthy and night»nnto night repeats the solemn loymiiig. LcJb 
thi$ thongbf 8a:bdue our -earthly' passions, und«tlunpinth in«i^ 
miicanee all Our strifes and eofitelltiens. 

To be left the widow and eiphans o&sudi a hnsb^adand^i-* 
tner, who can contemplate, much less calculate tha loss? Let 
Mb iged parents and* mourning brothers and sisters, not wiUp 
mndjrefuse ta be tbmfodted, beeause the prichB of their^yes and 
id thfir house is no mere, butrejoice lytther, that he iias Hv«d| 
itodsliU lives in the bright record /^hioh he has .left behind — 
in the RepoAs of this Goui'tr«-in the high regard of his profess^ 
ional brethren-r-in thVloice of die comm«i»fy wber^ hetdipdi, 
mud yt the meway^hh seeial'a^ domefttic vivlaiiiqs. • ' 

{^ tba. nefteltttiona b^ catered oik thd. i&inutea of 4ke Cbotft 






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til ti ^ 






CASES 

AHemSD AND. r?ETERMINED 

• « 

... J DUMB . , 

gtlPBEME COUKT.OF Tflj: STATE OF GEORGU* 

. -AT' Macon, 

FEBRUARY TERM, 1855. 



• • 



; 



Prfeseirt— JOSEPH H. LUMPKIN, 

. BBBKBZBI^ STAQXBS, ^Judges. 
HENRY t. BENNING, 



^'1 



iStembridge, plifintifin error, i;««**Jqhn S^TEMBRiDeE, te 
tnsft^ of *Sarah dtembridge, and Sarah Stembridge, d^fend^ 
• ante itt«error. * * ' • . 

[4.] A rati^Ofttion ^f p vt of a contract, is the ra^cation of the whole. 

In Eqnityy fronk Oa^ord Ooiatj. Dedsioa bj Jlnlgo 

In laSTj'tftovas Stefiibridge madd Us wib^ a&<), by tW 
llord^lliD tbeMof, bt gav^ to>fai»^ SOD, BOarj R. M. Sten^ 
bridgf, his^pfauitatioii, oompru^d»in lot '^l^md Bomber twehtjr* 
fliZ) in tke tfaiid district of Heoston^ County. By the first itcOft. 
of && wilkhe slttd^ ^^I iUow'my 9^ Henry R. M. Stembridge 
to give her (wife Sarah) iTsvpptfrt^nl of the pk^ntation, dvriiig 
her li& time."* Thos. Stembridge ilied^ and \m will "tas dol]^ 






SM SUPBfiME COURT OF aSOROIA. 

Hunter, adm'r> kc, vt, Stembridge, Ac 

proTon. Henry R. M. Stembridge Afterwards died mtestftfte^ 
and George 'R* Hunter was appointed, his admi|)igtrat<Hr. Th« 
widow of Henry R. M- Stembridge afterwards intermarried 
with one Jacob B. Nelson. «f q)m StembridgS was att>oint^ 
trustee for Syurah Steplbridg^, the -widow of Thomas Stem- 
bridge. An agreement was^iitered fito by i^ch Sarah Stemr 
bridge consented to relinquislji her c^Strge for support on the 
Itad, and cbnseoj;ed ^t it ^bould be sold by GreoKge R. Haa^ 
ter, as administrator of Henry R^ M.. Stembridge, free from 
all such incumbrapoe; and }n»connderation ^^reof, Jacob B. 
Nelson executed his bond to deposit in the hands of said Hunt 
ter — $200, to be applied to the si^port of said Sarah Stem- 
bridge ; and if this fund should be exhausted before her death, 
he i^ees to allow her the*further sum ef fifty dollars pn^r an- 
num during her life. ' Fifty> dollars of diis ^um of two hundred 
dollars was paid by Hunter to Mrs. Stembridge. ^he land 
was ac<sordingly sold and bought by one Morgan Huicedc. 
Sarah Stembridge and her trustee now filed this bill, setting 
forth the ab6ye facts, and alleging that said Sarah was old and 
in her dotage, and that the <K>ntract was the result of a fractu- 
hint combiMtipn by Ckocge R. Hjonter ^nd Jiteo^ S. N1^80% 
te takQ acfvant^e of be]r helples8ne88*and ^d^fraad bdr oitliof 
her support from said land. Ih^'bill alltiged) * tha| i^ said 
Hanpock was permitted 'to* pay the purehase-moi^y (ot said 
land to Hunter, that said Sarah Stembridge would be in dag- 
ger of want in her old age- and needy conditiop, and the proir* 
ident intention of her husband would be defeated, as the said 
Nelson wa§ utterly insK^i^tH The, ^It ra,tifiea, on Uie fatt of 
Mrs. Sarah Stembridge, the sale pf the lan<Vby Hunttfr as act 
mhiistrator, and claims a support for her for life out of the pro- 
weeeds.of the. salb of 4)6 lan^. The i>Sl did ^tt «(ifef#r (hi^en- 
^dceam^lit of the /»Mra^ bu^ ^ay^ th%t -if W ^aufdM^ aai 
^'^ust/or tj^e 9tippert of 'Savah Stembridge shMU #tiiaeft 
;»pon the proQeeds of the ^ale*of^he land in lh^«jhsiid« of ]V£n^ 
fjfiXi HqqcocIc; and ihat said Qeorf^ R. Hoater aftaiM kTen* 
jollied Cram traiiuig the i9«^ion saKl Hao#oek» ^ .« 

; NelsM, livii^dn {Jie^aie ef XlaJi>a4Ba,»wi$i not sesved ; Hasr 






u^om^ wsBfLv^ia !ntni^ is». 



fiontflr, fldai'r, kc m. Stttabiiclge, Ac 

■■■■'■ I ' I I I ^ II ■ 

larttwwepeil tjbe biUy«aiid deoied th6 i^airges of frMdbw th» 
frwgq m cnt jof tfie oonlraeV* and tb4 finm^olei^l oeiabiiifttitii 
diBllgid aigabist hm, and swore eflTtkajDain oqiiitabki all6g»> 
tiood in the bill, a^d alleged that the oentjiaot o£'SttnJ^fitai» 
Wdgo aed Ji|oo)> B. Nelagn, wafl^oivfaigly' and hkfy iiiade, 
afd dist die- hob entitled only according te its promooi. 
!Hie answer dsoiset np^ that before said Nelsea bad oAliiced 
Ae foods to poesepbion, he died; andAat tl^erelore, the eSiiii 
bemg cheses in ac^n, snvmed to his wi£a > and that hp Ymd 
dedlin^ to jn^j it oat to said Sarah Stembridge, •on her cMli» 
tract Widi Nelson, beoause, if her did so, 'that lie wonld b«^lia- 
Ue i^ pay it again,* o» ikt4e90^ the one third p<Nrtiei^ ((!Ve poiw 
tion to which the widow of said Henry »R. M. Btemtridge Hm 
eBtMed, tl^e' other two thirds belonging to lot ohlkben.)' 

The answer afeo «0t np a ctaim for certain iwaia$ m«&Tor of 
•aid Hunter, fbrfees and commissions; The answer also states, 
tfiat^the relihqjDri^ipMt of Mrs. ^arah fltttdbridge was eiteovlad 
in oonsiikration, vot only of tiie bond'*efi)resai(l', n^de bj»«iia^ 
800, but afto in eoosideicalion ^ ah btder drWn bjr Ifdscni on 
Hunter, by •which he directed Si^;iftter to rstwi h^t ^ his, N's 
share of the irst payment for^the^laiid, oni hmndr^aodjniren^ 
ty^flve dollars, to be applied by him^ QQftter,ito the^aiii^ort ef 
Mrs. &urah Stembridge, according to an obligatit)n given, by 
hkn. Nelson, to his tmatee, fn^. Stemhridgo^: The mmnpmt 
states that this order Was read over to Jdo. Stembridge, the 
tra8tee;4Uid approved byjiim ; 4hat af^jpr the order was ocecn- 
ted Hunter paid Jno. StembHdge, the conipIai9ant, twenty-Ape 
dolkyrs •under the orders that Nelson had before, through Hun- 
^, pai4 ^Miw\pl Aiant^ tgenty-ftve . doBpreias p^ of the two 
hundred dollar^ mei^itned.in the bond^ and thqs, that" at the 
tm(^ of Nelson's iiUfUhy no moi^ iktifkOBA hundred <u:id fifity 
of the tWo hundred dollars remained unpaid, * • • .* « • 

. On the Wiai o&^/ftause^ tb»defendai^.(G..']L Hwt#) of- 
fifM^ to fiead in evid^n^ a «^pj of< his,«f etani to the Court of 
QgfUamrjf ae admitiis|9atar^of IIL lt4«M«,8tei»bridget^ deeeaae^ 
and tUs,'the Court ^fuaed tf petm^. - D^fintdaAt lOio s«8ered 
l0i|COTe t^ anu)wi4 of oemiiiwe9» to wbieh he^was entitled. 



flonter, adm'r, &c. vt, Stembridge, kc 
^ 1 . ■ — 

•i adfluiiittrfttor of H. R* M. Stembridge> and the snMnuit ff 
iVMts and Goapsel fpes pdd bj biifgo^ aooonnt of tb« litig»fcioii' ai 
tills oase; and the^Oq^ rejected this evidenoe abo, and da- 
fendaot exc^oited* «.. * ^ , . 

IMenduit tdso a^e*d t^e Gourti in imtu|g, to ebar^a Mm 
Jury — Ut. ^^ That oomplainant is conofoded by tiia coatraefr ^mfk 
Ndsotk from setting up anj obumto the ttionay indefwdaat^ 
kands, if the Jury believe from the evidence^ that the cootlMt 
set u]^ in complainant's bill, was made by t^e trustee and aeqa^* 
escedin." . -j • * 

3d> ^^ That under Ihe faot^ of this case, oemplainanf is not 
entitle te a decree; and if.so^ (m}y.to*the«»nt0rest on th% mo* 

ey* in defendant's hands/' 

^^ * • 

The Court* ddeHned QO to charge the. Jury, but charged, 
^that cemp4ainitfit was entitled to recover.froAi the Umiaistra- 
lor, whatever aB&ount m^ht be necessary and proper to gire 
hfU^tk'eontf^rt^le supfort frym let JAO^ary^l^l; add to 
eeAtNiue as lon^.as s)ie fited, or until tl^e mpney in ihe hands 
9[ thaiuimiiustr^for of 'H4niy Bl M^ ^tead>ridge, aHsing finm 
the sale o£ ihik land, was^szli^ted;" 

And thes^ rulkig^ charge.and refusals to charge^ are mw 
asmgned as error. *' , . • • 



f 



iH9irrji& & Bailst, for pl%ii\tiff in esror. 

Cook Jk Moittfobt^Millbr k &all^ for defendant in sr* 

* 

reir. • • . • * . 

Bf the OoUf4.'-3msiws^ Ji cteltvering thfr Ofkien. 
. • - * • • 

*Mrs. Sarah Stembrtdge say^ in the b9LtlM she uMaBes llie 
sale of the land. • • 

* 

THis sale took plae^^A fmrsuaaoe of ih^agreement entered 
mto by Jckia Stenbmclgev her triBlee, with Nelson-^-^an afree* 
m«nt by which Ae- was to refidql^ her iighl to a suf^pei^, 
dmmg her Ufc, from tfaeland; andlnUsa dfthM rights asfi 
etpt, ifst, Ihebobd of Nslson, Unding him to deposit Jiilh 



Hl.-G0ir,-%V!1BUABY TBKM, ISSfi: 9(? 



Bwrtw t^O liuol&red clrilare, to be applied to^fa^ fiopport, at 
Ihe rate of'fifty dollars -a year;* aa4 also, binding fainiy If ehe^ 
riionH live so long air to « require more than t];ie 9260 to ^pay^ 
lier more, at the rate of fif^ dellats a yeari as long as Ae 
sknid Im. ^MomUj, the (nrder ^ Nekon onETtinter, reqmis 
mg Hufttw to retaife ^at of his, N's. share* of the first pa^ 
Hieiit*for tl^ IflQd, one lamdred and serentj-^Te dollars, to be 
^iplied b J > H. to her svpport, aecordikg to' the terms of the 
bond. , ^ . • • . • 

The adtninistralor. Hunter, acting on 4his agreement, Sbld 
the lai^ free 'firom the charge on it fbr the stlpport o^ Mra 
Stonbrldge. ^ 

And it is the sale of the land thos sold, whi<ih she sajs she 
ratifies. 

• It appears,! also, that Mrs. Stembridge aiitaaHj received,' 
iflidfir this agreibment, a part^f the money stipulated to be paid 
for her support, viz : fifty dollars — tweRty-fitie at* one time,* 
and t9^n'ty-«ffre at another^ 

Thus, tben^ it seemtf that Mrs. Stembridge ha's ratified part^ 
of thd agreement. ^ .' • » 

[1.] Bat it is a principle of law, that the ratifieati6n efn 
part of a eontfact, is the ratification of the i^lnje. ( Tfiben 
v$. PMcAer, 2 Sta^ 859. i6Hhn v$. *J9ycb, 1 Atk. 128. 

Story Ag. i250: ' ■ ' . - 

itiMlovsAat Mrs. Siembf idge, in rating ^aitsJrf ttlis 
oortMet,' M«iit(lifa^ wfande ofii; 

And tiie wIk^^ oeaiitract,» then, being tebeegiilBiderefl asininl*^ 
ing on her, it is a com^nenbe, Ihat she has no lights exoq»t 
snch as shei derives from the contract. 

Bat from the conti;^ct, she derives no right as to the pro- 
ceeds of the sale of the land, exc^p) a right to have two httn- 
dred dollars of those proceeds retained in Hunter's ha^ds for 
kernse. 

The charge of the Court b4ow, therefore, that ^^ complamant 
was entitled te recover f^om the administrator," Hvnter, ^^hat- 
tfer amomit toifbt be iSBoessary and proper V> gjrve her a cpm- 



flIS 



, — . » ' » — 



>«api 



fortcMe. mpporl, from the flrat ef JiamMry, ISSl/'^ft^. 
nmeaiis. in m) oaa^ ooold^heliftTebeeiL ^titieAi<^HK)f»tlMtt 
$159 besides^ pc^l^ mtejrest from MuMer. 

But tlie tfdmiii9atrat<Mry Himtor, in his umwer, eaySy thfttJNel-^ 
sm^dicld, .wiAiloat hmbg reduced into \a£'pmtwaxm the pc^ 
ceeds (^ the sale of the land. And he {ntists, that theee pror 
otteds go to Mrs.l^elson hj somvorshjp ; and ,dierefore,*lliaft 
hj the deadi ef Ndsonf,. the order on those proceeds, made hf 
him in fa¥or*o£ Mrs. Stembridge, became ^id. , 

If this statement in th^ answer be tirue, that pj9Biti6n of Mr. 
QunteS*, is one * deserving pf the t most ierkyas oonsideraiionf 
It is a statement) htweTer, which seems to be without eVideaee 
— ^hieh seems not tor hare received the notice of the Court b^ 
lew, and which was noUargued on authority before*tfais Goroir 
F<Mr this Courti tikerefore) to express an opinioil on it, would 
not be pro{)er. I may, however^ indicate son^ sources froia 
which arguments that' hear, upon it m^y, perhaps,- be dsawn»v 
{BeU V9. Belly 1 Kelfyj 687. Sayre and another i». JPlo^urMg* 
oM cmothen^ Z*do. 541. MarqueeUy Em. ^ Wife, 47, 48;^ 
55^ 56, 62*, ?8^ '4, '5, '6. Hill on Trvsteee, 415, and nMe 1, 
4J6.et^.), 

So there ou§h^ to be a new tirial. 

Onr vie^ of ^ cade.being.such as it is. It becotpes mtteoes^ 
sary tosaymeretkaajvhatisimpKed.in that view, oathefi^ 
maiaing pmts in ibe case. . 

,i magr mdku^, that when this cese was up before^ li(><iiig 
was coneiderdi by this Comrt, hiA what, wari tM^iipQrt a»«i4 
fart <^ a ^Jause io^ the will #f Thomas Stembri4ge, /> • * 



* • 



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• 1 



CoxAirf^tv. Tbe U^or & Conuctl Otifflti. ' 

^o.-<^7. — ^BfKN^ '&.;Go\.&Qd other^fSaiiMBiD 6iTor,'ti«f 
•t ThS^aicth asb €!<iuncII.oF"rpEGI!^Y^lF'<JBIIT^bf,defend- 
■ %pltBUl.«EK*. •'_,,.'■ ■ • ',- ■..■,'*•*,,,* * 

[I.],'^^.'"''^^*'*'.^ *t* clfup'Wt^^e^ estate. ^oei not affect tb^ right o£ t1i» 
, clvmany gubse^ueoU; t« file a bUl of jqjunctjon; prating .tha^iUlf Jevj 
, ma J be porpelunll/ eijoined.' ' .■.'.' v ' 

{i.] AH ^ct of 1^4S,aMborl7,c^ jiidfcB of 'tiie ^ugeuor Cmrts, jii Iheir Ui|- 
1 vettos, to gtant« Msoiti} HlJDaclio^iii the eitlne rose. ** , 

.[a.5-A>J(f«tf Brtn'oiiBEana vbluntnrj- tenunflatioii of liiisuit in Cmfrt bj- 

■4f(ie.^ftiiitat. . r'.. ■,'■.• '.,.■*;■ ■ ■'• ' .' ■ 

[^^.plgp'ihbii})} taring tonrkri'.tatffM wlrtclt Mtices Qm cauip/ur'tU* 
pict i^UjMTennltfihfplMi^^sitgto poiiit. > A11& » (^ '*'^^'*■^- 

_ ^iK^sdet^ncM dlat^ct mUwiTnatui^JS uoj^foi; duplicity.. , .... \ ^ 
[5,] A n4fativt i>t«a — that W K> s^j, , ou& which ne^Ufce maleya! faeto <fit 
^ lanG in tbe*bil). jieitssAc^ to the coiafilBlaknt'a title, hqd of.irhich a ditco- 
jerjJB-sottgbtiinlijtlje actotfipft«ied bjansirer. ' . *' 

^*>V'- .'.- ''/ '-. ■ •'. 1' '■ " -. . '.' 

,fai^'4ft,lllv ^1S4^ tb«-'VoarM lU^V ttaHuti ^vAiJg .■ 
\lle''Clwii)ty-«f 

^^K^Iiiltiteif to* . 
a Vahi£ of 'tli6 
(BV.Cl(.th£ ciQ 



•'» -• 



'^50 , ''SUPRij^^E e'OTJR^' OF jGlfoR^Jl'^ 

. , Cox d al, w.'The Major 4 Coyndl Gf iffin^ *. 

iQt3 paid' & full p.nd. Taliiable oohsideratioKfor mcH i-ese^jll 
Jk>ts.; and tbat bjr r^^on of thefie'&ctai a&d tlie dedi&ften bV 
the, I|f onroe I^aiLBbad and Banking Cdmpajiy, of th^se lot8/5 
^ipous religijus^^^atidhab and o.tb^elf ftiblkt pmrppides^/tlid 
ikijb to *8&id I9t8 so reeled and* dedicated^ had paSsed ocit oC 
aieeom))any. • [ " *';/'* '• V ' "V 

^ ^e{d|l^Qa allegesyy (hat lon^^tiieiv'lbesef^e^ an^^.a^ 
^ piitoIjastMrB i)f iho^ loti bad es^^acf lai^ scuna of^mpn^/ 
4k ^ idq^vomehl^ ^f the <ii(jp» and : th^ ' lo^ ^o^ptt^ihaed ]>▼ 
Ifteni) 1iiik(« Pmku^ B^K5oi;» G|ibri^^. '^gj w^d'/^'^^cf; ' 
*0w oblJMifledi' diteCS^ ^mal^andtJeJAt jiidgmedt «|^;^EWb|^ 
flMPQd S^^ Ite^d and. J3an.kii)g Codipa^jrx^aBd'^ad qi^fteut^ 
jliiiid ^fii>-aaQtuudgment9./U]^ of x^[q^ res^ 

isd^dts and ^tUf ecf ; tha( the^e^.various. leLf^ee w^ft V^g ^fr^ 
^^ood^ jpressed; to the oeaseVess^ aqnoyanee of| the c^ers of 
'..^tota a3|joinuig thesQlf)i|blic loip ^bd str^^ts^ a^d^^e^^- 
t^ipat'cosQpi^iion i3f the'C|it^ qx QrilBn;. add the*bi)[l ptlf^^ll 
Miy«^ . .. :/^s I \\ .J 

* I^Q Ihift bin the defeadaptajfiled a jjea ia*blur,,^^iki^^l^ 
i^iqi^najitP^ h&d 6iioe ellviiti^ the property/: ^bd hiifl ijjjyyyft 
•.4at*cWm;.and.hleb;^Jl^w^ * ^-' 

flkke >qi^ra^ter, agaipdt the^ amiie 4ifeh4iuk(fei^4Ntd for . 
p«rpg9e iri^a»e'(nkattoe^*C^ ^^ 

i^c^, ^ Hjie^ Atlf wgani'jii^* the ^u^ l^iSr*'*^ 





li^fsrt^udtedH^ at%EQrac|iti#n«(lf^ 

folTegr^Qd, ' !^te p)^a:a)A<)knegaU)>]^'l^'.^^ 

fed^ att^atter artp^feent/.tlet^otif twto^ W lA fi^ M fcrMft ^^ 



J 



* ; i Coi^ ■{. M. 4?h« Uiror * Ctfauil OvifflQ. 

.T^-: rJ , ■ :, ■ ■ -^— i r^r^ 

>)Kgiiedv'{rroR, ' >•■..' * ' ■•! : ' * 
', HcpOHJ^UDjforpiainta'-.inerfor.' ■ * '; ' .' 

•■ "■ . .*■ ' • '•'■■ ■■■•... 
'debYmiig th^ Qpin&ih • ■ •»' 

DQt'iD&d'e b7:|^ple».)if \m.M 

« t^veiui; br.t^ ^Mi; 
;■•'-•'.■;■ ■'.:'-'vv 

>f ^•.bili,«iJO«f teki*»B % 

tw AU'<M*IS!!^.fliMBtiii^ «£% 
ireb^' fijfki^ the* dioi^itflwtf «r. 

■d^i^evt o^ite'fcKI ^h^ch had lieqB<file0,ia Fft^OpUty; "v 



m*' ■•■■' •:.. e-,- :■, .rr ... 

.- Bit TFtf^iom, Blac^^A teU« iw in- fev sod 'Bivipl^TW^ 

. ||^:te<C4^','.b;,t^pJf^Bl(9'. £kivddb,''iaiid)»y-thi»lM.fci- 

•iHpaljJhaeshi^iBtion.'' •"...,.. • . ' , 

ThH-fftirry i/lhiTif/iTJ fiH-nfinT, ttiif Brittriitlir rBipiifaini^ 



. Coi<{ ol. M. Tbe Major ft CoancilOHffln. * 

'|^''It',i8 true, that.'lhe- JnJge-of tW StfperiorfjBarfriif ^Jrt 
f crtiBt^ 8^Ap^i^TenI^ 1852}' gwurt^an^rdet mil!,' firacting* 
thai the^patieni In the csnfie 'should be r^niMd M the Glerfc 
<ir tlie Superior Court of Spalding'tJoaqty, upoA.psytii^Df pf 
^bets, in- ordeV for trial «( U^. I'feria'of'B^i J<<i^v^ hezt^tl^, 
£Ft%i% lHitl,ihA'Ai case tbey tiiotij^jibt bb retntried stMUppA^ 
1^t£M tBer^sulifg t^a of {h 
tte>Baitae Blioii^.'be*ctiraqiBde^ 

SWwaa Dvt'^iennBsed "-as mi 
1^ the yetJorft, that a^eireraVoi 
»ldx?us« he ffi3niiBsed,«n'd''t 

f Bredif -tte CouA bad ;gr»nti ' 

■ '■ffi^fo_i«dV,*-an^bad dire'cA , 

^'tk,'li Che ■[^o^plunaDt ^ere 
1tf6g'Ul0.^il}ti Tbi3.iBWpl^ 

■^f4.^ The'delendanie'alaol^Bist, feytTiSirplflH, 5tlttfc.tTie.B0^ 
{fl^initBt^j 'tif a' cbrporatton, haVe' no right'lo 'lal^e', m^ispi^ 
•Aii^^8t)iteB;' ti^t tbej liaYe*DCi'inte^Vili Ithwre&l '!0ftft^^ 
"A^'tl^D^- "-sre'iftterlQpo^r'" aa^lberafWlv^ef.'iiioiri^'tfi 
trJHg.iHiio*.'- '■■■•,. '^ '■■'■'■" ■'■ '.'■ ■>•■■■' 
'•TffijB poeiti(rpj if appntprislA m^tf^r fof*i^p1«a tinder dif^A^ 
rirctamWaTioes, h probaU1;f.dbjMttd&able'h*e,1>eotniMi^tfj» 
tT« Incliiie^ to thkk, 'ft renders tli& {Hea,' aa'A.; vhslS,- hfcShwi 
iUptitkfr. Tt(e*otece ofapl«aift4»'brm^<vmLrd uEmmAttr 
^fdlcicig lAA ^i^ty, and lAiab reiTticee tht^Oaiuet ttiiv'^lrt- 
ef<tcover^f^thb"pi*a,to«.'8iiigfej(6inb. Jl'Ati.54t B^. 
^ 3»5.) 9t»%tr^ d^eibe? arMn<MBMd,;aiBtiiI«t- inkfttl^ 

V^dto^efth^ nay. ^*> *^ia liostionrf)i>ti^fleikiBb>iStfoV ^. 
dtftr'VVasonr 7f not'iii th'^ nat^;of<'a~d(n)ih^jll^Wkb% 
sre inclined 40 thihk it I^ it.i^.wbEktiB defionfinaitd »ft^^^fif 
ftek^y^Mt iiti s^y, a p]«a*la^lil'u4g"imaJeiti«tAcWSetf*»Ii 
fcl!!i'rtfA,.f^cee!>tit-y To tke.d'^n]fi1sinaflt's<tjij&; tflTi'iof-^fctct^ 



iuocof, I vksBsfmr TEitk, 185?. 2^ 

** K&iftlit, next jfrieod, m. HardeaUn et ol. ez'ro; • * 

fc . • ^ 



^dto^ts' iDt^restB Med not suffer by^hidTtilB^i f9^^ 
faeafls'to'iaqmorate itwHhtheanswet. . . *V ' •' .* 



/ 



., • * ♦ • '/ '. 



« 



' • 



• • 



^- '. , . • V . . . ♦ . . 



• . • • 



llbj^^. — JoiiK I^o^T/as jM'o^titii of jBiIaiigaret (aftee*'FSOr 
• *jfk9p fifO^Vcffj arid otkera^ (>Atf|itttli.'itt ^rror^ vs. ^^^tir'Y: 

/ ' •••■'»* * •* 

free^k; V 5f Jbtce ili'ttf}a §lik^ ;. <Uid gift ^v«fi*d gubcrtor (Jourtt of €h% 
Sw^jmdy noir perfonit ihe fu&cttons /wMch . dcytlrod .'tipoii.tho*' (7fn«ra/ 
*fiffkri'nndixiiiktSl49Cii€,, ' •- ' * * • ' *••••' 

.xisdictiQn to'aComrt*|)f E'qait^ Jbr tbU* pufpese, a jsp«ciA> case mtaf^prd;* 
. i6ii|ecl J 'aid Uib juhsdic^Jon iS exceedibgiy questionable Ander Any clrciftn^* 
fUpc^ km WchVigkt hating be^nconflrired by Statotc: ' f 

^j Tbfct'ft* Judge ft prltattly interested in ibt ffuil, constttqleV a suffieient- 
^Mfiii^l^ ^e.^lK$«lll. Ntoe to ^t q%i^ in <he p ^fi^e, ^ , ^ - 

[4J 4Tader thf Ac( e^ 17T(f, any^^dfe'ln^tb^lbtiteinaj appotnjt' tf gtial'dia^ 
' atf IK^/as 6oBtea(pl4^ by^tbai l^atut( ;;«)d tbe o^tbotil^ tO; makf Ibcy 

wpoiotpaLf&t, is not restricted to tb^ )udge of ^e'District'wbere the ^^\i is 
'to tJ^ brought. • * * ' • '* ,/ 

[5.]* Because, by the laws of Maryland,* a te^tato^ ^tnay free htk slaves when ' 

^ey attKln to, a certain age,* is' it i^cuibbtet upon the tllourts <3f Oeorai^ 

Of I^Te fbej the right, in theilice of our oy|iJbegiBl«^otf a^nst^dtipetftHf 
' iqaauij^issiOD) to exMjite a will contaibjng an Emancipation clauae, to the 

•foregoing effeO? Q^^je. *• . ' • *• * 

•^p *E<p4ky,' hi» Brtb Superior 'Court. Decisioti by* Jxiige 
F^irtft*,- May WmV 1854. '.• .;*..,•''' 

«In 18212^ Bmh7 E^val}, iwoit^i^eQiof Mafrl&ad^-mi|k bis tt^ 



^ ,ijro»gwa.8wit!t<y;<i^wwtiijlt 

■ ■', * * ''Ktu^l, next {tieiid,,in. EonleDUQ r-f'Ol.ei'n- * * 

;^e ?t'l^^ of ,S6_xaft(»; aid alltotWI^f.'^r-y^B^^pSt? 
^It^t ifFB DDtnufowtted, Bliall,W Fre%. «S' ^q^; <^dw.* «t 1m 
itge^ofimrtv j6aa^*'y. Mikfguetv (o^' of ■thpibytylMf^ y'L yi! 
.^e mcHbeviof^Ee «tfi«i8A4a8<tlle dab^itef :'()ij^«oca]^'^ 
*f 9 }>I>nng bla.6k;' ^.ths time, of!tes^aA^'«^i«H^il,Stie^4iiiq^ 

jGto|pbfetoaaiftbeEUntilb(|u^l'bjron%M^Cha^,J.^w]Ar, ^H^ 
^iSi'r lo^TUig 'Bobat;V. .HaiiJe^^ u 

■ iHei\ by c^i^gb* SB tKjsi; .?»tf t Merida 

facts; Aid f«.rtJter,''t^at;bdiad a^^< , 

-Jiid^ tif t^e^Uh^cait wbece Jjjl&t^^t 

•pt^nt^ g)i^'rdj^m.'{()(-(t|icse.fle^^<^ U 

■;^pi}iilt<i^i^r tba£ be'hadra'ppdkled ti 

'ttbi&'deoi^oaj^ltut '()te ^egtoaq'wolUdjbe itA^ (j^fi^ A.ll«9^ 

.ccfi^ 'W.hA^; -(l^^A qiat'oitjjtur vot^d'-aoti pA>t^t ^I|iiif:g^ . 

titfeir te«tJBibq^«fni)dnot'be jiofjaihi^Aetcenktify.iai^' 2it 

'fyta-a hejfjflg^o^lfld ^htd.^iSfcpiii^erfWaa^fl^^T^Mip- 
^B'anii'aifQetfee, i9rfa9iig,.<^jJ^(ajiMWt8fi»«.. . -'- ■ 

TbaB'<leciskui is asp^ed ft^ error. • . . • , '•' 

■ Stdbi^ i ifiLi, fer plaintiff. * '- 
'McFoNald, foFdeiebftinti. *«. '/ , ' 

• Btf tHk Court.-t-'LJiiiVK.TS, J. derivering tlA op1iti(l|n. 

' Xhis ^raa & bllbfil^i^ b|r b«)np)i)iii(ttftB,- to; ei^ynb 1j 
itaTCB, u}d to establiab ttifir fce^n. -they ^e i 
Ae bill^«U^9icd ti>,g{k^41f ^ t&^ deiMMre^ WftH JnA- 



-T« — ■ ri 1 ^ 1 . ■ ' I ■ 

— y ^ - ; I T-, ; . ^ 

gttrel-F&itB^ w9e;on'tbe Sth^dfty of t^mne, l822^'%lrerpi)opfCtty « 
6f Semy fi^valjnnid! daughter of Bebeoca PhiBfjxi, -i^b yaa* 
tfi«pjrop0rtybf{nl^<lDjiTfLU« • 2. ^v%ll^ oh ^t day and jreari 
miid^ And pA^liflhed Us >iU; by whieh iie detlatyl ihirt; }i\3. n^* 
gi^lN^mtux Bebecca sbonld hi fr^*on t^ let 'Jappa^^ l^Sd,* 
lOid herissne i;<fbe ffoe a9 l^tiey a^v^ct.'at ik^liget'-oCV^^ * 3/ 
jra^tttar^ret is* the datighite^ oT«;Re))e<;ea,'.itnd*aitaified thiaC 
a^ ^ S^n.l^afe. • 4/ ^t DavaM.iras, !at *tke^ time xsTluk 
Sfi^£, dqpddliatdd^^^m^^ aj^d'.t^tftr «His* will; yu*^ 1)4 

sMc^ acco];'d^ii^ witC*^lieiaw8'9^that ,QM^h and^htftlbe nr- 
^Stttor OQghttbKaV^eafrieilit ^t/ ^^^ i^ adt, ^n^Mt^apeer 
nr frand^ A^ was ^ehi off to Oeorgia ; aftd af^er having, bees 
Ai^tedly'Sold**ai^1t slaTe,\inthieNreat 1840^ or iherea^oMiyf 
• die waij ptiroliased bjrMi^ael "M* Hqacley, '-who *d#p$rtecl*t'Jfa 
^ISlt% Hk 1850, aY^r biavipg made .a i^iH appo^tlbft Hatdetfall* 
and MoreIand,\nien afi[d«BOW of JoAes Cotmtjr^ and l^c.Carft j(;' 
nbv'p^ BX^b Godmy, iiiis^x^atpm . ' 9. ^chqqI^ qnalifiiR} a«^ 
A»<(tmej(A|ie^sed^{ 'ttfl^ her ctdldjcen^'ai^'ImVin^ 

<ilil^i^*laA«eito*8«irtlJeifi, Wilf sett t^iliota' the Srst day W 
(hOnt^'Bes:^ enftidng, before \he^x;piirt*faoti^e dei>rJn*Joi|eiif 
Qorf&tjy vfnlesa restrained by^the*^wt^b1e,inte^)CMSti^ ^,fi\fi 
Ootni:. •t^•TK«^I&ighth^ld apptiei to *he. Honoiahle Ifcoi:' 
BA«*^/lp[X)K^SM!Adf,'Jbd^'of*tiie Btqperior Oo^irts of J<i^* 
0fhinty/ 1^ be.appt^tvif 'gniurdiaa 'of^sttid wotniin and oUP; 
dli^ ^lAlflrhSd Yifftaaed tQ*4<^;' and t<)r Vhieh' d<teifudn he et* 
eeftel^ an(l'w()l ^avryi^to th^ Snpi^mtf €|j^ b^*iri^ nf,ei^' 

Xt ^dHtkefUe a 4<sen]bip will V ifei(d4 o;i said imk*of|«^n^iv 
ttfegh)^ W(n.hb%8^W;aQd x)enn;^ b^yond^.tfie lii^Ulp if^ik^ 
Sftile.^ */8. {f^li^Vehr ^x Vxi powfaf. to six» tltHja^for ^loirlfree^ . 
d0fijmiiii^k^ xVa^ddni^ aeKt i^Atomoftt b^jiuif ih»M^ 
.di^»^te/ui;4;6^ d^iidto^ ak^ pt^dW &oni ^^Ifatf 
Ate.;9/^^«96«1h^^ bei^ifte!hig'Wiiti|^«i|f 

tt^lrov^^flfl^^ l^<^ w^dt^ r^sflj^'itf !y[M7(tad ;«*tt4 
dMb «M^^]it^«^Mbol; tia ^teej^;bc;fore.the«tiimfa^q^^ 
fk&heteUifr^ be^Mc^ ]fe)rdi^ii^de<eB^<; U ^ <J«dgii afi 
iJhid V«^-«<A rmft t^a|^{NAtt;«fl)iikI^ %mt.tlfiffibi; «^>* 



^^ i^^sM?, cmifrm 0W0m0L . 

Miiigbt,xi6ztfii6itd,tv. HardfiolA&i/M flK'i;^ * 

fnai^d ^ufc.df the S&te; ' 10. .sk^ foi^ 'd»a :t«d(l» ^f Itim 
flUd ^ lebg;tii of lame tlie*i^|igro^, i^eroin ^qqapujoii of the 
de^aeed aa^d of l4s «:se«HtiB$u . '11, ^^>ill pmjpi nlal jlil|)tfK 
fidbecbm-uMi]^ be eataKKsk^ miA nxk MeoUpt tokeii. of tlie kM^'# 

r' at^iiaiic ap^o^i^df (lq'A the ;*8al6 « Jyerp^ttialfy, ^oiaed, 1^ 
an.^l5feoitte*of (ha'blll.^ ' s* * •«• ♦ ^z, /• ^ • • 

^ [a,> Waii^0ef6tu> of i^^ 

^ain*ab|(ij^H^ J;tie^i% as ai8(yis|i^b7 €^^r^or JKpD(ffiald, Jm^ 
i|pl the^avty^ uf 4^h«i!TUb^/«^ ample, jemedy J&l^laW? Ab^ 
#.^V»«gna9yrfiiffi,ie,trey«« f«r W «^ti»»> ti»* 
4|iiuioJ *; * • *••//'• v.. * : •* 

•^CHe'&st ^4t i;^^ tifis flutfj^t iSftlic^ fronitoi^l JSla|itfce of 
f^77i^*<OtS5>Jf^^'07t.) ]§;;i;bo l»t' $;gy^ 

■<pi|tyn0av Fhai^w-ar€uor l^^^^^^^'^i^^^ ^^T^i^ 

]A«o8b .or pM^tivoe^' wfatr -now ftrel d»- kei^lter |9UM« b^^Mlirt • 
%^^9m9ptod^)^nd*^lth^ir4BSii&and,offi^ oar. tO'l|$^ 

Wb^ «haU ^e^ and t^^ «)*e b^V doclai^.to bo^tu^d rdawn^ 
{oi;oi?fer Jb^iWteiv ^b^olW.'e^?^ aiid^halhfidW^^^ tMtdi; 
ij^^joJt flip ^iM*her, «M ^11 V.^Uwi^nd c^MMJf^.l^ 
^4fattoliB, ^^mwiud; in jdu^ bancl^' oS«lJ|#i»tkji4^^at^ 

]a4^ r^^ix^'oj^ iBf^\^^^ ^l ^^ iaipi«| <M^^«| 

i«iii. «e^.^ijuii^>f ^^ 

i»^M;^4lid^^#d^fe^^#ite M^ '" 

091^ Indi^iOr W^aMo:<«r,)Qa^ii<)e$'4i!^^ haL^,lii»t A>fdi | r , | 
l^k ii IjAmi ilii miidih rf drtniiBi m tlii Atom nf ^mAAJ 



MACON, FEBRUABT TERM, 1855. 99t 

Knight, next friend, vt, Hardemaii €t al. ex'n. 

of ward, agaiiiBt any person or persons who shall claim prop- 
erty in or shall be in possession of any such negro, Indian, mxk- 
latto or mestizoe ; and the defendant or defendants shall and 
may plead the general issne on such action brought, and the 
special matter may and shall be given in evidence. And upon 
general or special verdict found, judgment shall be given ac- 
cording to the very right of the cause, without having any re- 
gard to any defect in the proceedings, either in form or sub- 
Btance ; and if judgment shall be given for the plaintiff, a 8p#- 
cial entry shall be made declaring that the ward of the plain- 
tiff is free ; and the Jury s^iall assess the damages which the 
plaintiff's ward hath sustained; and the Court shall give judg- 
ment and award execution against the defendant for such dan- 
mges, with full costs of suit : but in case judgment shall be 
given for the defendant, the said Court is hereby fully empow- 
ered to inflict such corporeal punishment, not extending to life 
or Ihnb, on the ward of the plaintiff, as they in their discretion 
shall think fit : Provided^ always^ that in any action or suit to 
be brought in pursuance of the direction of this Act, the bur- 
den of the proof shall lie on the plaintiff; and it shall always 
be presumed that every negro, Indian, mulatto or mestiaoe, 
(except as before excepted) is a slave, unless the contrary can 
be made appear. 

Section IL *^ In any action or suit to be brought by anj 
such guardian as aforesaid, appointed pursuant to the direction 
of this Act,, the defendant shall enter into a recognizance wi|}i 
me or more sufficient sureties to the plaintiff, in such sum aa 
the said General Court shall direct, with the condition that he 
ahall {produce the ward of the plaintiff at all times, when, re- 
quired by the Court, unless such defendant shall prove, npn 
oath, to the satisfaction of the said Court, his inability to ^o- 
duce such ward; and that while such action or suit shall be 
pending and undetermined, the ward of the plaintiff shaU no| 
be abused or misused.*' 

Is this Act of force in this State? 

It was adopted, according to the express terms of the Act of 

TOU XTtt-33 



888 SUPREME COURT OP GEORGIA. 



Knight, next friend, vt. Hardeman et aL ex'rs. 



'IT84; it is contained in eveiy Digest that baa been made oC 
Ibe Laws ; it was tbe only law regulating suits for fireedom np- 
to 1885 ; it is known to some of ns tbat proceedings were insti- 
tuted mider it ; there is notbing in tbe subsequent Acts of 
1885 and 1837 wbicb, directly or by necessary implication, 
repeals tbe Act of 1770; it is tbe only Act wbicb provides for 
Indians, mulattoea and mestizoes; tbe Statutes of 1885 and 
1887 being applicable to negroes only. Our conclusion, tbere- 
ibre is, tbat tbis Act is of force. 

The next inquiry is, wbat tribunal sball perform tbe func- 
tions wbicb devolved upon tbe General Court, as it was called, 
Tinder tbe Provincial Act of 1770 ? Undoubtedly our Superior 
Courts. All of our legislation recognizes tbe fact tbat tbe 
powers exercised by tbe old Court passed, svi silentioj into tbe 
several Superior Courts wben the State Government was owJ^ 
ganized ; and the Judicial powers were distributed amongst tbe 
different Courts. The law regulating tbe partitioning of land 
is a notable instance of this transition. The Provincial Stat* 
Qte upon tbis subject was enacted as early as 1767. ' It recites, 
Aat it was inconvenient, in tbis Province, to pursue ihe method 
of dividing lands and tenements by writ of partition, as prac- 
tised in Great Britain ; and tbat it was necessary to provide a 
more easy and less expensive manner of obtaining partitions. 
It, therefore, empowers the ^^ General Court of Pleas'' to 
grant writs of partition, &c. And thus, from 1767, three years 
before the Slavery Act of 1770 was passed, down to 1S2T, the 
jurisdiction of the ^^ General Court of Pleas'' was exercised by 
cmr Circuit Coutts, without any express authority to that effect. 
And what is a little remarkable, the Act of 1827, to out down 
tile number of partitioners from eleven to five free-holders, re^ 
cites, in 4he preamble, tbat ^^ whereas, by the Act of 1767, itwaa 
made tbe duty of the * Superior Courts^ in tbis State, 4c. wben 
in truth the Superior OourtSy as such, had no existence, except 
in its prototype and predecessor, the General Cowrt of Pleas **' 
{See CohVs Digest, 581, 2, 8.) 

Much is, after all, assumed and understood in tbe legislatioi^ 
of a people, as in eveiy tbbg else, otherwise our own sgrstemi 



MACON, FBBRUABT TBBM, 1856. 259 

Knight, next friend, m. Hardeman it al. ex'rs. 

be found, upon dose scrutinj, to be lamentftbl j defective* 
[2.] Let QS^ next, examine cursorily the Acts <k 1835 and 
1837. By the fonner it is declared, ^^ That it shall and may 
be lawful for any Justice of the Inferior Court of any counly 
of this State, upon the complaint of any free person of color, 
that he, she or they are fraudulently or illegally held in sla- 
very, to make due inquiry - into all the circumstances of the 
case ; and if, upon such examination, the Justice shall be satis- 
fied that there is probable ground to believe that such complainant 
or complainants are improperly and illegally held in a state of 
slavery, it shall be his duty to order such person or persons in- 
to the custody of the Sheriff of the county until the pretended 
owner or owners shall enter into bonds, with good security, for 
double the value of such person or persons of color not to re- 
move or attempt to remove such free persons of color from the 
county where this examination is held, before the cause is 
finally adjudicated ; whereupon, it shall be the duty of the Sher- 
iff to deliver such persons of color to such pretended owner : 
but if the persons claiming to be the owners or proprietors of 
such person or persons shall fail or refuse to give bond and- se- 
^nnrity as aforesaid, the Sheriff shall retain him, her or them in 
his possession/' 

Sec. n. ^^ It shall be ihe duty of the Justice of the Inferior 
Court, before whom the examination is had, to reduce the 
statement to writing, and to return the same to the Clerk of 
the Inferior Court of the county, who shall docket the case, 
stating the names of the parties, &c. which shall stand for trial 
the first Court after the same is docketed, unless either party, 
lor want of evidence, or other sufficient cause, should move to 
eontinue the cause, which may be done for one term and no 
tonger." 

Sec. nL ^^ The Infmor Court shall cause the parties to 
make up an issue involving the complainant's right to freedom, 
which shall be submitted to a Jury as in other cases : but 
either party being dissatisfied witli the verdict, shall be per- 
mitted to appeal to the Superior Court, without giving bond 
^md security, as in other cases." 



860 SUPREME COURT OF GEORGIA. 

Knight, next friend, W. Hardeman et al. ex'rs. 

Sec. ly. ^^ Should the complainant, upon the final trial of 
the case, suaceed in obtaining a verdict in his favor, the Court 
ahall order such person of color to be set at liberty and a guar- 
dian to be appointed, as is now regulated by law." {Ooib*$ 
Digest, 1007.) 

This Ad^ it will be seen, contemplates a proceeding to be 
instituted at the instance of the colored person. By the Act 
of 1837, provision is made, that ^' upon the complaint of any firee 
white person, upon oath, showing that he has good reason to 
believe and does believe that any person or persons of color 
are firee and are fraudulently held in slavery," it is made the 
duty of any Justice of the Inferior Court of any county of this 
State, to issue his warrant, directed to the Sheriff or any law- 
ful constable, to arrest the holder as well as the slave, and to 
cause both to be brought before him, that due inquiry may be 
had into all the circumstances of the case ; and if, upon such 
examination, the said Justice shall be satisfied that there is 
probable ground to believe that such persons of color are im- 
properly held in a state of slavery, to require the person so 
detaining them to enter into bond, with sufficient security, pay- 
able to the party making the affidavit as the prochein ami of 
the slave, conditioned for the delivery of the slave, in obedi- 
ence to the mandate of the Court, to abide its final order, and 
that said colored person shall not be removed beyond the lim- 
its of the State in the meantime; and on failure to do so, the 
person of color is to be delivered to the complainant to the like 
effect, &c. {CobVs Digest^ 1011.) 

[3.] Without dwelling longer upon the provisions of these 
several Acts, do they not, singly or combined, afford the most 
full and complete remedy, to enable persons of color to assert 
their freedom ? What then are the special facts set forth in 
this bill, to give jurisdiction to Chancery? They are, First, 
That Judge Hardeman, who is one of the executors of Healey's 
will, refused to appoint the plaintiff in error guardian ; and 
Secondly, That owing to the non-residence of the witnesses, 
by whom the identity of these people could alone be proved, &c. 



MACON, FEBRUABT TERM, 1855. 261 

Knight, next firiend, vt, Hardeman tt al, ex^ 

complainant could not procure their testimony in time to pre- 
yent the sale in January next ensuing the application. 

[4.] As to the complaint against Judge Hardeman,«why did 
Ejught apply to him ? why caU upon lum to prejudice the es- 
tate of his testator, which, by previous and consequently para- 
mount obligation, he was boimd to protect, by san9tioning this 
proceeding? So far from the refusal of Judge Hardeman to 
act officially in the premises, on account^of his interest, furnish- 
ing any ground of complaint or pretext for a change of juris- 
^ction, it constituted a good and sufficient excuse why he 
should not act, and the complainant can take no advantage of 
his doing so. Why go to Judge Hardeman ? One of the exec- 
utors, McCarthy, resided in Bibb County — why was not the 
application for guardianship maCde to the Judge of the Macon, 
instead of the Ocmulgee Circuit? It was he who sanctioned 
this bill of injunction on account of the interest of Judge Har- 
deman. Why call upon Judge Powers to perform this service and 
not the other ? Indeed, according to our construcftion of the 
Act of 1770, (which is admirably adapted to proceedings of 
this sort, and which, ordinarily, will bo found to be a better 
working Statute than either of its successors) the mere prelim- 
inary proceeding of appointing a guardian^ might have been 
discharged by any Judge of the Superior Courts of the State. 

And as to the other ground of equity, to wit : the inability 
of the complainant to procure the attendance of the Maryland 
witnesses to establish the identity of Margaret Phillips and her 
descendants, in time to prevent the sale, there is no averment 
in the bill that the attendance of these witnesses was expected 
at any future time. The Courts have no power to coerce their 
attendance, living in another jurisdiction. But waiving this 
objection, we say that under each of the Acts already cited, 
abundant provision is made for protecting persons of color 
from being eloined or removed beyond the jurisdiction of the 
State before a trial can be had. And a resort to this, would 
have prevented all the mischief apprehended from the approach- 
ing sale. 

Decisions have been read from Virginia^ Tennessee and sev- 



4«3 SUPREME COUBT OF GEOB&IA. 

Knight, next firiend^ t». Hardanum tt aL ex'rt. 

I I L J ■ 

enl otiier of the slaye or qtum dave States^ to the effect, thai 
in suits for freedom, the jorisdieticm of Chanoery is not ousted 
by the enactment of Statutes for this purpose. I diall be par* 
doned, I trust, die apparent presumptioa in suggesting that 
^lestions involying slareiy,, hare noty heretofore, been disoss- 
sed, even in the slave States, with that thoroughness which 
either principle or their intrinsic importance demanded. The 
Courts as well as the country, are just waking up to a proper 
appreciation of their momentous duties and responsibilities in 
this respect. For ourselves, we are strongly inclined to hold 
the very converse of the doctrine referred to from our sister 
States to be true, namely: that the Courts, themselves, 
can only move in this matter^ in the course indicated by 
the express legislation of thb State; and that where the 
law stops their jurisdiction stops. We speak, of course, in re- 
lation to domestic and not to extra-territorial emancipation. 
The bill before us does not involve the latter question. This 
whole question is (me of State policy, and should not be put 
iq>on these principles of meum et ttncm, which regulate individ- 
nal rights. At any rate, before yielcBng to the claim of juris- 
diction here set up, a very strong case must be shown for the 
interposition of a Court of Chancery. 

As to the position that a bona fide purchaser should be pro- 
tected, inasmuch as these people failed to give notice of their 
-claim to freedom at the time they were sold, we attach no im- 
portance to that. It would be preposterous and unjust to visit 
taoh consequences upon persons in their condition. 

[5.] I must be pardoned for suggesting, that to my mind, 
there lies, at tiie foundation of this case^ a much stronger ob- 
jection to this whole proceeding, than any which have been 
cfaoQSsed by the learned Counsd. And tiiat is, the want of 
fqmty in the bill, not because tiie complaioants have nrnplB 
redress at Law, if any where ; but because neither Courts of 
Law nor of Equity have any right to grant tiie relief which 
tiiey seek. 

We have, in this State, the most stringent Statutes which 
the ingenuity of our wisest statesmen could devise, to prevent 



MACOlir, FEBBUABT TERM, 1855. "3^ 

domestic manimuBsion. For fifty years^ die policy of our leg* 
islatioB has manifested no variableness nor shadow of turning 
in this respect. Can the laws of a sister State, then/allowing 
the fireedom of these slayes, be executed by the Courts of (Geor- 
gia ? Dare we say, in the face of the Acts of 1801 ani 1818y 
Aat these foreign laws are not prejudicial to our own rights 
and interests? Are we not under paramount obligation to* 
enforce our own policy? 

To my mind, this is a plain case. 

No one pretends that negroes can be carried to New Yorlt 
or any other free State, and held there in perpetual bondage 
by their owner, in defiance of the laws and policy of that State. 
With what more propriety can slaves be brought here and 
emancipated ? Such a doctrine is wholly inadmissible. It 
might be used to subvert the domestic institutions of every 
slave State in the Union. Our Courts of Justice are power- 
less to exercise an authority so repugnant to the declared will 
of their own Government. . 

But I forbear to discuss this point, inasmuch as the decision 
below may be sustained upon the other ground. 



No. 49. — ^Davis C. Greshah, Ordinary, &c. plaintiff in error, 
V8. Lbwis Pyron, defendant in error. 

p.] An appeal lies fiom a refusal of the Ordinary to grant letters penimU 
iUe. 

[2.] Bj the amendment of the Constitution, creating the ofiSce of Ordinarj, 
Ihat officer is authorized to grant temporary letters, " to hold until perma- 
iient letters are granted." Where there is an appeal from grant of pemft- 
nent letters, the temporarj administrator wiU continue in office until thiil 
^peal be disposed of, and permanent letters granted. 

^3.3 Where an Ordinary reftises to enter an appeal from his decision decUtt- 
ing to grant letters j»efKfifi/« hte, iftmtUtmus is the proper remedy. 



264 SUPREME COURT OF GEORGIA. 



Gresham, Ordinarj, kc. tw. Pyron. 



Motion, in Meriwether Superior Conrt. Decifiion by Juigt 
Starkb, August Term, 1864. 

Lewis Pyron, claiming to be a creditor of Jacob Stromati, 
deceased, obtained temporary letters of administration upon Bis 
estate. He and William Mitchell, (who also was a creditor,) 
both advertised for permanent letters. At the hearing, the 
Ordinary granted the letters to William Mitchell and revoked 
the temporary letters to Pyron, as having expired by their own 
limitation — Pyron making no objection thereto within four dajs. 
Pyron appealed from the grant of permanent letters to Mit- 
chell. Letters^endewfeZtYe were then granted to Mitchell. From 
the grant of letters pendente lite, Pyron offered to appeal also. 
The Ordinary refused to grant an appeal from this grant of 
letters. Pyron moved a rule vs, the Ordinary in the Superior 
Court, to show cause why he should not enter the appeal, nune 
pro tunc. This rule was resisted — 1st. Because the proper 
mode to proceed was by mandamiu 2nd. Because, upon the 
above facts stated by the Ordinary, in his return to the role, 
an appeal did not lie. 

The Court over-ruled the objections, and made the rule abso- 
lute ; and this decision is assigned as error. 

B. Hill andE. Y. Hill, for plaintiff in error. 

H. Warner, for defendant in error. 

By the Court. — Starnbs, J. delivering the ojunion. 

[1.] It is insisted, that the Ordinary was right in refusing 
this appeal, because it was proposed to be taken from a deci- 
sion declining to grant letters of administration pendente lite. 
The law authorizes an appeal from ^^ any decision" of the Or- 
dinary. It is impossible to say that this is not a decteidn. 
There can be no reason given why it is not as much a deei- 
9ion as the refusal of permanent letters. 

The only reason assigned why there' is a diflbrence was, that 



# • 



MACCar, 'pfeBBtTAR'ir term, ISdB.' . 2^ 

n^-4— ^fJ^«iy III ■ ^ ■ ■ ! ■ i i ii*^Mi ■■*■ « ■! 



Ckesbam, Ordinary, kc^ v«. P/ron. 



■ * 



JPtfppealB from a rt^fosal to grant letters, peading tbe appeal 
jfrom a grant <5f peraMment tetleirs, were aHowM,- it wotdd te 
|frodoc^Te of^'great iicooT^Dience,, as there wotdd then be do 
Mte to take chlMrg§ of and lotfmge ^e- estate. Hh^ does ml 
lieoeasarilT follow, for th.e Ordinary might appcant^llgamy aoine 
one as temporary admiqiirttatof , fMdiQg, the laait appeal, aQd , 
iBb, on tmfil an udmiiifsttator was found. . ' - / \ / « • 
* ' . Xfi'it be answered, ihat t^Hs migbt not l>e pn^etmaUe, 9S fiA 
<ap{)eal firom the refusal to grant letters p^Ttdente lite might p^ 
Ve entered. until Oourt bad aff^oumed, the reply to thaii% thijit* ' 
tiid 4[>b6errati^ applfts as well to thet Mipealjn tl}e first in- 
atanee ; ^gad m 8a<di ^ase, the supposed ineonvenience w^buld 

am J 

not be obriated; for \e{ter^ pcn^nte oouH not be granted o^' 
;of the .term,'^ae the law requiies.them to be. granted by tftf 
CMrt. ' ' •; ' 

I ^^nt it is* well knowli that the arffumtntwn ab inconver^i^nti 
faiegit^ate only where ihe Court 16 doubtful as' to the law. 
Vhwe iliat ja dear, the Judge must .aduunieter it-, wha^ver 
tiie-ixLConfemeiitee. ' / • » . •. 

! The /Ordinary, faoweve^, in suol^ a caseas tbot supposed, h^ 
a general a^uthotity in- the pretDi3es^h^ which he*can, jto a gpeat 
^xteht, remMy'dticb an iii^nvenieii(fe. ,. 
• • [2.] "The kicqnyenlence in (J[uestjf>n need not arfse again,. fo|: 
another reason.- By the amendnjeat of the Constitutiqp crea-^ 
^Dg Abe o&ce of Ordinary, that ofiioer i^ empilKered to/^gr^int 
• t^Bporai^. ^otters of administration, io Jiold ujttil pfit^neht 
^ettera'M'e granted." When,''tbereforQ, a temporary odtuinis- 
^tor is appointed, he may iretain bis .qffiee' until .'tb^ appeal 
'iKiin ^rant <]f permanent letters, is finally tnefit and determia- 
giedi and tliese liters are granted/ In ihis case,'tiewis'Pyr(m. 
Ae Ibfemperary'' administrator, might liave contjnu^ed* (in our. 
4||nlon) to exercise hia.autbority until the appeal was disposed 
el^ tf h^had not s^cquiescedan the revocation of his temporary 

' We at^ well s^sfied, th%t the deiSendant in Aror w^ enti^ 
tMiisirJds'Appe^i ••• .1 









• • 



9^ . sfxPKfiBfB domsi oBmoi^ 

- '^ ' ' — ■ • * ■ ' <■ ^ _ ^ *_ 

* * . * ^ Qresham, Ordinaiy, &c. w. Pyroo. • , • $ 



i m 



9 ■*■ 



. [3.] Let i\s Qow ascertain, whether or act he has pmmie^ 
^e proper oeinedy to swmr^ it. Oca an Ij^eridr J4dieatare v^' 
tiiis State be t^ached, and its^ err(Hii^.ppitairefi|i{fal.t<> adrnmift- 
teir the ktir, be corrected by a proo^edh^ in the form of a nd^ 
issued by. the Superior Court?*. . 

t ' '. Bv ei|r system, what a'rd technically known .as crr£}r« /)f In-; 
ferilur Codrts, 'couhnitied t7ta2ina2^ in the admmis^tu^ AT 
justice, must be corrected by the S)iperi(fr OQurt, either i)y ap^ 
]^1 or* by cerHorari.* .And4;he errors' which are to be* drab . 

* ^'cotrected, are such as occur- after a case of dome 9<n*t is^befert^ . 
^e Inferior tribunal **&tii h^e the complaint^is, ihat the Qf' 
^intuy would not permit the case to get its lodgment in (}^u1{ 

, 3B[e refused to aHow ;an-apppal ; Ihe refused to do that f^iwff^ 
r»a2 '^ctJiepessary to giVe th^ party desi^ng to app^L il staha<^ 
ing in Court, and to w*hieh hewiets entitled as matter of-'lidjt 
It was not a judicial error to be corrected but a ministerial 
i]ict to be peif ormed by the Ordinary, -^hich he refused, an^ 
thereby occa^ion^* a failure of justice. .' , '^. \. /,• • ., 

To correct a*fifilure of justice by reasob oTstich irdfiisal, man* 
damu$ is the, proper remedy in our opinion. , * . , * '* . ^ • 
" It .W|ts* urged, that as <he defendant in Brror was^ entitled, t^ 
appeal,' as matter of right, the Superior Gdurt might order sii)& 
mppeal nunc pro tunc. rThis is true; Wt it must be oloqe hy 
the proper remedy. * • .*• »• • *• •*. • 

,We io not s^e that this pase differs, in principle,' fr6m,£faaf 
wliere'the CleA of the Superior. Court reftises t6.'Sie6d up a Mil ' 
of ejceeptions -to this Cburt, after there has bec^n a oomSKance* 
with the law ; or wbefe Ihat X)\wk refuses to recei^^apetitipn 
and annex proebss^ They . stand upon the same ba^of^tea^ 

80b. ' * ' '" • • •'••:.**'' ^' . '^^• 

* The decisiohs cited by the CoiinsefVfor the defendant in c^fVoL 
Ve all cas^s whese.the ^atise bal alodgment iir Court ;\Wte^ 
the ministerial act necessary IpfJlace tW^Wse theiSe if^V^'^ 
'jierfbrpiei; but there warf sbm.e 'irregtjaritf^ or ihforr * 
the proceeding. , * ' '. • '» • . ' .^ 

lot t^e judjiijtent be iweri|pj^ . ^ .' • y ^ A# ; ^ •' 







» • • • 

t 



i >i. li< I 



iJACON, FEPRUARY TEEM, 1855. . ♦ 267 



^ . * Wellborn w. Weayer ei aL ' * » 



*lSo. 50.— C- T, Wbm-born, plaintiff in error, vs. W. W. YfsJkM 
. . • VfiR and otherS) defe)Qdaiit6.v 



I* 



£1.3 A new trial will not be granted because the verdict of the Jury U coft* 
trafy to the change of the Court, if tlM vferdicl be according to law, an4 
the charec agalhst it. 

p.] To make the saving in ^e Statute of LlmHatidils, iti favor5>f Amas t^ 
wertt available, they must be attuaH^ nuvrried'^it the time thf ri^ht of Mr 
..tioa accrues. 

t3.] Maniiige may be postponed) but not' \he Statute of laoti^^Uons^ « 

J4.J If negroes, belonging to 9,ftm^ zolt^ are converted heforo marriage, tho 

law transfers the property and right of possession to the husband ; aud he, • 
^ alone, must sue. • . ' • ' ' . " • • * 

{5.] A deed, slgnod, scaled and deliyered.to a Ihlfd person, o#<Ae agnn o^rtti . • 
5M«*>r{ to be reii«?rded,aDd Kept by Idpi till tb< death 0/ the graatoh aod^ 
ti^n Ao be delii-ered to the grantee?, is not t^e present deed qf th^gMntor; 
' neither is it an qerotc, but a testamentary paper, and must be proved ^ 
such before tifte to personal property can be derived under it. 

ffi.] WJieelriff/U.ys. Wheelright^ (% Mon^ B* 417,) examined and disapproved, 

n.] A deed takes effect flrom delit^fy, ^hioh iliay be by words, or by acts 

• ffithoul words ; and tp Iht grantef oi»^t<> tC thurd pereo&, whb<(tit especial 
afttlipnty from the granted t9 receive tbejanfe. ' , • \ 

* > • • * * • 

(a.3 /tis not^ess^mial to the-delivery of.a deed,^hat the grantee be'prasMt, 
pcrsouaDy; to accept the same. \ , , * 

[9.3 The mere retention of a deed by the grantor, will not affect it^ validity, 

nnless agreed &nd understood, at the tim«, that (he deed is npt to pass o«fe * - ■ 
.* of the grtintors possession. -^ '.'*•. ' i » 

f 10.1 A naked power, mno^vpled with an interest, is determined by tlie dea(t)i 
crthe ■pdrttipal. . • ^ " . ^ , ^ • ' 

pi.l Delivery is no less essenlkU to im acft>«f than a deed. ' 

t\%Jl Distinction between. a deed and an*w«7w. 

[13.3- The act oTiegisterlng a deipd dod^ not amopnt, necesiarilj-, to % deli^ 

* erx-5-'''hffl» placed on recitf d Ijy th^ grantor or bj hi^ direction, it 14 o^Jy 
"prifimjofie evidence of delivery, anfl inay hk explaltted ot ro^iMted^ 

* ' * • 

£l4.3 ^hether ab ii^stcument be a deed ot a will, does not d|^nd npon Hi 
» ibrnj or soiioner of execution, bijt tinon its operation. .' . ' 

p5.] The mtqation pf the nhiker m$y be ascertained, n^t oily from thp inf. 
* strntoent itedf, bu^ from extrinsic evidente. • ^ '* • ' J 

' ■ Tjpover, m (Joireja Supepor Court. Tried Jefore ^vdjp 



• 



!^ • . mefs^Btts cbv$^ OF ms9eli^ 



t ■ 



■ ^ ' .H. 



M . ,^ ^ a « — »_ ■ > I. * ■* »— . ^ — * i * 

'Rm was an netftn to fecoyer tvo ji^figro^ A^^rolpaii aiMthei^ 
fon, hc0Hght by t^ pkwtiff^ children of thid.wi^ of d^imdaiit' 
.4by A JlsrmefmaBrii^je,. against (^ T, Wj^tKOPL */ » • . 

' The negi'oes had formerly been the *pro|)erty'of Jodfuil^ st^ 
^er^ deceased. ' &e dehvered them to hia daughter Ssfa^ on 
l^er ' marriage nitk one Seabolm'Br'Garn^tty tha father of plaiiL* 
t^; AaiiO whether she took them aa a loan or gift, ttew wns' 
lAnch confiteting t^atindhyJ The degroea remained in hW poa^ 
irssion' until after Garnett's death, and until within a ffird^if^ 
of Vrs.* Oarnelt'a marriage to Wellborn, the defendant, wfa|^ 
. was in 1888, wlien they were taken away from her by Jo^bpsft 
*Sldeh In 1842, Jodhna Elder executed a deed of gifi^ in tK^ 

• tonal 'fdrm, conyeying (he negroes to the plaint^ l%iad^4 
lie gaye to one of the subscriliSng witnedses, with jhsQnMablA 
to haye it recorded and to bold it as hid, Elder's ageht^ tkflidi h^- 
EMer^ «hodd be dead^ and then to d^iyer iit^ * Ae dCBfOS^ 
which the person to' whom it w^- intrusted £4^. ^'^StMrtl^ 
This deed and the cireumsU^aees of its ddiyefy weftf hi efh 
dence. v ' * . '^ • ■•• 

. Xbp.n^groes continued in the possession of Joshua. El'der ui^- 

* ^iil 1850, wlien he sent the'n^gro-womji.njko defendailt'SrJko^WJ 

(Sn'-his, defendant's, wife^ and the boy afterwards ran .atm[ 
' *4nA w.ent to defei^d^iit's who refuged to giye hhn up/ ''3<()^llwa 
Eldei; died in 1^51, aind th^s suit, was instituted by the olulchre^ 
>f defendiGint'S'Wife, the donees in the d^ed^aboye men^oned^ 
Id r^coy^r the property, and the CeMSfts aforesaid ap^afe^ v% 
• eyi^depce* the Jury found a yerdict for. the plaktiiBs}, It^^ip^ 
vpop, defendaiA moyed'for a new trial,. *st(kting In his ruIe-.tJil 
l()llQ.^ing gr^andsi Islt.Becai^se iHe yerdict is conf {^)*jf ^.^ 
evidence and the cl^arge 4f the Court, the Court hf|^?n|g.iSi|i^|[- 
•d t^o Jur}^ Mnong other things, that if they Il^U<|3i^?fi(^ 
^^ evidenpe, that Joshua Elder had given the*piu)neity in^As^^' 
f^^ tg Mrs., jSarnett, afterwards ^irs. Wellborijy \^te ^fi 
f^rt'iage with defendant ; aild that said EI4cir.top)c possesskrt^ 
of th^ said property, on the-day of the marriag^^r'sQ Q^os^|^ 
b^Jore that tnere was notj^a ^ufficibiy; r'oas^i^abk tibg ftt^-Ju^ 

• * ^ * 






HA:C0K, IPBBRtJARY TEBM, 18^ 'isk. 

*, ^ - ' , Wellborn v$. Weaver H <it 






••-««»*ii4-M>^-v*i>Aata 



tjaraditX^ow Mrs. Wellborn) to have ingtitttted suit in her oibuqT 
idglit fi^nst said £\der, before^ her marriage with defeodaa^ . 
.for 8^ pvep#riy ; thai io du^ pa^^v the 8tatixtait>f Liaittatiotm 
^woydd not o^mmeaee Wttin agaiiu^tthe rights of Mrs* Gatsetii 
(iM>i? Mrs. Wellborn) ; as before stated, the property b^g ifr 
^ W own r^hl^ d:^ shei being Afejne co^eri^ iht Status woid4 

* Bot ruD duriog her eovertore. * ■ . . * > ^ 

' • -2d. And farther contrary to Aio* charge ^ liie Court 4&nd 
4^ evidence in this: tlie Court having charged die Jury, 
wKmg other Ihings, that if tbc^ should be of the opinion, froxft 
the evidence, t^at it vias a gift from Elder to Mrs. Ga»et^ 
^w Mrs. Wellborn) as bef<^e stltted ; and also, that the Stat* 
«eof Lhoit^tioas ^<r oomxoeace to mx ag«i.t tU rights of 
JUrs. Gamett (afferwa^ds Mrs. WeUbem)*when Elder took 
possession dt the property in I8SS; that they should find tsft 
Ihe defefldant, unless they should be of the opinion, further, 

* ieom the -evidenee, diat^ Elder had had the possession of the 
property,' and hdd^. same adversely to the tights- of Mrs. 
Chimett, afterwards Mrs. Wellborn, fcr four ye«1s b^<Hre he 
VDiMreyed the same -to the pkintifis. 

3d. Because the Court erred in refusing to charge the Jury, 
^at the paper which was relied on by plaintiffs as title in them,% 
was testamentary in its character and effect, and could not be 
.proof of title in plaintiffs, without fii^' being proven in thfe 
^oupt of "Ordinary, according to law. ' 

. 4th. Because the Court erred in charging the Jury, that the - 
a&id paper was uQt testamentary under the evidence adduced 
,in this casC) and in order to make it so, it itmst appear to be' 
such from the ^aper itsfelf. 

* , Sth. Because, tiio' Court err^d vbl adsoittiai^ the eyideDce of 
Jk^ Chandleraad bthers^ to'jMnonre.the declarations o^ Eldef ' 
.tiefore the jnaking the deed i^ plaiiUrffs^ said evid^ce beiiqj 
^i^ted^o bgr d^lendaftt's Counsel, at title tupa^ it iraa offered* 
mi WMtted by t)ie: Court] the dedarafiUms .toeing ii|ade>faHt 
ia iMtmattBsion ^of the |)»e]^rty ^ad e^exokaDrg acljr of own^^rdiip 
5«ir it^ shom^,titfe,^-iw^ •. . 






iw . -gUPEEME COURT OF GfiORGIA."- 



I . i " I ■ ■ ■ I ■ ( I " »*— — tg»A 



ip iMja * 



WeUborn w. Weaver >^ al: • ' • • • 



U^ 



'• Which motion for a new trial was over-ruled by tbe Conrt^ 

ftnd on this decision error is assigned.^ 

. '• ■ ■ 

. Sims ji^ Hammond; Buchanaji, for plain tltf. * " • 

• , ' ' ' 

* Boyal; SPEBRj^Vor defendant. ' .* • ♦• 



• 4 • 1 

- By the OourL^^vuvms^ J* deHvering^ the opinion. 



• - 



• I 



# » 



, [1,] A new trial will not lie granted, beda^.lrher venfiet <^ ' 
tbe Jury JA contrary to the qhatgeof ti)« Cofurt, prorided iiai^ 
lierdici is according to law.and i^he ofa^i^ is against it.. \ 

^2.^ Now^e are clear that ;^e 8a;niig m the Slhtf#9 xA 
l[imitatioDS in {wwr of feme eovertSy ,doeB.iio<r'a{>|i][y whete du^ . 
fame Was dis-e^v^/tat the time her right of lM>fii6n acctaed,^ ' 
liotwiikhstanding'sho n^ay hare married^ sqhs^^nljy^ oa ibm • 
same-day. .^ - , • . ... ». \*'\ 

' . [9.] In.^er wordS) marritiff§ may ba poMpon^ ^llKt •obt 

^ d»e Statiit9*«f Li&iitoti<2ik9. ^ Aud thm lAeAct of l^Vr^\OaK$ . 

.' fkg^Bty .567,). which stdps' l&e running of^thid: Sta^ajt^ a« t^ iAi i 
fitBj 'InnatiGS and in&^ts, does not extend i;o marlied wio^nM^' 
a^twitbstitBding the intervemag.disability of. dov^rttrek • 
• [$s] Mbreav^^ the negroes in dispirte yi^re taken^fipsseaaidi^ 
of by JbriuM l^der b!»for< tbus marriage of his da^gbtor^ Mb(>*' 
tlarnott^^witb Wetlbofti, the de^ndantj Md that being lo^ tfaw' 

• bett^ opinien is, not only that WeUboA^ 9»^^'%ai^'«iB^ 
^one, but thai he mtiet ha^ • done 9o« Ani tba reason, te* 
signed iS) because the Iaw*tran3fer9 the property ta him^ ajfd* 
$he«W]fe*faadim>*intef«Bt m it.^ (S^ .1 ChUstyff ^UokstH^ne^ , 

. * Hthi8bse,ni>toidyd]dthe StatoMof l4|mt^ 

' «Jr»iagidbit«iiewifb4h(^ 

iepTOiing CflTvertanf b^ it e^naiAenced to ir«t^' l^jatn^^)^ 
.b«t4<a^'fr«tf t^e tixae <lf. the >Mfi^' ^Mh^iMlvi. #11^ 



,B(A€6t>r, FEBBtTAICT TEBM, 18^ ,Xti 






Wellborn vt. Wearer HaL 

I ' ■ ■ * ■ ■ ■ ■ ■ • * i 



Btaiatocy title o€ Joshpa Elder and these ^immg under him 

c<»)plete. 

- £5.] What is the true character of the paper jezecuted b^ 

^ J[oehaai Elder tfy his j^nd<>cluldren ? Is. it a deed or a testa^ 
Befi^t? There is' a conflict of withority upon this point; i^nd 
Mtr opiluon.bas not b^en formed without some hesitancy* 

£6.] The Circuit GoUrt held that it was a deedy.and t^ ens-. 

^Bt of American cases is eertainlj with th^ decision. liVhedl^^ 

7^htz%. Whtelright^ 2 Hfm R, 447, is the Jeadihg authortt)^ 

. ifti that side, and ha8*l)^n cited and followed as law, withon^ 

qu^tioning^ in all the subsequent adjudications. It was an 

'application for partition. The petitioners produced; ii) ewj^ 

]^Bt of thei^ claim, two deeds purporting to.be conveyances of 

Hie premises; and the dispute was, whether ,or not the circam^ 

stances {lit^nding thj^ ezecution^mounted to a delw^ry^ wjucb 

* jt was admitted was. essential to their operation, The evidetfoe 

w^ this : -Natbanitei Wells, Esq. testified, that in the ^ear X79S| 

'Joseph* Wheelright, one of thee petitioners, requested him, by, 

diref^i^ from his fatj^er, as he Boidj to wijte these two deeds ; 

k^t having written theol, the father called upon him an^ 

,)rigned and sealed the two deeds in iJie presence of the witi^aSeb 

' #iid his brother, since deceased, and delivered them to him for 

%he zffie of the grantees ; that it was the intent 6i the .parties 

• fi&at the gt^tor should 'have the use of the premises during 
^ iife ; and as bome of 'the grantees were minors; «nd (oilld 
.net8eci|Ere the use to him, the deeds were delivered ^f^escroixm^ 
* • ai he ei^ressed it, to be dellve^^d, by him^ to the graliteeSj^ 
iqK)n the death ^f the grantor, which the witness had isiQcord- 
kij^'doiie, • " ' , . -^* 

tipon this proof^ 'Ghief Justice t^ arsons cenceded, th&t*tbe 
^h|^ti6n,, that the^ testimony did. not 'sufficiently show that 
liTese ddeds were delivered by the grantor, in his life time, to 
the^gr^nt^s-or. any person authorized by them to receive the 
A/iMi deserved much consideration. Stoll^'ha held the law to 

. JW weU settled, that if the ^ntor deliver any writing, as his 
jieed, tQ A thifiLpersoi^ to' be delivered over^ by him,, to the* 

. |^lij||b^,9fe^$<^;fi^ qvent> it. is die ^ras^ee's deed {eiaMai^ 



» • 



m^ . • gfj^BfiME COVWI OP ^E6wax# • . 

^ - . ' I * f — i-r- — . -^ g *■■ ' ' ^ ' ■ ■ ' ■ 

Wellborn t», Weaver ft oL' * 

fy^aod the Uiird {^er^on is tbe tm^e of H for die ^rantee^ 
J^d*in 8uppor);of tbis coxKchiaiony tW learned <7hief Justic;^ 
kefers to Pirhmi^ 148-'4, arid Bmhell vb, Pa^m^e^ (6 JSfi^ 
&m,217-'8.) ..\ ■ ■ . ,. • . . . :. . 

I w^uld 'merely reibark, that in ttll the caaes qtioted, the^ltf^ 
|)ers were deUyercfi^ confessedly^ as esttrotve. 
^» In-the seeond ei^pu of the MassacHttsetti Reports, t^ |at^ 

. pviety of this opinion is- Soviiedy in the inodest fbrra of ^ Q^erei 
i^^n^eSi in a nW to the .case, by the editor, }IIt. T^du • ' - .. 

[7.} Can' ft be snstained ti|)pn prineipW? We do. np^ eodr • 
farovert the dodtrine, thfkt Ail flfu:ih,aGts as .giro estates dire^d^ 
pjt b^^.way ef use» are good .^t first, an4 tha&the tiling gra&^^l 
w^en the deed pf grant is. delivered ip the gra&Ws |i^, ^a^ 
Vest jn the \grantee before he h4s notice of the gra^t, et i^pe^ 
to accept *of the thing granted ; so that, if lands t'e granted: iBi* 
ttiedi«ltely; by feoffment; gift, &c. the ibi^^g gnuited aba) be * 
said, to be in the grantee, and die igrant go^d j)iefore*n<>tic^' er ' 
agr'^ement, untU.dbi^gi^eitient. -^ {IShep. Touch. 285, ^ Vm** 
ifUj 198. Shmer^ 808.) That every mw i^ ptes^ped t^,ad- 
H^nt to, aigrant made lor his benefit. ' (1 Bonn. 562.^*3, afSbSL Sl%« 
620.) That i^ile it is* true that a d^d talces eflbct frdm ^* 
adivety, which may be by wprd»>ith6ut act, « by acts ,«ek» ' " 

, out vforde^ that such delivery may be either, to the gian^' m^ 
t|o a tlprd persbn, who.had pO special aathoritv, fi^'.^e^^^ ^ '; 
Ae grantee. (SKep^ Touch, bl ^and' h%. * Vowper"^ K 2M. 
l^^ohm. 536. 1 N. S. B. 85T.) y . .o . - V / 

/ £8.*} And farther^ that it ianot Essential fo the ya)if[ deliW- * ' 

^ ly of a deed, that thi^ grantee be present and^ tha^^it^b^'JIi^ 

^ <;i^ted by him. personally. {ISl Johm. 5S6. 12 i£rM>*JR. 

'460: .17 do. 220. 9 do. 810. * iskep. T0u!h. SiS.^ , • • 
{^.]- Moreover, ire admit that the ipere r^tention^f *die cj^ij^ 
by tb^ graMei;, of itself, ^will hot affecfits valicBt^^, wftljw 4k*. 
be doolared or aoaer^od, at l^e titiie«f iti9 exe<W^)11iM.r ~ 
4ked J9 Qo't topsasotatof. the poQseesionief <^e ^antpf, 
860. IP.Wnit, iWT. 2 <«i»«8i». -ivft ow-diiiii 



• * 



Mice*, FlBRtARY ^RM, 1855: 2% 



■ > ■ ^ 



•Wellborn w. Weaver et al. 



J^d/to a thiW person, xlb fhe agent of the grantor ^ to hold 
fifing the life of the grantor^ and to he delivered at his death 
fo the gftintees, operate as tke deed of the grantor p^esent^f 

It is dear, from the testimony, that William B. Browii, to 
-whom the paper" iras deliyered,* was not the agent of Iwthjpar- 
tie^ mach I%s6 the trustee fdr the use of the gf antef s, whith 
Ifellsy the ^Httiess, Iras assumed to have be^ by the ^roof im 
<he case of Wheetrigfiis. On* the contrary, Hi oVn h^W 'the 
deed subject to the control of Joshua Elder, as At« agent^ and* 
ei»entenBandabIe by him, retaining, as'he did and int^ndbdlo 
A),' the absotate power over it. The grantees cculd, by no acrt 
*<m their part, entitle themselves to the deed'. The grantor 
never p'arted, with the dominion over the title to the negroes ; 
and the possession of Brown,* his ageift, was, in Judgftiefit and 
••ntemplation of faw, the possession of £lder,uhe principtd. 

£10.] Conceding, then, that Elder intended to vest i^r^wn 
with authority* to deliver thi^ deed' after his death, and dep68it- 
ed it with ]iim tor the* sole purpose of enabling him to do so-, is 
. dds an actual delivery of the deed ? For while an authority 
to deliver may be revoked and* is absolutely d^ermined by ,. 
dearth, die d^tVefy itself cannot be recalled. A deed deli^red 
h out of file reach 6f the grab tor. 

Did the. grantees — the grand-children — acquire arty title to 
Ab negrOto until the deed was diUvered to them ^fter the 
'(leath of Joshua Elder, the grantoi*? * Did Joshua Elder divest 
Un^lf of the title to the slaves, by de|)ositifig the .deed with 
%6 agent, snbjtBfet eXOhisiv^ to hi^ own (fontrol, a^d in no 
^pre^t to Be deliverec( till after his death ? Btown had i^o av- 
^ority todelber the deed daring the lift of Ild^. • Ite w^a 
^pressly. reiilrained m«^ d^rng .this. Ha'd ho *doDf it 4iis de-^ 
Ikerj Vonliil hAve* been VoM, *Bot being in pursuanoe of his tfti^ 
Aorfly. E[q ha^ only » nah^ power to. delS^'er ihe detd, aC- 
t^ the dedth of the gri^itdri GoWd BHer creitte a^ch a^ aa- 
4iotify to*,b& ^x^etuted aCl^^f kis death, a^coupled with an in- 
iires^? -No vaiiotfii; we apprelteiu], bjr deed, touch lese^y 
|^ar«)) frea«e 4. natid fow^^ w4icK Bhijl>«iH'vive'hiiB* Tor. a)- 



274 * SUPREME qOlJilTOP GBOR^fi. 

. : : ± S firt a , 



Wellborn vt. Weaver '«/ b/. 



iJiough the authority may, by its t^ms, be tttfliinitei!^ if iB, 
^ nevertheless, detferlnindd by the* death of th^ |)rlncipalw (CfeJk 
^intt. 52, J. 4 Bo. Ch: Oi^. 2T1;) **;:'*' * 

!fhesc authorities and numetous others, which mfght be cil^ 
to the «llme 'effect, establish th'e Toregoing ,p08ition. BroWs 
authority, thferi, was deteVnjined *by 'the death of TElder, anllhe 
•delivery 'after wds void. Signing, sealing and the delivery of 
a deed, miy-^tther br all be perfoi'meS by an Attorney. They 
•• must be done, howevdt, in the' life time of the grantor. If the 
^a!lto^, after the execution oi* a deed, ^uts it in his scraltiTe 
'or han^s it to his a'gent, deplaring, at the sam^Hlme, that*}t'is 
Dot t5 be delivered till his death, it is inoperative as a derf, 
f6r want of actual tradition. 

j]ll.J And it by no fiaeans relieves the difficulty, hy coasM-- 
eritig this instrtlment as an escrow. Delivery is asessentiallo 
ad escrow as to a deed ; the 'only difference being, that in 'one 
«afee the grantor. maKes the delivery to the'gralftee, and in 4e 
otter \o a stranger or third person. In eith'er dal^e, unVd'tJie 
.grantor makes the delivery; the instrument is 'a dead letter. 
{Perkins, 137, 138. 8 JoJins. R. 248.) 

[12.] Generally, an escrow takes ^ectfrdtoi tie sjjconddeliv- 

. ery, and is to be considered the *dSed of the i)ar{y froA that tidL 

But this gisneral rule doe8'ilotSi.pplywhen justio^ requires a w- 

aort to Action. Thp retatW back to the firfet -delivery, sq 13 

to give the deed effect fr6it> that' time, isiaJW^edj in cases'^ 

. necessity, t6 avoid injury to Ijie vperfttiotfiof the deiid^'fit» 

events ^apposing' between 'the Qrfet andsecond delivery. .WSirti 

o*e ^akes a deed and' delivers it as vteiesctQWy a&dtUes ; ork 

*,liie case •oVtif^me soUy marries fcefbre .the aeeond delivery, Ite 

iilati<tn bftcktp th6 time wtteH tlie gmntor was^ir life^ or.^ 

ykm^ ^as #ofe, is neoessarr to FenJt^r *ther deedf vfl^. * ijt A 

^hmJ^T. 'la *r<ii«r't i^ 29./ Orutk€'^»ig^,l. $t. 0. 

S, §8T . tQM. , Vom. Sig. Fait i,A: «.> . 

And upon tb«se cteeJirteNdl caste; ^dge Pjnt^OM ]^t }riB. ii- 
^i(m,'in Wheelrightns. n^A^Iri^/^{, al^<d«oi4e4^ ^at a ni^ 
tki>[^ (eliv^eA t# *eiMtft«r b^ ttw gntetCir, '(^ as Us 4^)^ 
be delivered to the ^{mtees^ after the imik tt 4m^ yiN^ii'v 



Wellbom w. Weavpr-rt oZ. 

* • ..• 

IjMomes ttie^eed of the grantor, byducb second (felivety, Arpoi* 
^ tiiqp o^Ule first delivery. 

- Btit;'wa8 t)u8 ittstroment deposited in the hands of Brown aa 
BXi^^itMCKaw ? In every xase of an e8cr<m ikere' is a oontract. 
aad privity between the grantor and gn^tees. ^e peFSou to 
wjiom the deec} is delivered is, by mutual agreement, constiti»> 
ted the ag^nt of both, parties. He ddee^ not hold tKe dee^ 
subject <o the control of the grantor. He has no pow^r ov^ 
it, and can no more countermand .the delivery of an escrow 
than o£ an absolute deed. And it is always in the power .of 
i^ grantee tp entitle jiimself to the deed and to the estrvte, by 
perfoianing the stipulated . condition. And when^perforip^d^ 
tiie -deedt^kes its,whole eifect by force of the first delivery, 
vitbout.any n.ew d^liveryl {Penymdns Oasej 5 Qoke^ 84, b.) 
But her^ no money was to be paid — ne condition to be per- 
formed. The delivery* was dependent merely upon the laps* 
of time. In,such a case^ is^ it nqcessai^ or proper to resort .lo 
a violent fiction, lU res valecUj ^cJ ... 

Ill every one of the excepted cases cited bj; Judge Parsons^ 
there was a conditi&n to- be peiformed, as a part of the gour 
ipact, and that, (oo^ for avaluable consideration. Under suc^ 
^cumstances^ there may be some propriety of' putting a cas^ 
i{i*thia| class of exceptioife. But such was not the case of 
Wheelright ; .neither is it the case before us. We say this 
witii all possible respect for the ejainent Lawyer who made, 
tfU^t decision. « * 

[IS.]' Being satisfied that the act of registering a d^ed dees 
not *Sftmount to such a delivery of it as will transfer the title 
from ttioigrantor to the grantee, and that it being placed on 
tb^ record by the direction of* the grai^tor, is, at most, but^rtr 
mafacu evidence of its delivery, which may be and is effectu- 
ally explained andrebu&ed by the testimony of plaintiffs theni* 
selves, it^ appears to us unnecessary to enter into a minute in? 
jKistiga^n of the doctrine upon this subject.. 

[14.] Whether an instruijaienthe a deed or will, does oot'd^ 
fend on its form or ifianner of execution, but upon its opwa* 
tie^y tias been repeatedly* ruled by this Court. If it is not to 



»• ■ I, I i 1 ■ if *' 

Wellbbra vi. WeaVer efal, 

; »; r 

dftonXe till a&er the deatAof him ivlio iQaJces it^ )t is i^ wiM, 
whatever he its form.' A deed, if made wi^ a view 4e tf lc dii t 
p«8itioii of a mt^n's estate, after his death, willima(p, ^ ^a#, ai 
a device or will. {iShergeld vs. Shergold^ 1 PidlhnC% R. Ifiy 
%0te (A.) Warwick^. Taylor Ih. note {u) TherM^ t% 
Vheroldy lb. p. 1. Chreen vs. Pftmd^ \Mod. M' 11^* P^^ 
cacjc v8. ^Kimit, 1 Fea. Jr. 132. Seek$on vs. Wiihami, 1 C9L 
fia«. 248. Metham vs. T.he Duke of DevonshirSj 1 £ieeH 
W. 889. ffealetf vs. Copley y 7 Bro. Par. Cos. hy Tom. 498. 
Attorney Q^eneral vs. JoneSy 3 Frt(fej 358. Dyti'j 814. ^ 
JrtL'97. Powell on^DeviseSyhy Jarman^vol'.lj.pp. 10, ^ 
noW. 1 Boberts on WillSy p. 146.) 
. In Habergkam vi. Vincenty 2 Veseyy Jn 2Q4, this )chol6 
subject was elabora^ljr discossecl and the law deliberaMly set- 
tled as here stated. All the authorities .-that bear on: t]MS ^aeff- 
Kqq are there collected, on whiah that profound I^^wyer, Jas- 
tfce BulUvy says % ^^ These cases have establi^d^ that an, in- 
strument in any form, whether a de^, pdil or indenture, il Ae 
obvious purport id not to take place till after the deHth of ibe 
person making It, shall operate as a, will, ^e leases- for that) 
Are'both at Law and in Equity ; and in one of these t&ere WeH> 
express Words of imme^iat^ gtant, and a co.nsidQrUtion to BOfh 
port it as a grant; but as, upon the whole, the intentiq/i waq^ 
l^at it should have a future operation,, after death, -it was eos- 
.sidered a\i a wiy." (p. 231.) , ' 

* [16.] It was held by the Circuit Judge, that atf instrumtot 
Which id in form a deed, cannot be converted Ita to a wiQ, unless 
it appears, Arom its face, that it Was not to operate till aft^ 
th^ dese^th of the grantor. But the authorities do nQt warrant 
this distinction. On t(>e qontrafy, it has been re{ieatedly heUt, 
.t&at the intention of the maker may be ascertained, not oo^ 
•from the instrument, but'from extrinsic- testimony. (IModem 
.-iJ.'llT. "2 KoU ^ Me Cor dy 6S1. MiUSdge vs. thrndTy'^ 
Less. 617. HabergKam vs.Vincenty 2 Yes. Jr. 264, 3dt 
'fiiffden vs. Volier'y 2 Ves. Sr. -265, 2o8.) 

*The reeuft of the whole matter is^ then,-that theplaintiffdcaB- 
'ilot claim title to. the property in sdit^ under this instruantH, 



L 



• « 





uadiMd; but that if valid at afl, it iflttgt be as ft tfiOWTg^taiy 

^f^^ aBd'be proved accinrdingly. 

We Bete xxo error in tbe Court in alloivjng^tbe teptimonj^ of ' 

Ohandler tO.be introdnced, as to thex)laim of titlerto the ush 
ffoee bj SIdeCy tAiikhe had them iA possession^ not that }m 

•conld •actually create title in himself by suoh decIf^TAtionSy b«t 
^7 serv^ to* r^bnt the presumption, that he hllld jta trupt^ 
Sor his dat^bte») t^<i tkns, answered the pdipose* of fbrtifTing 
Us poeseesovy t^llel 



• 



• • • I 

-,— . 






•»■ 



. Ko. 51. — Wk^lum J. -Russell, plaintiff in err6r, vs. JSu^kbi- 
' * U8 Slayton^ defendant in error. 

;[!.] The Superioi Court hM aathoritj toorder iti Sheriff ta disposses^a claitj^- 
ant who is in possession of land, the title and right of present possessfon to 
which has been determined against him, upon trial of an is^e formed nit* 
der oar claim laws, and judgment entered directing the* s^me to be sold ; 
aqQft to pat thfe purchaser into possession- thereof. 

Motion, in JB'ayette Superior Gooft. Decision by Judge t). 
Wabner, September Term, 1854. i * 

« 
A^fi.fav in fa¥or of Tbomad M. Jones ^s.^i. T. and^J^ W. 

DaTiB, was l^yied on a tract of laatl, to Fhioh Ensebitts Slay- 

t^n interpoeed a claim. *The land was found smbjeot, ap^ the 

iBhmir cnrdered«to sell. At thp. sale, WiNiam J. BusseUibe- 

Apae the'pjwehaser. The present motion wiMi for an or4er to 

1^ Sheriff, Teqairing to dispossess the f laimaQt and put the 

p^ehaser ka possession. ' The Court granted Uie order^ aad 

CogAsel fer SlaytOQ excepted— ^l8t« Because there waam^no- 

^ ta Slaytoa of the agpUcatioa foQ tHid order. 2nd. BecaUK 

the Court had no authority to grant the jorder. » , 



' Ku^el^ v«. Slajton. , 

if^ ; , ;^ 9 ■ '■ r^- 

•HineS & X30NNER, for pUi^tiflT in error. 

. , . • . . . . . 

•*-j9y the Court: — Starnes, J. delivermgtbe (^irfioh* . 



• • 



.[t.]Oectai& Acts of the I^egidatare'lMi7e/b^dn vxtbd hj^ ^ 
Qounsel for^ the plaintiff in ^rroty as inflaencHig^this questio^t 

Reference has been made to the Act of 18^ .whi<ifa mak«8^ 
it the duty of the Sheriff t^ leav« a written 'notice with the 
' owner, when he levies on land. AIsq to the Act of 1811^ 
wkieh p)*ohibits the ordering or issuing of writs of possessiim 
by the Jndge pf the Superior Qonrt, against third persons, pro* 
vided'such thii'd persons shall notf«be knowp^in thetsniton 
which exeoatiomis founde4« noi^ l^a^ve been put in possession, 
nor claim under any conveyance from the defendant. Thft 
A^ x)f .lS23was also referred to, which' requires ^he Sheriff t)t • 
Coroner to put the'purchaser of real estate in possession, (wilh- 
qnl o^der) but forbids his turning out any other person th%n 
•the defendant ih execution, his heirs or tenants^ if such -other 
pgerson wercift at the rendition- of the judgment. 

It is plaii\, that neither of these Acts 'apply to the .case of 4^ 
claimant in possession of land, which, in an issue formed under 
* our claim laws, to which he was a party, has been found subject 
to the^. fa. a^ against him; and whom it is proposed to cUa- 
possess by order of Court. Two of thefce Aets show, howevei*, 
that while the Legislature has been cautious, and has required 
Obuilis* smd niinisterial officers to be so, in diapossesstng persons 
wilese tftles to land have net been tried; yet, it has exercised 
equal ^are- and cautidnin avoiding any interference with*th^ 
right to deprive those of possession, whose tights havl^'beM 
fHed: The provisoy fof example, of the Act of 18^1'i^ *H}M 
stlch person" (die third petson whoit declares is npt to be H^^ 



fomeaatij) ^ shall not be known in th^ suit t)Rtwhidh 

is f»itnded, nor h&ve been put in possession by,- ot eiaimed 

dfep or by virtue of any conveyanee tr^m the defendant n snob 
ij. »f • • • . . 



suiL 



irXCOK,- FESftTTABY-'TERM, 'l8|6. 2fi& 



^ 



Itusa^U V9, dlajto^.. ' 



Ndr is there any other. Statute in oitr State, which has pi;p- 
Bcribecf the njetiiod of^ enforcing. juflgment in cases dedWed 
against clainiants* to real estatid,' det^rlnined agaHu^<theni un- 
der our claifci laws, who are in possession, 'alid who continue. to 
hold pos^ssion thereof. 

^ The question mu^i therrfore be det^rtfiined upon the gener- 
al principles of the Gommofi Lsw, and of practice ; and b^pe- 
pecially ,*upou the principle, that tfie Courts hate all power ^e- 
cestoryto carry their legal judgments into .<?omjflete 'ifjfect. 
They accordingly have authority to cany their judgment in 

• claim Cases into effect. . • 

The jud^ent in daiin cases, after condemnatioh of the^o- 
p^rty where "the claim is general, and the condonftiatioti by 
verdict k getieral, is, that the Sheriff dt) proceed. to sell, Ac. 
as aga*ipst flie rights of the claimant of cburse. ' The verdigtris 
agaiflst him, *and it has detetmiccll the title against liini ; apd 
the judgment is, in effect, thut as against this title, the Sli^rlflf 
do proceed to sell. In*a case like that at bar, the judgment is 
against tife right to'po^ess presenfh/^ 'and thfsale is oY-fhart 
right; Cortplete effect cati be given to the* judgrtdut, in su<fti 
i daje, only .by placmg- the purchaser in possession. This <fc- 
wery*of the pt*6perty is title conswntoation ofthes^le. llTit 
*irere personal property. It would be dellyereQ at the pla^e-rf 
■side, in order to make the sale oonfplet^. 
' Tbiii practice is inaccorfl^n^ w?th ilre spirit of the Acts of 
1811 alTd 1823, which sancfion the propriety of th^ Court's 
difipos^sslng, nbt only the defendant in ^xectitio&, but all his 
lenahtSB* and privies. "Why ?' * Bec/iuSe their right and tit\6 

^S^ve' been .consider^ and adjudged. " •' 

' ' So trfvfe those of di% claJhiAit. 

' tiet the Jttdgmait be aiBhi^. 



», fc , 






#• 



m MfteE ,mm w <mk<m. 



J. 



HiJUifielcC adn'r, kk^ tw. SteU. 



plaiiitifi8*m.^rror, tw^JOHN D. Stell^ dei^ndai^t la error^ 
* ' • ' . '^ I • . * • 

[1.] One of the items in the last will and testametit of l^pbia^ ^aisetn- was 
asi follows : " I 'likewise |^ve to my son j^ardy Lasseter^ a negro woman 
named Kate ^ ^4 ^ ^^^ ^® ^^i^ ^^^^ shdA bear a ofaild io^ live to the cgjd 
of two years, my desite is Ibat my di^ghter, Christina Lasset^r, niay be 
*t>pS8esded of it; and'iii case th» said Christina " should di» mitfuiut eoi heir 
ofhtr bodffi^ then the said child to be sold and the money equally divided 
l^tween the |,hree eldest biothers uid their sister, namely : Benjamin liOf*' 
seter, Jesse Lasseter, Johd Lasseter and Rebecca Lasseter^' : Ueld^ thi^t the 
words o/ this beqilesj ex vi. termini^ xm^oti an estate-tail ; and there being no-* 

• timng expUumtory annexed to restrict thjcir meaning, an absolute fee>/ under 
tbe Aft^f 1821, was vested in" Christina Lasseter., in the child of* Kate 
«Dd its increase/ 

TTcover, in Fayette S^pexior Cour-t. Tried brfore Ju^e 0. 
Wjmrnbr, September* Term,- 18fe4» • 

« ^!|Xie sole question in this cte^ arose up^n the.^Qmt^ clftuse 
in the williof Tolii^s L^etec : ^^ In case the said Kate (a ne- 
gro woman) eliall beai^ a 6hild, to liv^.to the age o^ two jeais, 
V3tj desire is, that Iny daughter Chiistioa* Lasseter 'maj^be ppH^ 
peseed of iit ; and in ease ibe said Ohristina should diewithfHiii 
»n heir .of h^ body; Uxen tbe said ehild to- be sold, and tfie 
W>ney equaSy .divide^ between 4)he ^ite eldest biotMra and 
1)i#ir si^r, mamely : Benjamin ]#aQ3Qter, Jess^ Bn^feeter, Jo^ 
Jj^aaeier Vid Rebecca Laeseter." £>ite hAd a ehild whidi 
feaoh^ tvpcyears of age., Obiatina "went^nta j»ba^eeQian ^4t, 
«nd died without ieaving ehild* or o^iildii^il. T)ii8*a«tioa wafi 
brougnt by the persons to whem< the' estate was limife^i ¥h6 
Gouit held, that; u'nder this elansa'„ Christina took jra estate 
taN ; and this decision is iLS^rgned as error. 

* 

Buchanan; McKinley; Tidwkli. & Fvller, for plaintiff 
in erroR 



£h:$Lii ; Warner, for defendant In errar. 






MACON, FEBRUARY TERM, 18S6. 281 
-_*, . 

UotUflrid, adrn'r, Ac. m. Stdl. 



' By the Cburf.— 'Lumpkin, J. delitering the opinion. 

p.«] This was an action of trover, brought by the plaintift 
in error'againat the defendants in error, to recover a. nnmber 
of slaves therein enumerated. The plaintifis relied, for their 
title on the will of Tobias Lasseter, made in 1801, and admit- 
ted to probate in Greene County in 1804. It contains, amongst 
other things, the following item : ^^ I likewise give to my son, 
Hardy Lasseter, a negfo woman named Kate, and in case the 
said Kate shall bear a child to live to the age of two years, 
my desire is,* that my daughter, Christina Lasseter, may be 
possess^ of it; and in ease the said Christina should dl» 
without an heir of her body, then the said child to be sdld and 
the money ^ually divided between the three eldest brothers 
mnd their sister, namely; Bei\jamin Lssseter, Jesse Lasseter, 
/ohn Lasseter and Rebecca Lasseter/' It is admitted that f 
female child was bom to;the woman Kate bequeathed to Har- 
itf Lasseter ; that it went into the possession of Christina lias- * 
seter, and that the said Christina died ^' without an h^r of 
her body'^ Under these facts, the plaintiffs claimed the ne- 
groes descended from the child of Kate as remainder-men un- 
de^ the will of Tobias Lasseter ; which claim is resisted upon 
Hie ground that the limitation over in this property is too re* 
mote; and that in censequence thereof, Qhrmtinv Laaielcp 
took an absolute- fee under the laws of this State, in the slaresi 
And Kuoh ifas the judgment of -the Circuit Court ; which cb- 
.ei^on is excepted to ; and this writ of errpr is ^oseculod to 
reverse the same. « 

. Before proceeding to examine the bequest in this wiU, if 
ioAy not be amiss to glance at onr owp legislation npon tbft 
nAject TheConstitutionsof 1777 iind 1789 prohibited estatei 
tul/ * By oversight er otherwise, to suck Bro^sion wa^ eon- , 
tfitted in ithe Constituti(yi of 1798. Bat by llie eTudidafj Aek 
ef 1799, estat0S*taiI are forbidden. . 
* Beuits liaviiig arisen as ^ the true aiid proper o e iioto«u<^ * 



'• 



* 



282 SUPREMfe COURT OF GEORGIA. 



•" — ^ 



HoUifield, adm'r, Ac. m. Stell. 



of the compendious pravision in the Act of 1799, that *' estates 
shall not be entailed," and a contrariety of judicial decision 
itaving obtained in ' cons^qnence thereof, some of the Coorts 
lioldbg thiit. conveyances for fee-tail were a))SolQteIy voW — 
others, that they Tested a fee-simple estate in tlie pe^^-sonsto* 
irhom they^weie executed— and others again, that they vested 
only a fee conditional at Common I<aw. The Legislature, in 
1821, passed an Act to remedy .this mischief; t}ie firpt section 
. . of which declares, " that all gifts, grants, bequests, devises and 
conveyances, of every* kind whatsoever, -whether real or per- 
sonal property, made in this State and executed in such man- 
ner or expressed in such terms as that the same would have 
pa^ed an estate-taSl in real property by th6 Statute of , West- 
minster Second, (comn^only called the Statute de donis eonm- 
iional^us) be h<^ld and construed to vest in the person or per- 
sons to V^om the Same may be made or executed, an absalute, 
♦unconditional fee-simple estatd/' . {CohVs Dige^ty 169.) 

•* I will not stop to. criticise the language of this Act. It is 

obvious to any lawyer, however, l^at the expression " as that 

the same would have passbd an estate-tail" in real property ^ by 

the Sta,tute of Westminster Second, issuperero^tory^ insomuch 

. as th^t Statute did not ewhr^^e' perianal properti/., 

. * .1 would remark, il^t the •A.et of 1821. was declardCo^y and: 
. is to bt so inter^retedt ; wd it is' precisely the same as though 

* .the first section whi^h I' have qi^oted, wus 4ncorporate4 willi 
^nd'^iJMkde a part thei^f by w|by of addition to thle^^Sth ^eti«n 
Of the Aotiof 17^9, so that Uie whole wo^ild read tfius-: "^Bih 

^ tates shall not be entailed, and all gifts, gritnUi ^o.'* ^ thffi 

view of it, therefore; the first sectioni of the Act of ''1821 «x- 

^eads as. well to insti:;pment8 made before i^ passage as since. 

rJitn.o^er wco^ds^ it appKes to &]1 gift^^ ^a!its, bequests, dev^ 

I^Mi cotlv^^n\i!e*o^ every kind whatsoever, whether t^ih^al^or 

*^p«rsonal pnQj)Wiy, executed siRce 17^9« .% .• * • 

It . is insisted that' the Courts of this* Stale, under tiii^ AK, 

* «#f(^to*ap{^y {)ie i^me nde of con^truttion lo 'deecb.a^-'iifflU,. 
:i(%0ther o| real or persenal property, which j&e^Si^lM'iSbXrlS' 






MACON, FEBRUARY TERM, 1855. f^3. 

* HoIUfield, adm'r, &c. vt. Stell. 
'I ■ 1 — --i ;-^-" 

have placed upon similar instruments, under the statute de do* 
nis disposing of real estate. 

If so^ not one out of a hundred of the numerous adjudiciationa 
made in this State, either before or since the 6rganizati<^n of 
this Court can be sustained. The view uniformly taken hj sB, * 
•Ae Courts of this State is this : while our Courts have fek 
constrained,, by the stringent terms of the Act of 1821, to bring . 
aU cases to the test of the Statute of Westminster, they 
bave not felt themselves bound by the construction put tipon 
^}iat Act in England, and for this most obvious* reason. To 
favor the heir at law, the Courts there have wrested, confessedly,, 
the words of the Statute from their natural signification and 
common sense meaning, and given to them an arbitrary and 
technical interpiaetaiion. Now not only no such motive exists 
^ere, for doing violence to the words of the Statute, but a coh*^ 
trary policy should obtain. In short, while we, in ob^diende 
to the mandate of the Legislature, enforce the Statute de donu^ 
we read it as it is written, and &ot as the English Courts have^ 
made it, to subserve a particular purpose. And if this is not 
l^lovf able, we niust retrace oii: steps and over-rule, uno flatUj 
aQ that we and our predecessors have decided upon this subject, 
bfsginniiig wfth the ca3e of AtweJVs executors vs. Bameyj 
{Dudley's Bep. 207) and coming down to WiUiams vs. Atleti^ 
4^1^ a few days since at Cohimbus. * 

JSfot fMre we without au^ri^ for this course. The English 
OooitS) 'Aetnselve^ have ill deeds and wills of personalty, coi>> 
isftnied wosds in tiieir natural sense, and consequently hate 
been driven to the neoessityj I dhouM say libsurdity, of apply^, 
hg a different meaning to the same words m the same instru- 
ment,, when it contuned both realty and personalty. 

Hence, in our .opinion, this and like (Jases should be exam- 
ined in the light of English decisions, as to' personal^ rather 
tfMm as to realty; and that there is noddng in the Act of 
1821 wl^eh concludes the .Courts to, a Contrary course. Iff 
• v^ ^ so^ested, that by putting a rigid constmcftioii fpoii 
. Ae Act of 1821, and applying the doctrine of tke Ingiisk 
^QwtB, as to tealtyf to all conv^yanees islhis Stalej yeflbfdl 



^ SUPREME COURT OF GEORGIA- 

' HoUifield, adm'r, Ac. 9t. Stell. ' * 

^\ ' • ——f- 

iqtnti4mmel property at once; and that instead .of leanii^ 
against the Courts, should incUne In favor of that view ; that 
by converting the instrument into an estate tail, we do but de- . 
dare it a fee simple under the Statute. And th^e may be 
•something in this suggestion ; still, we can hardly believe tha^ 
it was the intei^tion of the Legislature, by the Act of 1821, to * 
prevent testators and others fromr rendering estates unalieiui^ 
ble within the limits prescribed by law, to-wit: during a life 
or lives in being, and twenty-one years after, and a few months 
more, to provide f(Mr the case of a posthumous child. And the* 
Act of 1854, in relation to the limitation over of estates, is 
Mnfirmatory of this conchlsion. (Dunecm's Digestj 8.) 

Take, then, the clause under consideration — *^ and if she die 
without ^n heir of her body, then,'' &c. Aa4-doe8 it, in <k>&- 
nection with the previous bequest to Christina Lasseter, tech*^ 
nicallyand j>r(>/?n[a-v^ore, create an estaie tail? A few re- 
ported cases niay be found, perhaps, negativing thia propod- 
iion. We are well satisfied, however, that the great curr^t 
of authority is strongly the other way. Turn to J)avie'% Abridge 
ment^ Conyer*8 Dige%ti Orui»e'8 Digest^ Fearne or any of ihe 
standard elementary works, and U4der the head of estates in 
tail and devises, the cases cited, are so numerous and apposite,, 
As to leave no earthly doubt but that the words of this wiO, 4t 
tl^emselves, and without explanation, created an Estate ta3, u\ 
0hri3tiBa Lasseter ; and therefore, under the Act of 1821, vest- 
ed the fee simple in her. And it would be an absurd ai^t»- 
tion of case4eaming and adroitness in case-hunting, to dt^aih 
thorities upon this subject. 

' Have words of explanation been annexed by thfe testator, i|( 
liug wiil« which may oontrol the technical {Jmuieolcligy wlJqit 
be has emplqyed? ' Mr. Sargrme denies to- the , Courts the 
right to institute any such investigation, «id insists, that the 
rde is a policy of tile law, and that it is of a\ (rtiality, rigU^ 
stubborn, im|ierious, irresistible, and so inde§pensi^ble as to be 
above |tU ea^eeption whatever ; and that, firm ai^d immovaJde • 
itt itb tlaiflQi of able empbe, and looking down Qii4»i«ate inteiir 
H^il -«B.^'lar«64 ^i(ls^^y (he rule will neither gtve^nor 



MACON, FBBBUABY TBRM, 1855. 2S5 

■ . * HoBifieid, adm'r, Jic ot. Stell. , *. ■ 

■ I ' ■ . ■ . I ■ , I ■ .11. „ ■■ ■# I 

• 1 

of ^7 terms of capitulation. {Law TraeUy 562, 574.) And 
that he woold apply the rule, notwithstanding the party should 
express,, in his will, that the rule should not be applied, and 
that the remainder to the heirs of the tenant for life, should 
operate hy purchase. {lb.) 

\ Lord Mansfieldj on the other hand, in Perrm and BlaTcCy 
(6 Cruise^ 389,) observed, that he always thought, that aQ thd 
law ha<l allowed' a free communication of intention to a testa- 
tor, it would be strange to say, ^' now you have communicated 
that intention so as every body understands what you mean ; 
yet, because you have used a certain expression of art, we will 
cross your intention and give your wiU a diffe]:ent construc- 
taon ; though what you meant to have done is perfectly legal, 
and the only reason for contravening you is, because you have 
not expressed yourself like a lawyer.'' 

The Courts in this country, at least, have followed the lead' 
of Lord iEfan{/!e?c2 and those Jurists who maintain that the le- 
gal intention, when clearly explained, shall control the legal 
sense of a term of art, unwarily used by the testator ; that he 
shall be allowed, as it were, to correct the inacci^acy of his 
oVn phrase ; thst in the sturdy truism of Justice Reynolds^ in 
old FUegib, 113, a man shall be permitted to speak his mind 
in his will. 

i And it may now be assumed as settled, that there is no form 
of words, .such as ^^^ heirs of the bodt/j' ^^ dying without iesue^** 
*4X any otber sort, which will not yield to the manifest inten- 
tion of the testator, provided that intent be consistent with law, 
and provided it be so fully expressed in the will itself ; or else, 
may be collected from thence by such cogent and demonstrative 
iprgilmentB, as to leave no doubt, in any reasonable mind, wl^thr ^ 
eri^ was liis intent or uQt; and such was the opinion of Sir 
William Blaekstonef in the. admirable judgment ^hich he de- 
livered, in Berrin and Blake^ and which stands unrivalled as a 
specimen of Judicial composition. {Har. Law Tracts^ 502, '3, 
'4,7.) • ■ 

1.* The word ^^ then^'' in this beo^uest, is relied upon tts re- 
flmting»th6*.mew}iig of the words, '^ should die without an 



2m SUPBBHfi COrftT OF GEOBGIA. 

. ' _ _ _ J 

* #• ; / Hollifidd, adm'r, &c. M. SteU. ' * . 

l^eir of her body," to an heir living at the death of Christina 
Lasseter. Concede that the word ^Hhen'' is an adverb of 
tune, does it refer to the death of Christina Lasseter, or to the 
failure of the heirs of her body ? The cases cited by the 
learned X!ounsel for the defendant in error, and oihers which* 
imght have been adduced, show conclusively, that it does not,* 
relate, to the death of the daughter of the testator, and fixing 
that evQnt as the time when the limitation over to the plain- 
tifts was to take effect (I P. Wtm. 663.' 7 T. B. 551. 2 
jl«Hn'.507. 1 Bro. Ch. M. 174. 'LNbtt ^ MeO. 69. IHxWm 
Oh.B.Z%.) 

In most of the cases, this word is not considered or regarded 
as having any operation whatever, either by the Counsel or 
the Court; and whepev^ it has been^ relied on, it has been 
•emphatically over-ruled. ' 
* . 2. It is contended, that the circumstance that the property is 

, a negrOy necessarily restricts the meaning of the words in tiie 
' will, to an heir living at the death of Christina Lasseter. The 
prompt and proper reply, by the thoroughly prepared Attor- 
neys of the defendant is, that in l>av%age v$. Ohany, 4 Hitr* 
j; McSen. 393. Matthews v$* Daniel^ 1 MurpJijfy^2. Bry^ 
^on vs. Davidson^ lb. 143. Ghietry vs. Vernon^ 1 -BT. ^ ife. 
69^ Senry and Wife vs. Fidd^,^ 2 Mc. Oh. B. 328,/iimI B(h 
binsm vs. McDonald^ 2 KeUy^ 120, and many othmr case* 

* which might 1;^e ^ram^ratad, the st|bJQct of the bequeala^ wa» 
nogro proper^; and yet/the limitation over was. protioqnee4#' 
void.' And hence, it is legitimat^y coneliKled, that-die patnre 
of the property beqiie^thed, does not rpstrict the m^azdng oC 
the tephmcal terms. 

. 3^ Again, it is ar^ed that the artificial language, of thi^' 
* will, is r&straihed by th^ distributive disposition, that if (%ra- 
tina should die without an heir of her body, .^^then the s^ 
child he sold and the manejf be equatfy divided betufepn' tks 
thre^ eldest broils and sisters" jffi. But npon this as uf&^ 
every o^er point of attack, the assailant ^e m^ and their 
blow p$med by their adroit and skilful aivj^gonigt;^ 
It 18 anawere^ and we think triumph^ntiy^ tbat* it ^16 mi§ 



• • 



# • 



MACON . FEBR UARY TERM, 185^. ^ 28T 

Hollifield, AdmV, kc. m. Stell. 

when distribntiye words appl J to heirs, as a class, and indicate- 
a different species of heirs from those denoted by the worda 
upon which they are engrafted, that they have a restrictive ef- 
fect ; that in the case At bar, they apply to the three sons and 
daughters of the testator, and not to a class of heirs. They 
apply to the persons speci^cally named in the will, to whom 
the property was limited over, and not to the heirs of the body 
* of Christina Lfsseter. If this )iad been a bequest to Christina 
Lasseter and the heirs of her body, to be equally divided among 
them, then, according to the ruling of this Court in Tucker v$» 
Adamsj (11 Ga. R. 567,) and the estaMished doptrine upon 
this subject, 4he words "equally divided," would have been 
words of restriction, because they would have denoted a differ- 
ent species of heirs from tb<>se denoted by the words, " heif s 
of her body.** • It is only when the distributive words chance' 
the ' line of descent marked out for property, by the words . * 
upon which they are engrafted, that the latter are taken as 
words of purchase. Here the fact is otherwise. Consequent- 
ly, the words, " should die without an heir of the body,'* must 
be taken as words of limitation, tbat being their technical 
aneaning. 

, Lastly — ^it is said that the limitation over, in this case, be- 
ing to persons who were in life at the execution of the will of 
Tobias Lasseter, effectually rebuts the infereoce, tbat an indefi- 
idtefailure of issue was intended. ' 

I Ikizard the assertion, that in more than- three-fourths of ■ 
the reported cases^ fr6m the year of 1286, trhen the Statute o/ 
Entailments, commonly called the Statute de donis was passed 
in the 13th year of King Edward L down to the present time, 
the 1im?tations which have been set 'aside, were to a person or 
j^ersons in e9Be, The earliest case to be 'met with under the 
Statute was of this sort, and was decided in the 35f A of Ed. 
In. {Pf. 14.) Sb in Sanday'^ case, (9 Coke, 127.) So, al- 
db, in the case of Kivg r^. Rumtall^ [Cro. Jac. 448.) PeTt 
vs. "Brown, (Cfo. Jac' 590.) Chadock vsl 'Cewley, [Cro. Jdc. 
695.) Bat I forbear to specify the cases. ' Tley lie scattered 



fl 
« 



• • 



288 



.SUPREME COURT OF GEORGIA. 



HoUifield,, adm'r, kc, v$. SteU. 



every where through the Books, ^Uhick as the autumnal leaves 
which shade the vale of Valambrosa/' 

And this deposes of all the words relied on in this will, to 
restrict the otherwise naked limitation, *^ in case Christina Laa- 
seter should die without an heir of her body.*' And we hold,^ 
with the Court below Und with the able and distinguished Coun- 
sel who have conducted this argument with such marked abili- 
ty, that the words of this bequest do not mean an heir of Christ 
tina Lasseter, living at the time of her death ; but a general 
and indefinite failure of such heirs, whenever it shall happen, 
sooner or later, without reference to any particular time or any 
particular event. And our judgment therefore is, that such at- 
tempted disposition of proj^erty, inasmuch as it would* tie it up 
for generations and lead to a perpetuity — vests the absolute fee 
* in Christina Lasseter, the first taker.' 

It may readily be conceded, that testators do not intend de- 
liberately to dispose of their property, contrary to law. They 
would be stultified by such a supposition. And yet, they very 
often do mean to give their estates to their children and their 
posterity after them, if they have any; and that withbut hav- 
ing any very, definite, period fixed in their mind, as to the time 
when the event may happen ; still, they do not intend it shall 
go over to collaterals or remainder-men, who are more rcmotcf, 
until the posterity of the first taker has become •extinct. In 
other words, so far as they have any meaning in" their minds 
about Ihe matter, testators do look to a general and indefinite 
failure of i^sue. This feeling is foimded on the dictates of the 
. heart; and hence, they use language expressive of their deare 
in this respect. 






• 






1 



' MACOIT, FEBRUARY TERM, 1856. . ' 289 



> ■ 



Clements vt. Haloaey, &c. 



2^0.58. — Charles Clemjents, plaintiff in error, w.Wm. ?•' 
Malonet, administrator, $c defendant in arror. 

[L] Where t^.Terdict of a Jury b against an odministratcH', m his represen* 
tative character, a judgmeat for costs should be entered ogjunst hhn in th6 
same character. 

Motion, in Fayette Superior Court. Decision by Judge 0. 
. . tfARNBR, SeptemKer Term, 1854. 

Maloney, as administrator of Fhebe Ryle, filed a bill agaiilst 

one Nixon, as administrator of James Ryle, to have titles per^ 

fected to certain negroes, and for a distributive share of the 

estate. Nixon died, and Clements, as his administrator, wai 

"made a party. On the trial, the Jury decreed that titles to the 

negroes be considered as made, '**and that defendant pay tbd 

costs of said suit.'' The answer 'of Clements, as administrated 

• «6f Nixon, denied having any assets of Ryle's estate in his 

* iuuids. On the verdict of the Jury, judgment was entered 

igainst Clements, individHaUyy for the costs. A motion WS8 

miMle to set aside this judgment, and have it entered agftinst 

, ten, in his representative character. The Court refos^ to 

gtant the order, and this depjsion is assigned as error. 

TiDW^LL & FuLLEft, for plaintiff in error. 

HiNE & Conner, for defendant in error. ' 

By the Oourt. — Starnbs, J. delivering thf , opinion. 

A very limited record presents the issue for our ponsicTera* 
•Ifkm in tiiis ease. 

'[I.3 So far as we are capable of judging from that record, 

the verdict was obtained against the plaintiff in error, in his 

•dbtracter of administrator. In that character, .he had. been 

pnade a party to the bLll| after tho death of his inteatatfi^ and 

* vot. t?n-37 ' ' • 



i 



% 



% 



■ 

\ ■ 



\ 



290 



SUPREME COURT OF GEORGIA, 



s 



Sharp Of.. The Sute. 



T— «- 



-r*- 



in place and stead of the latter. He found the case in Ckmrti 
and was not responsible, individaally, for the acts or conduet 
which made it necessary for it to appear there. In the di^ 
* charge of his duty, after he }iad been made the party defend- 
fuat, he pleaded ^2ene administravit. tinder these circnmstaa- 
ceS) without negativing this plea and^ding assets m his hands, 
the Jury, after decreeing title in the complainant to the ne- 
groes, claimed, find and decree ^^ that^defendant pay the costtf 
of said suit.".- 

Tne legal character of such a verdict is and can be nothing 
else, but a finding against Charles Clements in his representa- 
.tive character: for in such character he was made the defend- 
ant ; and as we have seen, the proceedings and the verdict 
diow no other liability. 

To have been in conformity with the verdict, the judgtoent 
for costs should have been entered up against the defendant 
in his representative character. But this was not done ; and 
we think that the Court, therefore, erred in refusing to sel 
that judgment aside, and in pot . directing the judgment for 
costs to be entered nunc pro tunc against the defendant in his 
representative character. 

jliat this may be done, we reverse ike judgment. 



9 



No. 54. — ^Mah^biv Shaiu?, plaintiff in error, t;«.*THB Stam 
. OF GfiQaaiA, defendant in error. 



1^1.] Sferj indictmeqt is sufficient, which States the oii^Qce in the tertm ^• 
longtage of the Penal Code, or so plainly that the nature of the oftbnce nutj 
be easily understood by the Jury. 

[2.] The case of one who, by pleading jiot guiHy to an indictiiMiyt iift M<wir 
Ing nqnors wlthont license, allege^ that lie retailed with liceilBe; i^n^ An 
^xx;^ti#R t</Uie genepa). rule, Ihat 4ie wh<^ ftUe^ec ti^ aSirunativeinast pto^ 









' ■ > ■ ■ > H I . 11 ■ — ^— — — M— ^M«^ii— .p^M^ 



Indictment, in Macon Superior Court. Tried before Judge 
FowEBSy September Term^ 1854. . 

* 

Ibtthew Sharp was put upon his trial, under an indictment 
ehargi&g him with the ofience of '^ retailing without license.'* 
Counsel fer defendant moved to ^a^A, on th^ ground that it 
should hare charged him with a ^^ misdemeanor/' The Court 
•iFer-ruIed the motion, and this is the first error assigned. 

The Solicitor General closed his case without proving that 

f 4rfendant had no license. The Court charged the Jury, that 

' it was not incumbent on the State to prove the fact that de* 

fendant had no license. The onus was on him to show that 

ke had license. This charge is the second error assigned. 

Blakdfoi^p k CRAWfoRD; Oliver & Clbmbi^, for plain- 
tiff in error. »* , 

Sol. Gen. DsGRAFFtNiiKiu and Whittlk, for defendant. 
in error. 

By the Court. — B«nnino, J. delivering the opinion. 

[1.] The indidmisnt staled the offence in the ternts and ha- 
j|Wge of the Code, or so plainly that the nature of the offence 
Ihight be easily understood by the Jury^ amd that is all 'tjuii 
^e lasr requires.' (T'i^ Code^ Cobb's i^.'SlS, 838.) . 

It is a general jn-inciple of law, that the * party that alleges 
'H^ affirmative of a proposition, especially if the propesitiott 
sipeerB something which must be peculiarly irithia his Ihie^ 
ii^e, n^vst prove llie proposition.. 

(2.] The case of one who, by pleading not guilty W a cbaift 

.ff ietailing without license, alleges that he retailea with lioeaM^ 

k«ot an exception to the general rule. {Apoiheearjks* (7iM# 

' fmg PS. MhUley, Ky. ^ Maod. 159. See 1 Siarki^im Mn. 

$$^ afideas0§ disd. 1 Grstn. ^JSv. Slec., 7% mcl ^m$€S dto^ 



• 



Sharp Pi, The State. * ^ 






BUTBsm coma of geob&cl' 

t ■ f ■ ' I I I ^— ^— 

Hodges M. Mjers, Su^datn k Co, ' 



It* . 



<^^ 



■ I '■ ■ 



In accordance widi this principle was Uie charge of the 
Court. That chaise was Hereford right. 
So there should be a general affirmance. 



mo. 55. — Jambs 0, Hodges^ plainti^ in* error, v«. Mybb% ' 

Sum AM & Co. defendants. 

l%'\ The Act of 1845, organizing the Sapreme Court, and which sequiredthe 
transcript of the^ record to be made oat and testified by tfa^^ Olerk of the 

'• Superior Court, within -ten da^iis after the fiUng the notice %f the cogalng ot 
' the bill of exceptionf in the office, is virtually re|)ealed by th^ Act of. 1850, 
allowing until the first day of the next term of the Ct>art to which the case.- 
is made returnable^ to send. up tji^e papers. 

•[2.] Sheriffs are not liable to be ruled, for monies collected by them out of . 
their county, 

* l^nle, Qroifi Macon . Superior . Court. Decision hj Jaig/^ 

Powers. 

The decision of the Court renders a statement of the facts ' * 

• * » 

^mnecessary. 

■ 

Lamar & Lochrane, for plaintiflf in error. 
' W. & H. C. Po^, for defendant, 
By tlie (hurt. — Lumpkin, J. delivering the opiiuen, 

' [1.]' A motion is made tp dismiss the writ of ^nrav m Hvli 
tase, because the transcript of the reooird was nc^ rximi'^^t^ 
msA tmnsmitted by the Clerk of iixt 3uQerior Oourt, within fin 
.Atys *from the time the original notic^.of the signisgof A%. 
MH-of exceptions, ^rith the en^i^s -thereon, waSiiU«4 ift oSast 

^ In ToTJipltina v8. Tigner^ at the late tern^ of ttSa Co&rM^ 
fitfhi^bus, we hel4, that the Act of. 1845^ oi|gM^aii(gL 4|# 



f 



MACON, Fl^RUAEY' TERM, 185^ , 290 

^■^F^^- ' ■ ! ■ ■ — T 

II I 1 ■ I . f 1.1 I .1 , 

Court) inm virtually repealed in this respect bj the Act of 
1850. • By the 3d section of this latter Act, it is provided, 
that ''when exceptions are filed in any case in the. Superior 
Court, iJie Clerk of the Superior Court shall make out a copjr 
.of the bill of exceptions and send it up to the Supreme Court,. 
OE or before the first day of the Court to which the writ of er- 
ror is returnable, with the transcript of the record," &c. ( Cobb*^ 
J>i9> 455.) 

K the transcript heed not be sent up to this Court lihtil the 
session to which the writ of error is returnable, it would be use^- 
/less as well as oppressirve, to require it to be made out 
within ten days, under the old law, instead of allowing the. 
Clerk until the ensuing term to perform the service. Suob, we* 
think, was the obvious iiitention pf the law. 

[2.] In Edward Kellogg ^. Co. V9. Green B. Mayo^ deci- 
ded at Columbus,' January Term last, (1855) p. 187, this Court 
held, that Sheriffs were not liable to be ruled for monies col- 
lected by them, out of the county for which they were Sheriffs. 
•In other words, that the residence of the officer and not the 
place where the process issued, fixed the jurisdiction. Any 
other pr^tice would involve manifold inconveniences, as well 
as absurdities. The ^Sheriff might be summoned to answer to 
rfles in two counties, not only remote fi^m each other, but al- 
f» fr^n his own, and the Court be sitting in all three at the 
.same time. I forbear to discuss a question which has been s^ 
nady settled, and I doubt not, upon sound principles. 









iTo. 66. — ^Benjamin W. Woods, executor, &c. plaintiff in error^ 
V9, Abkaham D. Woods et aL defendants in error. 

[1^ 'l^tli^ securities of an insolvent debtor, at any reasonable period of the 
*ftorwj»<fore the {ai^^is diaeharg^ aA4rfo time tor the beoess^ issueB l# 









^ 



l^iyPBBME COUBr 69 CWeSQXi. 



Woods, ex'r, Ao> V9. Woods et 4iL 



■* — ^ 



• . 



be formed and tried, do render the body of the debtor into GoQrt, tbej 
should be relieved from their liabilitj. 

i 

Casa, in Pike Superior Court. Deciaion by Judge Starkb, 
Oct;ober Term, 1854. 

-Abraham Woods being arrested under a ca sa. gave bond' 
for his appearance at Court, to take the benefit of the Honest 
Debtor's Act. Failing to appear when the case was called in 
its order, judgment was entered against him and his sureties 
on the bond. Afterwards, during the same term, his sureties « 
piroduced him in Court; and on motion, the Court vacated the 
former judgment, and allowed him to be discharged,, on takings 
flxe oath prescribed. 

This decision is assigned as errror./ 

Alford k Moore, lor plaintiff in etron 



H. & G. J. Green and Martik, for defendant in emu*. 
* • 

£y the (^i^.-^Starnes, J. delivering the opinion. 

[1.] We have disposed of the point presented by iJib reooitl^ 
ill a recent case decided at Columbus, in which we have e iyeoa; 
ed an opinion adverse to the. position of this plaintiff in ^enraK>. 

The principle upon which that decision rested, was stmplgr 
as follows : The requirement t)f the bond given by an insohreait 
debtor, when arrested on ca. sa. for his appearance, &c. i^ 
,that he will appear '•'at the next tejnn** 'of the Cx)urt, f^ Afim 
aiid there t^ stand to "and abide 'Such proceedings as mmj be 
had by the Court, in relation to 'his, her or dieir td^kig 
^e benefit" of the Honest Debtors' Act. And the Aq^-^o- 
vides, that ''in cas^ of bUure to 'appear, judgment shiiM kt 
entered up instanter upon said bond, agdinst the pripciffal te^ 
his securities," ftc. * 

It is thus perceived, that tjb6 exigency of the botid iB^lpat^ Ibe 
debtor sh^U appeiar at tie pm^ terpu-^n^t ike Arat daj^^ ^ 



MAOOK, Fl^RtTABT'TEBM, 18S5. , S§5 

Downs, Ae. vt. Yonge, Ac. 

term, or on any other psrtioiilar day thereof^ bnt at the tefm* 
This might be construed to mean the first day of the term^ or 
at any other point of time therein, when, in the due and regu- 
lar order df proceeding, the case was called. And this strict 

. * view would be correct, perhaps, if the interests of the debtor 
were alone at stake. Bnt the rights and interests of the secu- 
rities are here concerned; and qitoad them, these provisions 
'should receive that liberal construction which, whilst it favors 
substantial justice, allows to them the latest reasonable period 
within the term of the Court at which they may produce the- 
body of the debtor, and discharge themselves. 

In this point of view, we think, that jf the securities do thuii 

. fender the body of the debtor at some reasonable period of the 
term, before the Jury is. discharged, and in time for the neces- 
sary issues to be formed and tried, (if in order for trial) they . 
should be relieved from their liability. * Hence, we think tha 
proper practice would be for this docket to be taken up as the 
last business in order, before the discharge of the Juiy. And 
we know this to be the practice in some parts of our State. 

In this case, it appears that the debtor was produced by his 
securities in such reasonable time ; and, we Ibetefore affirm the 
judgment of the Court. i 






ti<^. 57.-^AMES Downs imd anotlier, for the use &e. plaintiffll 
m fnoXy V8. Gborob ToNt} b. Superintend^ t, &c. Westbbk . 
#1 AHiANTIC Rail RoaD| dj^fendant in errqr. 

[hj A deed for land, which has but one witness to it, is not void far aU por- 

poses, if it is void for any. 
[2.] It is not error to reject evidence that is irrelevant. * 

. . O&se/in Pulion Superior Court. Tried before Judge Ow 
WMriM, «^ber T4Nrm, ISM. 






. fl^ SUPKBBiCE- OOTJRT OP OBOEGIA. 

Downs, &c. vs. Yonge, &c. 

' This was.aa action brought by James Downs and anodier^ 
fbgainst Yonge, as Superintendent of the State Road, for dam-' 
ages to a lot of land No 112, 14th district, 6th section DeEalb^ 
now Fulton County, by the running of the rail road through 
the land. On the trial, the plaintiffs showed title in themselyes. * 
Defendant then proved statutory title in one M. C. Martin, 
and offered in evidence a deed from Martin to the right of way, 
dated in May, 1838. This deed was attested by only one wit- 
ness. Objection was made on that ground, which being over- 
mled by the Court, plaintiffs excepted. 

Plaintiff's then offered in evidence a fi. fa. , against Martin, 
fipon which there was a levy on and a sale of this lot of land, 
prior to May 1838 ; but plaintiffs did not claim under this salel . 
The Court r^ected the evidence, and plaintifi excepted. 

Upon these exceptions, error is assigned. 

Rutherford & Ezzard, fbr plaintiff in error. 

OvfiRBY & Blbcki;et, for defbndMit in error. 

• * 

B]f the Court — ^Bbnniko^- J. delivering the opinion.* • 

■ 
■ 

. Neither t^^ Gonlmon Law nor t)ie Statute of Fsaiids i^qinres 
that a deed, .to be valid, mtist be executed in the {^resenee* of . * 

. witnesses. {Com. Dig. Fait, {B. 4 a.) 2 Black. Com, S&J.) 
The Act of this State, of 1785, deolfures,* that idl diseds, hfr 
iN^ of bargain and sale, ececnted nnderihand and seal, oa 9k . 
valuable consideration paid, in the pi'esence ofUco cr m<m$ 
witnessesy that are proved 'or acknowledged, and .Aat i^ 

. registered within twelve months fro|pi their date, shaU'bo^jMM^. 
and vcdid. But ihe Act does not declare Hiat deeds (Irijijfciit 
in any of these respects, shall be void. {CohVn Big. 16iL) 
The Act of 1760 contains a declaration with respects flfyA 

. of land, similat tQ that contained in this Act of 1795. • Ae ' 
WQi'ds of the Act are. these: ^^all conveyanoes of lands and 
tanements, shall be made by deed of bai;gajn and j^a^^^aoA V ^ . 
rolled or registered," /'signed an4.8^e4V ^^ befioiGl 






MACON, FfiBB0ABT TERM, 185& ' 2S^ 



<^^^m 



Downs, kc. M. Tonge, kc. 



vitiieflBeBy irlie ahfltll Kkewise sign,"' Ac. Again — ^AU con- 
,inj9aice8 of lands and tenements, made and executed, anjl 
«mrdled and legistered, according to the intent and meaning 
of this Act, shall and are hereby declared valid in law," fte* 
{IdA$l.) Attdyet,tlieAictofl768 treats deeds, madeafter the 
passage of the Act of 1760, and not recorded nithin the time . 
I»'escribed by that Act^ as not void. On the contrary, it pro^ 
^vides a tim^ within which they may still be recorded ; and 
Iben, after providing a time within which deeds made after its 
passage may be recorded, it goes oh to say, that deeds thns 
Teeorded shall be held as the firH deed, and shi^ be held valid^ 
' any former oonv^ance not recorded as aforesaid, to the con- 
trary notwi^Unding.* {Ibid. 162.) 

fUs Act of 1768, therefore, may be considered as expresr 
ike of the Legislative interpretation of the words aforesaid, in 
the Act of 1T60. Those words were, as we have seen, " all 
conveyances'' ^^tkallhe made by deed of bargain and sale*' enr 
rolkd. ** All conveyances made*' &c. ** enrolled," &c. ^^ao* 
cording td the intent" of the Act, &c. shall and are hereby de- 
clared va/t3 in law, &c.; that interpretation being, that the* 
words, though requiring all conveyances to be recorded, dift 
ttot render void soefa as might not be recorded, but only post*. 
paired them to sach as might be recorded. And the corredh- 
«UB of this interpretation is favored- by what is to be found in 
lltf oldest Act of all, on this subject, of deeds — that of 175,5« * 
.Sfeai Act' contains a requisition that all deeds shall be regis- 
tered^ within sixty days from their date ; and also a declaration, 
Ikai aH such as'shaH be so registered, shall be deemed '^to be 
ptm*' to aH such as shall not be so registered. The lattier are 
t6 lose their priority. That is all. They arC not to be ren^ 
dMdvoid. (Jd. 15d:) 

The provisions of this Act. of 1755, an<| also those of th# 
Act of 1768, making this the only e&ct of the failure tp r^ 
tOiA a deed within prescribed time are g^iieral-'-eztending aa 
m^ to deeds made .brfore, as to deeds made after their paa- 

• • > 



• 



^ « 



298 BUPEEME COURT OF GEORGIA. 



Downs, &c. M. Tonge, Ac. 



It ifi true, that these two Acts concern only one of the things 
which the Act of 1785 requires, ^ to deeds — ^at of registry.. 
They do not expressly say what is to be the effect of a failure 
to execute the deed in the presence of two witnesses ; but reg- 
istry doubtless was deemed by the Ac^s, at least as important 

• as the presence of two witnesses. At anyrate^ when these 
Acts say that the effect of the not recording a deed within pre* 
scribed time shall be merely to postpone the deed to deeds re-, 
corded within prescribed time, they say, in substance, tihat the* 
effect of the non-attestation of a deed by as mafty as two m^ 
Hesses, shall l)e merely to postpone it to such deeds, as, haring 
the attestation of two witnesses, are so recorded, fot the effect' 
of the non attestation of a. deed by as many as two witnesses, 
is to prevent the deed from ever being recorded. 

*Now, if the words of the "Act of 1760 were used in flie seififl 
in which, according to this Legislative interpretation they wete 
used, it is fair to presume that the same words, or the wbrds of 
the same import of the subsequent Act— that of^ 1785— weie 
used in the same sense. 

And this presumption is strengthened by the acdon ^f 1n» 
•merous Legislatures, subsequent to that which passed tlie A<St 
of 1785. This action treats deeds not recorded wi&hi ilie 
<ime prescribed by .that Act, as not void, but in some cib^^ si| 
entitled to the indulgence of farther time for gettLdgthe&isilvto 

* recorded, and in no case as subject to a worse jPkte than thil 
of a postponement to deeds recorded within the preserflvd*. 
time. . * ' • . ' ■ 

The Act of 1788 declared, that **no deed,r. Ac. "shrfljift 
any wls6, be affecjied by reason (Jf the same not being rej^ 
tered," &c. " agreeably to the said Act,'* (of 1785.) {Tfof. 
Dig. 372.) . In 1790, this Act of 178ffwas revived and nm* 
tteued in force untirFebruary, 179&. {Id: 425.) 
. The Act of 1812 seems to assume, that even one witness W 
a#deed, if he iS a Justice of the Peace or a Clerk of t^e Sd{fe- 
ijiot Couirt, is su&icient to make the Ai4A ^admissible t6* recotNL 
A deed so attested and recorded, the A6t makes ^admissibWjMi 
evidence. The Act'seanls tp havcno suspicion thar^mid^i^ 



MACON, FEBRUARY TBRM, 18S§. .299 

• — * : ■ ' ■ 

^ Dovms, kc. M. Yonge^ he, 

, '. ^ 

in sock ease, any thing more for the Legislature to do-— that a 
deed in such a case needs a declaratioiiy that it does not loee 
its priority, much less one that it is not Toid. {Cobb's Dig.' 
167.) ... 

So the Act of 1826 makes deeds, Improperly recorded, some 
for one thing some for another, admissible in evidepce. The 
Act also gives leave for the registry within twelve months of > 
. all deeds properly executed and proved, but not recorded. (Id. 
170.) 

Of the same character is the General Act of 1827. (J4L 
172, 173.) 

At length, in 1837, the Legislature, after giving an exten^ « 
•sion of the time for recording, to such deeds as needid it, laid 
down for future deeds three general rules — 1. Xhat deeds 
.^nade after the passage of the Act, might be recorded at ai^ 
lame. 2. That if, however, any deed should not be recorded 
within twelve months from its date, it should be postponed to 
a younger deed, which should be recorded within twelve months 
from that deed's date, unless that younger deed had notice of 
the otjier. 8. And that if of two or more deeds all should be 
well recorded, the oldest deed should have ^e preference.' 
XGobb'aJHff. 115.) 

It is useless to pursue the Legislation of the State furtiier, 
to find out what the Legislature considered to be the effect, wi- 
der the Act of 1785, of the failure to record a deed. There is 
more of it. {See Cobb' % Dig. 176, 7, '8, '9, 180, 181.) Suffice / 
it to say, that the further legislation is all in harmony with 
th^t which has been already noticed. And that already no- 
ticed shows thp Legislature's understanding of the Act of 1785 
to have always been this : the failure to recerd a deed within 
pnescribed time, postpones the deed to a younger deed, recorded 
, within preseribed time, but does not render it void. ' 

This understanding of the Act entertained by the Legisla- 
ture, is that, too, which has ever been the understanding of it, 
hcjd by the Courts, as for as the information of this Oourt goes. 
FjnaUy) the 'rules of construing Statutes, forbid diat the 
' Common L^w^ or. a Statute,* sh^ be considered as repealed by 



» 



300. . SUPREME COURT OF GEORGIA; 

Lewis V9, Allen and Leak. • ' 

lk,Statate by implication, unless the implication is yery strong 
— as strong as that which is made by negaidve wcurds, or affirm- 
*atiye words carrying in them, unmistakably, the sense of ne^ 
gation. (1 Black. Com, 89.) 

The implication in the Act of 1785, does not come from neg- 
ative w(»rds. Xhe words of the Act are affinhative, not nega- 
Hive. They are, in substance, thai all deeds witnessed by two 
or more persons and recorded, shall be good and valid. They 
lure not that all deeds- not so witnessed and recorde^l, shall not, 
be good and valid. 

[1.] The conclusion, therefore, to which this Court comes, 
is, that this deed, though witnessed by but a iSingle person, was 
not a void deed. And this Court is therefore of opinion, tha^ 
the deed- was properly a4niitted in evidence — at least for the 
p^urpose for which it was admitted-^which ifas merely to show- 
that the State was not a ^r^o^ser in o'unning the Rail Road 
.over the lot of land. ' • * ■ 

My own opinion is, that the deed is a good deed, subject) 
however, to the preferences which other and younger deeds 
may get over it, by beii)g' well recorded — ^it b^ing a deed which 
cannot;, by reason of having only "One witness to it, be well tp- 
corded. 

{^•3 The fi. fa.^ was clearly not admissible as evidence. . The 
plaintiffs derived no title under the fi. fa. They, ihei^fM^ had 
no right to use the fi. fa. The fi. fa* was simply irrelevant « 




No. 58.— (JuRTis Lewis, plaintiff in error, m. Robert AlUII ■ 
and Wm. V. Leak, defl^ndants in error. 



[^.] In a suit by a person standing in the shoes of a partner, against tiie* co- 
partner, the axlmissions of the partner *&ro not evidence in favor of tliMilaitt*> 



• • 



l^CON, P9BRUABY TBBH, ISto. 'Wl 



Lewis M. Alien and lieak. 



1 1 *1 > ' 



In fiquity, in Pike Superior Court. Tried before Judge 
Stabkb, October Term^ 1854. 

_* 

Cnrtis Lewis filed a bill against Leak and Allen, as partners, 
to reach the partnership assets of the firm. Defendants filed 
separate answers. On the trial, the Judge charged the Jury 
— that the answer of Leak was not evidence against Allen, to 
inorease in AIlen*s hands the amount of assets claimed to be 
the effects of Leak and Allen. 

This decision is assigned as error. 

McCune;. Alford & MoteE; A. R. M'oore, for plaintiff 
in error. 

Floyix k Borders ; Poe ; Green, for defendant in error^ 
By the Court — Benning, J. a(»livering the opinion. 

t 

Levis says that he owes AUeix ; that Leak owes him ; tb*^ 
Leak is insolvent; that Allen owes the partners, Leak and Al- 
len, so much, that on a settlement of the partnership, AUea * 
would be found to owe Leak a large balance; and Lewis prays 
that this balance may be apjdied to the payment of what Leak 
oires him, so that he may with it pay what he owes Allen. 

Hiis is the bill. 

« 

Leak, in his answer, admits this, in substance, to be true. 
But AUen, in his answer, doea nof. 

Lewis iqsistS'that this admission of Leak binds Allen., • 

The Court below held, that die admission did not bind Al- 
len. ^ 

The question is, was that decision right? 

.Lewis, of himself, has no right, of any sort, sigainst AUea. 
Whatever right he has against Allen, is such as he has by vir- 
tue of his ci^ht against Leak, and Leak's right against Allen. 
Lewis, in' lignogiDg the bill, has to st^nd in the ^hoes t)f LeiA. « 



» • 



80S S^PSraO C0J3RT OF <9lS0fi6IA. 

Lewis w. AU«n and Leak. 

The question/ then, whether this 'admission of- Lei^*a bia^ 
Allen, is the same as it would be, if Leak stood in his own 
shoes — is the same as it would be if the suit was by Leak 
against Allen. 

Suppose, then, the suit to have been by Leak against AUen^ ' 
instead of being, as it is, by Lewis against Allen, could an ad- 
^mission, by Leak, that Allen was ind/sbted to him. Leak, be 
received as evidence against Allen? most certainly not. Ad^ 
mission is not th^ word for such a thing — claim — advarse 
claim, is the word. Leak claims that Allen owes him a debt 
— ^not admits that Allen owes him one. This is the appropri- 
ate language. Is such a claim to prove itself, because made 
by one partner on ^nothef ? • 

It is certainly true, as a general rule, that the "admisaion of 
one partner binds the other.. But thia is so only ia, cases in 
which the admission is against the interest of the partner ma- 
king it, as well as against that of the other partner. In no 
case does the admission, so to speak, of one partner, which tf 
i^i^vorable to himself and adverse to his co-partner, bind the cb- 
partner. To make such an adpdssion bind tjie* co-partner^ 
' would "be to introduce a rule that could not work ^^.both waysi** 
witfaoitt its effects cancelHng each other. If, ina case between 
partners themselves, the admission of one binds liie other, of 
course the adnussion of the other must bind him. In such » 
ease, the result would be a war of admissions between d^e part^ 
ners ; and the last admission would be the victor. 
. [1.] And what are the admissions in this case ? Leak ad^ 
mits a state of things that makes Allen his, Leak% debtor — 
* not a state of things that m^J^ea Leak and Allen Lewis's debt- 
or. This admission operates altogethei; in favor of Leak — al- 
together fl^inst Allen ; and it is made in a cas^ which is tie 
same as if it were between Leak and Allen. Such an admis- 
sion cannot bind Allen. ^ And in so deciding, we think tho 
Oourt bel9w decided right. 

* With this opinion there is nothing inconsistent, ip. Clayton vs. 
Thompson ^ Reeves j (13 (?a. B. 206.) 

Iml that ease. Clay t(»i did not elnm throat^ "^^^^ve^ the 



> . 



MACON, FEBRUARY TERM, 1855. 



808- 



■ ■ ■ 



Wood H al. V9. McOuire'f Cliildrofi. 



partner of Thompson. He did not stand in the shoes of 
* Beeves, as dgainst Thompson and R^ves. He claimed hy an 
mdependent title of his own, and claimed gainst the partner- 
'ship of Thompson and Reeves. In such a case, any admission 
of the claim by Reisves, irtmld be an admission against the in-* 
terest of Reeves; and one, therefore, which vronld not only 
bind him, but bind his co-partner, Thompson. 

So the judgment of the Court below ought to be affirmed. 



> « 



f 

No. 69. — ^Willis Wood and another, plaintiffs in 'error, vs. 

MiLLT McGuxre's Children, defendants* 



• • 



,[k] A partj, when put upon the stand as a witness^ under the Act of Fel^** * 
ruaiy, 1854, is liable to be cross-examined, as other witnesses now by law 



[1.) The regular mode of conducting the examination of a witness, is first, to 
be inlerrogated bj the part^ introducisg him; then to be cross-examined 
by the other side ; and again, to allow the original party the privilege of 
putting further questions, explanatory of the ^rst, or by way of rebuttal of 
the cross-examination. If new matter is elicited, opportunity should be 
^tended to the opposite party, of inquiring further, as to that. 

£3.] The admissions of a party against hit interest, as te property inliis po»» 

t ^eaaUm, or to which he claims title, are con^>etent evidence ; and they ace 

good a£ to those who claim under the declarant, whether he were in actual 

possession or held the paramount title,' at the time they were made, or not. 

{Ji.] A pQ^on who takes a conveyance to land and goes into possession^ re- 
cognizing another as the true owner, holds in subordination to the tenant 
in fee. 

{6b] If one takes a conveyance to land, tona fidt^ believing that he acquires 
the fee, notice of an outstanding titl^ cannot affect his rights. 

[e.] Where both plaintiff and defendiuit in ejectment, deduce title from a com<> 
t mon srouce, it is not necessary for either to go beyond that. ' 

[V.] Where several defendants in ejectment claim separate parcels of land, 

onder distinct titlbes, and they do not sustain the relationship of landlord 

'emd tenant^ encb other, a joint action cannot be maintaiaed againet them; 



804 '-STrPREME COURT OP.GEORGIA. 

Wood €t al. ff$. llcGaire'8 Children. • 

\ ;__; , . 

nor can a joi^t or seVeral recovery be bad, under the Itan of tfais^talfe, d* 
ther for the premiaes or rMtnt profits. 

{8.] It is error in the Court, at the dose of its diarge to the Jury, te reftiie 
to listen to a written request, at the instance of Counsel, to further chargi 
the Jury f reffardlessof the €har€Kt^ of the request. 

Ejectment, in Bibb Superior CooFt. Tried before Judge 
Hardeman, November Term, 1854. 

* The following is the bill of exceptions : 

Plaintiff introduced as evidence the will of Thomas Rainey^ 
dated 17th September, 1828,. and admitted to pr9bate:6th Jiui-' 
i^arj, 1829, and regularly execu);ed, so as to pass real estate. 
* Item 7th in said wilt, is as follows : ^'I.will aqd bj^is^ad^ to • 
my grand-children, the children of Milly MoGmre, their, beics 
and assignees, forever, lot or parcel ,of land containing ^0^ 
4K>re8, known by lot No* 68, in the 4th district q{ Houston 
County. This is the Only clause in s^d will, affiBOting tlie 
«matter in controversy. 

Plaintiff then iiM;roduced Aimer Rainey, who tesft^ed : Kmjf 
the premises in dispute ; worth, for rent, $100^ to f 126 per 
floinum ; worth for four years last pa&t, $1(M) per ^nnvqii, I 
would i^ot take it at any prices without insurance, beoiliise itia li- 
able to oyerflpw. It has not overflowed so as to lose .a ^o^ kt* 
four years. Knew Absalom B.* BfcGuire in 183^. or 1832, jani 
from theii until he left the country. I saw him in 1881' i« 
1832, in a shanty, and if he. showed the right libes to me^ it 
was in the premises in -dispute. The shanty was tempoiaQi; 
I have, seen a better where parties stopped only for the iMgUt 

There was no clearing — no tknber cut ; a few brp$h 4fKe 
aut that looked like children's work ; I was there but the 'Oiift 
time; went over there to offer tohelpMcOuire build; I never saw • 
McOuire on' the land, after that time; he may have left th^ 
place next morning, so far as witness' Jsnows. ' . ' 

During this int^view Absalom B. McGuire did not sayiuay 
tiling about the title, or how he clatmed the hibd/or. thai J^ 



• » 









• 



^ 



» ■ « I, 



MACON, FEBRUARY TERM, 1855. .305 

■ I I ' — ■ 

Wood ef al. i'#. McGuire's Children. • 



Monged to his children under their grand-father's will — said 
itothing about it. When he, McGuire, left, he moved up on . 
.tihe Colttmbus road, and never occupied the land afterwards* 
The laQd is mostly in the swamp, only two or three acres out 
of the awamp— some of it marshy, and all but the two or three 
acres liable to freshets. I saw Calhoun's hands clearing the 
Imd ; never saw McGuire or his hands clearing the land. 

Copy of subpoena duces tecum served upon Calhoun, to pro^ 
dnee papers^ was then introduced, and is as follows : 

To WiUiam Calhouny Greeting : We command and form- 
^11^ Bnjoin you, that laying all other matters aside, and not- 
wltfastanding any excuse, you be at our Superior Court to be 
held at Macon, in the County oT Bibb, on the second Monday 
m Norember next ; and also, that you bring with you and pro- 
duce, at the time and place aforesaid, the original grant of the 
Stote-of G^rgia to John S. Roberts, to lot of land No. 68, in 
fle4lfe distarict'of originally Houston, now Bibb County, dated 
yebmary 9th, 1822 ; also^ a deed from said Roberts to Sam- 
vA farmer to said lot of land, of same date; also, any deed * 
whMi said Fanner may have madd to said lot, to Thomas Bai- 
B^F f}T any other person, and all deeds he may have in bis poa- 
iMnion or under hia' control, showing that Thomas Bainey held 
iiUe to said land, in the years 1828 and 1829, then and there 
to teattfy and show all and singular these things or the said 
gm«t and deeds doth import, of and concerning t^ certain re- 
late now in our said Court depending, wherein Willis McR. 
Kaasall et at respondents, vs. Willis Wood and William John- 
. i^&yi appellants. And this you are not to omit, under the pe^ 
paiiy of three hundred dollars. 

Witness, the Qonorible Abnbr P. Powers^ Judge of said 
Court/ this 26th day of September, 1824. 

HENRY G. BOSS, CTerk. 

. Oalboun sworn: Had such deeds as described in the subpoe- 
iri^ but -sold the knd to Gray and turned over the papers; 



• 



t 



• • 






• I 






• 







306 . SUPREME COURT OF GEORGIA. .. '. 

. .• . ' • 

* • ' ■ ' ' Wood ti at. V*. McGuire's Children. 

thinks thej arc the papers mentioned in the subpoena ; bad a 
* lull chain down to Rainey^ so far a^ I know. Witness also 
had the grant. And afterwards, Gray handed me a bundle of 
papers to be delivered to Stubbs & Hill, saying that he had a 
suit about the land. 

Cro8s-e;c^mined : Oan't say that I had a deed among those 
pfbper& to Rainey ; can'^t say that I ever heard of a deed from • 
any one to said Rainey.. When I sold the land to Gray I de-j 
livered to him all thp papers that I received from McGuire, t?J- 
.gether with a deed made by Lovick N. McGttire and Abraham 
B. McGuire, to me, for the land in dispute, all of which I de- 
livered to Benjamin H. Gray, when I sold him the land ; and 
after this suit began, I received a bundle of ptipers from Gray 
to deliver to Stubbs & Hill, which I delivered Jto them without 
even opening the package or knowing what paporrs it contained^ 
except that they were papers pertaining to the land now in 
suit. Had none of these papers when I was served with Uie 
subpoena, nor were they in my power, custody or control, nor 
have I now. " . 

Plaintiff then read the deed from Lovick N. McGuire and 
Absolom B. McGuire to Calhoun, as follows : 

OEORGfA — ^BiBB County: 

This indenture, made the seventh day of December, in the 
year of our Lord, one thousand eight hundred and thirty-seven^ 
between William H. Calhoun of the one part, ' and Frant ff, 
McGuii:iB and Absalom H. McGuire, ^ as parent, of the oth'i^ 
part, all of the State and County aforesaid, witnesseth, iBat 
'the said Frank N. McGuire and Absalom B. MoGuire, fbr'an^ '• 
in consideration of the sum of seven hundred dollar0,;'t6 tfldl^ 
in hands paid, at and before the sealing and delivery of tCeai 
presents, the receipt whereof is hereby acknowledged^ ttMk 
bargained, granted and sold, alienated, conveyed and confitift- 
ed, and by these presents, do grant, bargi^in and s^ll, 4i]tea,. 
convey ami confirm unto the said William H, Calhoun, llid 
heirs and assigns, all th^t tract or parcel of linJ lying aUtSW J 
ittg in the fourth district of Houston^ now B3}b Xlofm^^ l^wH 



* 



MACON, FBBRUAllY TERM, l6S». m 



■#*■ 



Wood et al, vt, McOuire'a Children. 



T 



as lot No. 68, and bounded by lots Nos. 47^ 67, 85 and 6d, 
which, said lot or tra,ct of land was drawn by John S. Roberta, 
in a land lottery in this State, containing 202^ acres, be they 
more or less, to ha^ne and to hold the said lot or tract of land,, 
with all and singular the rights, members and appurtenances 
{hereof, whatsoever^ to the said lot or tract of land, being, be- 
longing or in ^y way appertainmg, with the remainder br re* 
mainders, reversion or reversions, rents^ issues and profits tiiereof^ 
to the only proper use and benefit and behalf of him, the sail! 
William ^. Calhoun, his heirs, executors, administratora 
and assigns, in fee simple. And the said Frank N. McGuire 
and Absalom B. MeGuire, as parent, their heirs, executors and 
administrators, the said bargained lot or tract of land, unto the 
said William H. Qalboun, his heirs, executors, administratora- 
aiid assigns, against ther said Frank Nl McGuire and Absalom 
B. McGuire, their heirs, executors and administrators, and aU 
•ai^ every other person or persons, shall and will warrant and 
forever defend, by virtue of these presents. , 

In witness whereof, we have hereunto set our hands and af-. 
Xxed our seals, the day and year above written. Signed, sealed 
knd delivered in preseoce of us. 

his 
LOVICK N. X McGUIBE, [l.s.J . 
mark. 
ABSALOM B. McGUIRE, Parent, [hs.Ji 
(Teat, 

T. M. TOPLBY, ^ 

Axvu S. Alfoed. 



Plaintiff then read, under like notice to defend^mt, a deed 
finm said Wm. H. Calhoun for the premieea ia dispute, to Wak 
tft. Gray, dated 14th Dec. 1847, duly exeooted. Con«d«ran 
tiea 91^00 — dear wki'rantee deed. 

Flai&^ff then read, under like notice, to defendaiil% a bmd 
ilr iiti^Bf exeoiited by Bet^jaaiiii H. Qra^. to Wm, Jn^amtkf 
one of the detodaales » hoi^ eoadtetoaed to amke wamwtei 



808 JBCPREME COURT OF GEORGIA. 

«-<fc J, I. ■ . , 1 .... i T . T 



Wood et aL t». McGnire's OhildreiL 



. V 



« - 



^titles to said land in dispute upon tbe pajmaent of f 1200— «-said 
%ond dated I7th day of October, 1850. 

Plaintiff then read an agreement of Coupsel as evidencefta 
4ie Jury, whidi- agreement is as fpUows : . 

We agree, for tbe purpose of 4;bid trial, to receiye ase^ence' 
ibe testimony of Absalom Jordta and W/u. Bortelet^ on nr mo» 
tion for a new trial.- 

' Also, that Calboun purobased tbe land in 18d?, iHen iiren^ 

• into possession, and Oitlhoun and tbose claiming under' imv 

have l^ld possession, up to tbis time, and are How in posseasion, 

. und that Absalom Jordalx Tfould swear, if present, tbat sai4 

lands were nort wortb more tban $700, ^ amount pail Jof 

Calboun, s(t tbe time' of the purchase* . 

LANIER & ANDERSON, Plainliflb' Atty s. 
STUBBS & HILL, Defendants' Atty's. 
/ Wm. Jdiinson sworn, one of the defendants withdirawa fay 
plaintiff: Willifl Wood, my co-defendant, claims under ms^ T 
^ttcchased from Benj. H. Grayand paidand am to pay fl^Ofor. 
the land. The sum expressed in the deed is the true am )mit 
1 bought in good &ith and paid a fair price. Isupposed I was 
INyinga good, title and did not know of any outstanding title.' 
. Aray was in possession at tbe time, and I Supposed I was get- 
Img an unincumbered title — large portion of the* fenc^ was * 
Vmit up — ^putting the plantation in repaih was wurth two 
f&^* rei^. There were twenty to twenty-five acres deureA^ 
w^rdi for rent $2 to %Z per acre. The baUuce of .the Jfti4 Tf 
ileared — ^worth Ihe rent to clear it — not mone -tlNui two and a 
iialf aef es o«t of the swaqip. Willis Wood l^eld and o^eapted 
Miovt fiye acres of the land that 3ias ^sleai^ed. * Wood holds 
Italf the kit ajut I the other half. I sold Wood the Weetl^ 
aitd I oceupy tbe East half. •, 

SelMiltal: I have heard a rumor in ,the dettV^meii^ 
jbeMTs 8t»ee, that the Mc<Siur6s had a eloan <m the bt^' ml 
poied, b«t had not certain knowledge of ,ik • • * 

Qifondaatl' OooamI then offered to aA, M»d wm pa^ ^ 
Oonrt tt> be penttitM sorrabut ^ aa ta ii xiM^m H^mk ll m» • 
tl^t h# #m ba«rd siiih rtittaa^ «iiA icift^ * A 



t 
t 



. MACON, FEBRUARY TERM, 1855. . 809 



Wood ei al vs. McGaire's Children. 



ness that the plaintiff^ knew of the possession hy Gray, and 
had not asserted any title by suit, and had no title upon record 
smd to^erplain what he. meant by rumor. The Court refused 
Counsel to afik any question to explain the testimony' drawn 
l>utby plaintiffs- on rebuttal, and ruled and determined that 
'the examination of l^e witnesses was closed. To which ruling 
defendants then and there, by their Counsel, excepted. 

Abner Rainey, sworn : Plaintifis then offered to prove by the 

irttness that afSter McGtiire had left the premises and in no way 

. exercising acts of ownership over the land, that he, Absalom 

S. McGuire, admitted that he held the land in dispute for his 

ehildren. 

Defendants objected to the saymgs of McGmre, because he 

was not io possession, and it did not appear that he, Absalom 

B. McGuire; had either title or possession at the time such ad^ 

mission was made (if any was made). The Court over-ruled 

. the objection and Rainey said : 

McGuire admitted to witness, frequently, between the year0 
18S1 and 1837, that the land in dispute belonged to his chil- 
iateUj under the will of their grand-father. McGuire was not . 
m |)088eBsion at t^e time. To which ruling and decision, de- 
. fendants then and there excepted. The sayings of McGuire 
Were not given in evidence until all the above and foregoing 
. evidence was ^ven in to the Court and Jury, 

Peter M. Curry, sworn : Absalom B. McGuire moved to the 
kind In 1831 or 1832, and remained on it for two or three . 
months in a small cabin. 

Testimony of Mrs. Milly McGuire :• To Intg. 1st. — I know 
liie plaintiffis but do not know the defendants. \ 

* To Intg. 2d. I am the mother of the wives of McDonald 
ti&d Russell, and also of the Other plaintifllb. Absalom B. Mc- 
* Chiire, my husband, was the father of the same. Their grand- 
fitther on mother's side was named Thomas Rainey. ' They are 
Ae children of Milly McGuire, and are as follows : Frank 'K. 
MeGiure, aged about thirty-eight; Mary Elizabeth McGuire, 
aged about ^irty-two years old; Ona F. McGuire, about* 
f#iii(9^«iiii|to ji99tm,fiH ; hmimtk 1L MvGatre, about tw0nty-8ix 



I • 



y 



SIO 



SUPREME COURT OF.&EOBOIAi. 



Wood ti ah vt. McGuire's GbildreD. 



years old ; Daniel J. McGuire, about twenty-four years old^ 
Jacob R. McGuire, about twenty-two years old ; Bebecoa A. 
W. Russell^ about nineteen, yeaxs old ; Sarah Ann McGuire^. 
about iburteen years old ; Judidi H. McGuire, about eleven 
years old, all of whom are yet living. None dead, leaving chiU 
dren. Ona F, McQuire wAs married to George M. McDonsddr 
tke fifteenth d^y of July, Eighjteen Hundred and JForty-five^ 
and Rebecca A. W. McGuire was married to Willis M, K. Rus- 
sel the ninth June, 1850. 

• To Intg^ 3d : That Thomas Rainey was the ghind-father of 
said children, and he lived in the year 1827 or 1828 about ona 
ihile from Lawrenceville, in Gwinnett County, Georgiiu Hd 
ia not now living. He died about the sixle^dth Noveml>6r, 
1828, at his residence, one mile from Lawrenceville, in Gwi^ 
jietC County, Georgia. Miliy McGuire is tha daughter of 
Thomas Rainey. Milly McGuire ie my name ; I am Tho^ 
mas Rainey'« daughter, to the best of my knowledge. 

To tbe 4th : In Eighteen Hundred and Twenl^-seven and 
Twenty-eight, I lived in the County of Wakon, Georgia. I 
have resided in Bibb County, Georgia, since that time vofH I 
moved to this, Thomas County. 

To, tlie 5th : • I did live in Bibb County, Georgia — mai$^ 
tibere some time in the year 1829, and lived about, ten npl^ 
from Macon in a Westerly direction, on the road leading fyt^ 
Macon to Montpelier Springs. The land I resided ft^ ygMB 
joined by a Mr. Asby and Mr. McManua ; Absalpn^ B. ]Wq* 
Guire was^my husband. He is not now living. He wsfi, ^ 
father of the plaintift. Some thne in the year.Eight^ea^fibA* 
dred and Twentysix, my husband' was possessed of the c<|&t«|| 
of some Und in Bibb County, Georgia, in right of p)au^ti% aa • 
his children, and held the title in right of said children f^»^ 
twelve yeaiB. He had not, before that time, the control of aad 
laftd for imy other person. I cannot tell the numbqr of- ^ 
lot, nor the jdistrict in which it lay; it was in Bibb G^ 
* Ga. ; sud land lies immediatdy on the Tobesoff k^e Or^^ 
was joined by Sampson Barefield's land, Wm. Booties \f(^ 
ThoBftaa Howar4*s land. .. -r ^ 



•r 



J • 



» MACON, FEBRUARY TEEM, 1856. . 811 

' • I 1 

Wood et al. v. HcGuire's Children. , 

■ «.i.ii I .. ■■ III, 

To the 6th. My husband was named Absalom B. McGuire^* 
and he sold said land to one William C. Calhoun. I cannot 
vtate the month, but to the best of my recollection, he sold it 
some time in the year 1839. I was not present when the sale 
was made, but I afterwards heard Mr* Oalhoun say to Mr. 
McGruire, that he would come and get title when the childrei^ 
became of age. 

To the 7th. Absalom B. McGuire only lived on said lan^ 
^bout two months, but held titles, as before stated, about twelve 
years. lie n^ver held said land as his own right. 

The 7th. I know nothing more that will benefit the plaiA- 
tiff, but that Mr. McManus told Mr. Calhoun that the title to 
. said land was in his children, and Mr. Calhoun replied that he 
•would risk it. 

her 
MILLY X McGUIRE. 
mark, 

* 

CHARGE OF THE COURT : 

t 
t 

After argument of Counsel, the Court was requested, by de- 
fendants, in writing, to charge the Jury : 

If you believe from the evidence, that Calhoun and those 
under him in the actual possession of the land, cultivating and 
exercising acts of ownership over it as their own, under deed to 
the land, were in possession more than seven years, and there . 
was no disability on the plaintiffs, as to .minority or other dis- 
ability, then the plaintiffs were not entitled to recover. 
' . And you will look to the evidence, and see from that, whether 
the plaintiffs werfe of full age for more than three years before 
the commencement of this suitl And if all the plaintiffs had 
attained twenty-one years, for more than three years before 
this suit brought, except Daniel J. McGuire, and you will in- 
qufre from the evidence, whether he was in esse at the tnne of 
his grand-father's death ; that is, whether he was bom at the 
time of his grand-father's death or born within the usual period 
of gestation thereafter; and that if not in esse at that time, he. 



.• 



• , 



M^ SrUPBEBIB 00OB3* OF GBSIiafiL 

. *-% : : ' * ' ' '■ ■ 

• . ' • • Wood et al, vt, McGuire^s Ohildren. • 

__* S * . ; !■ * 

, 0atii^r J*. MeGuir^i is not entitled to recover ; -end if jm. b^ 
Keye that defendants and those under whom they claim^ liave 
been in such adverse po^ession, then the defendants are pron 
teoted hj the Siat\ite of Limitations, and you will find, fi)r de<* 
fendants. . Whieh said request, the Court* refused to ffv^ (ex* 
4ept 80 much thereof a^ relates to- Daniel J. McGuire wbidi 
was given as requested by defendants.) . . * •' 
' To the refusal to charge- the balscnce of said charge, the 
. Counsel for the defendant then and- there excepted. 

The Counsel for defendants requested fhe Court t6 <^harge: 
Where a purchaser of lands, without notice of .any fraud or, 
Refect of. title, purchases from on&«tffected with uotice, the pur- 
chaser will be protected. ^ Which the> Court refused, '' aOegiag ^ 
.« (hat it was not applicableto the case under the -evidence/' 
To whieh said refusal to charge^ the Coansel for defendant 
thcgot and there excepted. 

^ Defendants' Counsel then requested thp Court to charge'the 
• Jilry — ^If it is not in proof before you, .that Benjamin H. Gray , 
* had notice of some fraud or defect, in the title, then you mu6t 
f nd for defen4^i^ts* ^ Which the Court refused, alle^aj^. 
tbat.it lyas not aj^di^able to this case. And defendfaaots ez^ 
' eepted. • •• 

The defiendants* Counsel then requested the Court to cfamgr 
.Ibe Jury — If the Jury should believe th|it defandanj^ WMl, 
was never in possession of but one half of die laud, and belft 
* ^ the same in severalty, then their verdict for the wbol^ pc€mff»^ 
%nd w^ne profits, c9nn0t.be found against him. Wii|oh «ha]rg9 
.the Court refosed.to give, as. not being applicable to the* casei 
1)0 which refusal to charge defendants.' Counsel excepted. * • 

The plaitttiflk' Counsel requested the Court to oharge ilie 
Jury— • * . * . 

, Ist. That if they believe Absabnl B. McGuir^and C^Aonn 
admitted titles in plaintifib, such admission makes s^ MoChdni* 
and Calhoun hold subordinately to plaintift, and jdaintifii ire' 
entitled to recover, as Kgainst them and against Ohm^f and di« 
fendants,. if the latter claim under said Oalhoun an& -Mh>4l«ii(iat 
2Dd. If the Jury bcBeve that Ahsidoii) HcGuiBev ^f^Sum 



iiA^oif . vmimjAKs mmt, tm. «i 



f l ■! 



i*BH* 



W6od €( «/. v«. McGuire's GhQdren^ 



and Qnjt asd tke drfendants, ftll took with notice of plaiih 
tiflb' title, plaiQt.iff8 are entitled to recover. 

3d. That if Absalom B. McGoire and Galboun admitted 
plaintife' title* their posseesion is plaintiffs' poseession; and if 
CalhooB held Uius from 1837 to 184T, plaintiffs have a goM 
Stataterj title. 

Not. given in charge. 

4th. That if Daniel J. McGuire^ one of the plainti£b| wafl 
h4m within the usual period of gestation, after the death eC 
die testator, that he is equaUj entitled, under the will, wilk 
the other plaintiff). 

(To this, the 4th request of plaintiffii to charge, defendants 
took no exception, considering it sound law^) 

^5th. That if the verdict of the Jury be ip favor of the plain* 
^flb, and Daniel J. McQuire is not of the requisite age to take 
under the will, there being but four other plaintiffs, they lure 
each entitled to one fourth of the land ; it being conceded thai 
IfOvick N. McGruire, oqc of those four heirs, sold hb porti^, 
pbdntifis are entitled to recover three fourths of the land. 

All of which said charges, as asked for by the plaintiffs, the 
Court gave as above stated, except the 3d ; and to each and 
all at which, the defendants tl^en and there excepted, exoepi 
as to the 4th request of plaintiffs, to which no exception is M^ 
ken. 

* 

The Coiurt, after giving in charge to ttie Jury the' request 4t 
Counsel as given to them in charge, and the reftnal to gifie 
. oilier requests in charge, proceeded to charge the Jury as ftl- 
lovs: 

1st. The. Court, charges you, that ^fa party deriving title 
fitom another, mediately or immediately, is bound by admisi&dai 
Bade against that title by the latter, while the title was in him. 

You will, inquire, from the evidence, whether Absalom B. 
McCruire ot William H. Calhwn, while in the possessioB ^ 
said land, and exercising acts of ownership, and whilst diey or 
either <^ them had so claimed title to the land, made any ad* 
aitf on tha) the title to the same was in plaintife. If so, the 

w0h. ini-40 



> • 



• • 



' 814 SUPBEBflS COXTRT OF <J80aQIA. - 

-' — » ' ■■ — ■ ' t S 'i 

Wood tff a/. ^«. McGuire's CbSdren. 

defi^dante claiming xmdm them or ekher of them, are boimd 
by said admisaionSy if any such was made. 

2nd^ The Court oharges yon, that a plaint^ in ejeotmenly 
must recover upon the strength of his own title, not upon the 

^ weakn^s of his ad^rsary's title. But the Court charges, that 
a party deriving a title or pretending^to derive a title from a par- 
ticular fountain, that is an admission by the party, that said foun- 
itainis a good title as tosuchp^ty, deriving or pretending to de- 

. rive a title therefrom. You will inquire from die evidence, 

I whether the defendants and those through whom they claim, 
derive their title, or pretend to derive their title to said lot, 

ft from and by virtue of the last will a^^d testament' of Thomas 
Bainey, deceased. If so, it ia an admission, ^n their part, that 
ThamAS Ramey had a good title to said land, at the iijfaq of 
Us death, and that he has a right to will and bequeath the 

. same, and that the plaintiffs are not bound tp^o behind the la«t 
will and testament of Thomas Rainey, deceased. You will 
tfien inquire from the evidepce, wh^her the defendants and 
those through whoih they claim, have a perfect title to said 
Iand> as derived from the last will ai^d testament of Thomas 

vRainey, deceased ; if you find* that they derive or pretend to 
iterive their title through and by said last will and. testament; 
iC so, you will find for defendants. But should you find, from 
the. evidence, that the plainti& derived their title to said land 

'^from the said last will and, testament of Thomas Bainey, de- 
•ceased, and that they .have not parted with their ^e, and 
that both parties )*ely on the bequest to the children of Mil}y 
McGuire^ then you should find for s\;ich of the plai^tifis as are 
Wtitled thereto under said will, f^d who have not parted 
with their right or title thereto. 

It being -conceded by both parties that L^vick N. MdGoirt, 
one of the legatees under the will of Thomas Barney, deceased, 

*liad parted with his interest in said land, you cannot find in 

^is favor, but you will find against him. 

3d. The Statute of Limitations is also rcKed on f(»r the de- 
fisndantd. • ' . * * 

^e Court charges seven years adverse possessicm wiUgene* 



MACON, FEBRUARY TERM, 1855. 815 



Wood et <U. M. McGuire's Children. 



mlly bar a right of action, Btit the Court charges you, that 
you will inquire from the evidence, whether Ahsalom B. Mc-- 
Chiire or Wm. H. Calhoun^ whilst they had possession of said 
land and claimed title to the same, acknowledge that the title 
tp said land was in plaintiffs, and that if they had knowledge of 
the same, that the Statute of Limitations did not commence to* 
run against fhe plaintiffs till the sale of said land to a purchaser 
without notice of Baid title ; then you will inquire at what time 
Ahtelom B. McGuire and Wm. H. Calhoun sold said land to an 
innocent purchaser without notice if such sale did take ^ce^ 
and from such period the Statute Of Limitations commenced to 
run in favor of defbndants only ;- and if seven years have elapsed 
since such sale, if any, to the innocent {Purchaser, without no« 
tice, and such purchaser and those claiming under him have been 
in possession seven years adversely, you will find for the defen* 
aants. ' But should soten years not have elapsed since the sale 
hj 8 vendor withbut hotice and title of the plaintiff, andean ac-» 
faiowledgement of the same, you will find for plaintiffs, if yott ' 
believe that plaintiffs have established their title to said land, 

4th. It has also been urged by the Counsel for defendants, 
^at a verdict \;ould not be rendered against both defendants 
if they held in severalty. The Court charges you diat severd 
defendants may be jomed in an action, when the tide of the 
j^intiffs in respect to all is ihe same, although* the possession 
is several and not joint, and each of the defendants may be 
^ound guilty for the part in his possession, and the plaintiffs , 
have judgment against them severally. * 

The Court further charges, that no arrangement between the 
defendants themselves, after action brought, x^an defeat the 
right of the plaintiffs to a joint recovery; and in order to pro- 
tect the defendants from a joint recovery,' they must hold in 
severalty under different titles, and not the one from the other, 
and that before the commencement of the action; and that the 
<mu$ of proof of several possessions should be made out by de^ 
fendanta. 

5th. Tbe Coprt charges you, that if yon should find for the 
.|laiafifil^'ar aay of thefei, that jw nnst ba satisfied (hat ^oh 









816 SUPREME COURT OF GEORGIA. 

» i-^i ;^ : A . 

Wood ti al, v9^ McGuire'g Cbildrea. 

■T ■ ■ ■ ■ ■ 

plaindff was bom or was in t$9e at tiie deatk iff the iMtatoTi 
ThomaiiRainey, doc'd^ and as many of die duldren of MiHy Me- 
Ooire as were! in «Me at the deatii of Ihe testator, are 'enttfiiM 
to recovery if at aU^ and you will find in favor of each pkdidifii 
iheir undivided proportionable share of sooh'land and vu»ne^ 
profits, if any, accoifdingly. Lovick N/MeCk^ hi^ving soH^ 
you can find and must ^nd agitinst him. An* Ae Court gav^ 
Ba other. 01* further cbafge. 

The Court, before proceeding to charge the Jury, aOBOonoed 
to Counsel on* both sides, that if they had any Request toumke* 
as to chsE^g the Jury, they must mtfke Such reqneets in wri* 
ting bef<nre lid preceded to charge them. -Iri* obe^ence to tl^ 
announcemeht from the beiich, both side^ prepared requests in 
writing, as heretofore set out, whi(^ was given or refased^ as 
kereitk before stated. ' 

* After the Court had concluded his charge to the Jury, Ue- 
Jenda^ts then asked leave to pr^nt other requests, prepared 
\fy their Counsel, while his Honor was'ddivering his cfav^ 
afid considered by them to be material and* important to the 
rights of defendants. 

The Court, then, refused to hear Codnsel as to d)^ re(|iiestt 
to charge, and the Jury retired to consider of th^ verdict, ' ' 

To all <of which said rulings, decbibns, charges and refiu^ 
to charge, defendants' Counsel thei^ and dmre excepted sfliSii 
now assi^ ^ same for error. 

Stubbs k Hill, for phiintift.in ^ror. 

* 

Lanisb & Anderson ; Poe, for deTeridaats. 

* By $he Oourt* — ^IjUMj^kin, J. deli?eri&g die opinion. 

[1.} The first error assigned in this case is, the rofcial of 
the Court to allow the defendants to re-ezamihe the witAeai^ 
Willilim Johnson. 

A preUmiBary question is raised * in die ai^gimetft of this 
#ap9c, as to llii ff^tofet oonstnii^tioi^ of ^e \fkf of '1M^'4| 



1 



mk!0^ FBBlkn ART TSBM, IM^ • 817 



iff90d €t al, 9t. MoGaire'a GliUdnn. 



^grmthig to Mifft party in a canse &e privilege of u vim v$ee 
eKatniilatioi^ df his advtnaryy in open Court. It is insisted, 
t^Mit inasmndi as* tbe pr^vioos Acts agtli^oriimg discoveries a4 
OonmoB Law did not give the right of ^T'ot^-examination^ that 
neither is it coifiierred by the'late Aet, which is amendatory to 
the Acts of 1847 padi 1849; The Act of Febhtery, 1854, proh 
i^des, that ^' atty party, plaintiff or defendant, in any action at 
CSommon Law, pending in any 'Superior, Infmor or Justioe's 
Courts of this State, wishing a dkcoyeiy-froin or on the eri- 
d^nce of the adverse parly, on tiie trial o^ such action, may 
a|^1y to tbe Clerk of ^id Superior,. Inferior or the Justices 
of the Peace; in whose Courts saU action may be pending, in 
case the party whose evidence is desired, reside in the county 
yhele said case is pcfnding, for a subpoena, requiring said parlor 
to be and appear at said Court, If nd testify in said action as otiitt 
wttnesdeff now, by law, are required to do— which, subpeena ' 
rsbatl be persoplilfy served, 80 days before the term of tbe Court 
4it Which he is rec^uired to attend. And in case sedd pur^ 
shall fail t)r refuse to be and appear, and testify in said action, 
as required, then and in that case, said cause shall be subject 
to the same continuances as are now allowed, by law, for the 
absence or non-attendance of other witnesses ; and after said- 
continuances are exhausted, said action shall be dismissed, pro** 
vided it be the plaintiff who refuses to appear and testify as 
aforesaid ; or "if the party who fails or refuses to appear as 
aforesaid be the defendant in said cause> his plea or pleas and 
answers, if he has filed, any, shall be stricken out and judgment 
given against him by default; or such other order may be ta^ 
ken 0^ had in said cause, as in the discretion of said Court may 
be just and proper. And in tbe event that said parties, plain- ' 
tiff or defendant, whose evidence or discovery may be required 
in action piending in either of tfaid Courts, shall or may^ eidier 
before, at the time or after the commencement of said aotioAi 
and brfore the time of giving said testimony, remove or do re- 
side out of said county in which said action is pending, Ami * 
^nd in, Aat case interrogatories may be ffled, aa is now wuitd 
/V 04ier ffitne$9e%, vnder the p^w nka and regulations as la' 



V 

/ 



4118 . QfTPRBMS COURT 0^ €hS4AC^IA. 



■ ■ ■ 



Wood ei al, vs. McGuire's Children. 



SOW required b; law; and in' case of refiisid to answer the 
same, or in case they are answered evasively^ th^ same rde'^ur 
cnrder may and shall be had as herein before •provided, in case 
of failure or refusal to attend and answer where said {parties 
ar^ subpoenaed to attend in case they reside in ^id county.'* 
{Dunoan^s Ifigest^ 6.) 

It will be perceived that a party ^ under this Act, when sub* 
poenaed as a "witness, is required- to attend the Court and ^^ te%^ 
ttfy in the action as other pfitnessei nou$y by laiv^ are required 
to do.'* In other wt^rds, they are phiced upon the same foot^ 
ii^g, in ikU respects, as other witnesses; The Statute imposed 
no restrictk)n-^no limitation. Upon tiieir testimony or mode of 
examination. We do not feel at liberty, mdckless inclined, to 
do so. It is a beneficial Act, intended to 'facilitate tSie aseer-, 
tainment of truth, the end of. all judicial proceedings, amd 
^bould therefore be libenally construed. To dpny lhe*iight of 
•ross-examimation, .iar to emasculate Ae law of half its streiigth. 

[2.} We return, then, to the main p»int in this exception. 

Mr. Johnson, the witness, had been iiiiroduced and exam* 
ined by the plaintiffs, cross-examined by the defendanjts^ and 
re-examined by tfbe plaintiffs. Upon this reexamination by 
tbe plaintiffs, the questions propounded , were not confined tp 
matter by way of rebuttal to the cross-examination, nor ex- 
planatory of his first examination. He stated, in answer tfi 
an inquiry aisked of him, a new fact as to the r^rorts ih.the 
neighborhood or county, ooncerQiug^ the title to the land ia 
dispute. And the defendant's Counsel proposed to push ,ihe 
itivestigation further, as to this rumor. As for instancy when 
te heard it? whether before or after he acquired title ? i^lso, 

•a to the nature and extent of the rumor ? 

* 

. W«« the Court right in denying to the party thb privH<^ ? 
H^ tlie seeond examination by tiie plaintifis been confine^l to 
wiM was ei^er expUoialory of ^e first, or in rebuttal of Ua 
tmoB cxamJBation, the eyamiaatioa might have been* eonai^ 
ei«d a^ dosed. But the Co^url having suffered thjs new jbm/^ 
t«r ia be brettj^ out, oyportuul^ abouU hnw^ been extndefl' 



MAGOy, FEBRITABT TEKBI, 1866. dl» 

1 — ^ ^ — ^ ' 

. Wopd ei 0L M. McGoire'i ChUdrcn. 

T . . 

to the defendants, to have interrogated the witness fnrther a» 
to th]8.Bew matter. 

[ZJ} llV^ere th^ admiseions of Absalom McGnire, made be- 
tween '18S0 and 1687, adverse to the defiendant's title, oompe- 
t^t testimony ? 

' It is conceded, that. if a party in possession of property, , 
makes admissiot^s against his interest, it is good evidence, both 
as to him and hif priviu. It is denied, hoif^ver, that Me- 
Gnire was either in possession of the premises or had the title 
thereto during that^ period. For. the purpose of lettiqg in this 
proof, we think that both of these facts may be assumed to be 
true* A man by the name of Boberts drew this lot of land. 
No. €8, in what was origii^ally Houston, -now Bibb County, 
.and tha.same was granted to him in 1822. It seems that the 
title to this lot« 'after passing through several inteiteediate con- 
teyatices, vested in one Thomas Rainey, who, by his will, made 
in 18S^, and admitted to record in 1820, devised the latid to 
t^e children of Milly MeGuire, his daughter, the mother of the 
^intiffis and the wife of Absalom McGuire, under- whom the 
defendants claim. In 1830 or 1831, the McGuire family came 
from the up-country and located, for a brief space of time, on 
tjoSa land. But being low and swampy, they soon moved out 
t» a* contiguous tract, continuing, occasionally, to cut timber 
^ of 68, until sold by MeGuire to Calhoun, in 1837. 

It wen during .this interval that the admissions were made 
ky Absalom McGuIre, which were sought to be given in evi- 
dence ; and to the effect, that the hind belonged to his chil- 
dren, under arid by virtiie of his father*in-law*s will. 

While this kind of occupancy, on the part 6f Absalom Mc- 
^mre, may not be deemed sufficient, in law, to constitute ad- 
yene possesion as against'the plaiiitiflrs, stHl, it may serve and 

>8afllce-to let in his dieelaimer of title^ in-hinieetl^ during tUs 
^e. But be ihi^ as it biay, upon the other view t>f the sab- 

'*jeel the point is plab. * Oofloede that the title to ^ds land was 
not in Absalom McGunre, and it clearly was not and neter was, 

.* still, tbtftd^eisdants claiming unto Um, and th^ faot having 

<,iie|^ foify 4igd4M hefcre these aJkrisBitna of MoCMlv^^t^ 



. 910 vnmsmm oeuftr <^ gvobh^. 



Wood 4t al, vi, HcGuire's Children. 



-#— r- 



ofieredy'the defendants are €|pt(^ped from denjii^ hislide. 

..Seeking to shelter tbemselre^ undei: it, as they confessedly 

• do, the J must take- it cum oner^: lake it inciiinbered witlt 

all the admissions made by their vendor refpeqting-^ while he 

held it, an4 before he conveyed to Calhoun. . 

[4. J A great many pqints are raised upon the record, growing 
out of the several charges given and refimd by the Coiirt, 
touching the Statute of Limitations. Upon a c^re^ul Qxami- 
. nation of ^the facts, we must say, tha caae upon ,the proo^ was 
. iairly, not to say favorably^ sub^tted to the Jury for the de- 
fendants. , T^e Circuit Court held, and ffre think, v^ry ]yr^ 
4 erly, that it appearing firom the face of the deed itself, as w|dl 
as the testimony of Mrs. McGuire, and from other circuQistan- 
ceia, that Calhoun ifot only kn^uf^ of plaintifi^* titl^ b^t reoyg- 
nized its validity^ stating that he would risk the deed of .Uie 
'father, who ezecqted the deed as pgrenty .&i^d. the oldest son, 
until the other children became of agey whep he w<9^d}iavel(^ 
• title perfected — ^we sayt the Court very properly rpled, th|it 
40uCh*po|9sessu>n could not ripen into a title, under su(^ ciream- 
stuices;^ but that Calhoun took and held in subovdinajtioa to 
' the plaintiffs' .title; Instead of dain^ng the. fdfe and believaigg, 
' hofiafi^^ that he acquired it^ by virtue of his purchase from 
tbe fadier and the oldest child, he both knew a|yl ^aoknovfl- 
edgedthe contrary to be true, aiKl that the fipe wn In iIm 
l^laintiffii, • • /. , 

[5.] It is insisted, with great ajpparent earnestncma^ by Copn- 
sel for the plamtiffa in eiror, that notiioe to t&e veodee, of «n 
outstanding title, eannot aflbot tbe ^ni fid^ of bift*poaii^ttieiL 
.And in geoeraj this ib true. . If A takes possessiou of Jand^ 
bought of B, beUeviog ^t he has |MM|]atred a U^ aoUceoif j|a 
Mtstafnding title eannol afeol UIb, althongb it tame ^mi to W 
Ike tUM or paramowit tide* B«k te the eaae Wfope ja% thM;^ 
is not only nfi^io€ but rjMynjJNiim;. and Ibis ia tbe ftoptt 4b* 
tiiietiQn, and is fivtal to tba Statfrtoty title aeu|ht te ba sti sf 
n§iinit tlue ^r^oovery. 

CalbQ«B*9 posasasien^ a^iirad (gr a pwebMa^Kw the l«% 
JjLfOtfiMs ^»iiti«i«ed dMm to 1847, iiitbiii.^».|eMi ^of 



f 



MACOlSr, FBBRUXRT term, 1855. 8&. 

i 

"Wood et al. vs. KcGuire's Unildren. 

commencement of the snit, and that fact is conclusive against 

y the bar of the Statute. Had the feoffees under Calhoun, Gray 
and Johnson bought ignorantly, and consequently innocently, 

* TO : .withoiit knowledge of the defects in the original purchase 
by Calhoun, and held for seven years, the thing would have 
been different, notwithstanding Calhoun bought with knoWl-» 
edge. And so the Court, in substance, instructed the Jury. 

[().] It is not 'dispute.d; I believe, that where both parties 
derive title from the same, source, that it is not necessary for 
Either party to havfe title beyond that. Here, old Mr. Rainey* 
is \tkQ , propo8{tv^ or starting point of this title, quoad these 

* parties, plaintiffs and defendants. It was not incumbent up02l 
the plaintiffs, therefore, to go back beyond him and deduce thd 
chkin, link by link, from Roberts, the grantee, to Rainey. 

[7.] We approach, now, a new and interesting question. 
.Where the defendants in ejectment claim different parceld of 
laud under distinct titles, and do not sustain the relationsbiJ» ' 
of landlord and teqant to each other, can a joint act^ionbe 
maintaiiied against them, and either a joint or separate recov^ 
eiy he had for the premises, as well as the mesne profits ? 
The Court ruled, tliat this might be done, dnd the decisions ia 
K^w York fully sustain the practice. That this Vnight be dott& 
ut Common Law, so far as the recovery of the possession was 
concerned, and may still be the doctrine in those States where 
the Common Law rule has not been changed, is quite likely. 
In the fictitious form of action adopted from convenienct, the 
title to the premises only was settled ; and the real partite 
then litigated as to the mesne profits. Mr. Adams, however, 
in his standard work on Ejectment, intimates that the rule is 
different, even in England, {pp. 236, 237.) 

In this State,' meme profits must be recovered in the same 
suit with the premises ; and a subsequent action *cannot be 
brought to recover mesne profits. Apart, then, from the ia* 
eonTeHience of complicating the defence of one defendant iriA 

.that of anoth^, o^ separate yerdicts be rendered agaitwt 
(Jiem ? We know of no practice to warrant it. In this case, 
▼OL. zm-^l 






922 



SUPREME C'OUftT OF GEORGIA. 



Wood 3 tt^. v^. McGuire'6 Chililreii. , 



tile verdict was joint for the mesne profits as well as the po§- 
^S£(ion of jihe premises, notwithstanding one of the defendants, 
had only occupied a few acres of the land ; and the relation of 
landlord and tenant did not exist between them. * 

His Honor, the presiding Jitdge, charged that no arrange- 
«]fteilt could be made between thd parties^ after suit brought, to 
prevent a joint judgment. And .this is true. But the proof 
bJiows that Wood bought of Johnson in' 1850, whereas f!he ac** 
tlon was jiot instituted until 1852. ' The defendants, therefore, 
held independently of each other, at the commencement of ^the 
sail. Upon the best reflection we* can give this subject, and 
wit]^^ view to the establishnlent of a proper practice, we fed* 
txSnstrained to oveir-rule' the direction given to this branch of 
A^ cftse. 

. ' [8.] We fbar, too, we cannot sustain the Court in refusing 
•to listen to the written requests to charge the.Jury,.atthe con* 
dlusion of the general charge whicli be had already given. 
The Act of the last Legislature imposes this as an imperative 
daty upon the presidhig Judge, and prescribes no particular 
tjme when it is to be done. And as yet, the Judges^ in ;con- 
veuticfn, l^ave established no rule upon this subject. It is 
4«ubtful whether it be practicable of politic to do so. What 
-tbe requests were doe's not appear; the record is silent - npoil 
4U8 subject. It may have been to supply some omission ; and 
if so, the application should have been complied with.* The 
UU of eitceptions, ad it stands, places the Court in the predio* 
ftmetkt of refusing to listen to any request, regardless of its 
^aVacter. Ahd^to affirm this, would be to repeal the Statute. 



' , 



• • 



i 



^ACOl^ FEBRllART TERM, 1855. 82t 

i ' — ■ • ; 

DftTis and Redding v$. The Cent. R. H. & B'kg Co.* « 

No; 60. — ^Benjamin Davis, plaintiff in eiTor, r«. The Ci^ 
TRAL Bail Roap & Banking Company, defendant. Row- 

LAND RbDDIKO V9. ThE MaCON & WESTERN R, R. Co. 

[1.] Tha Act of C^e 20th Februarj, 1 854, *< to define the liabilities' of the ser- 
era! Rail Road Cfompanieq of this State, < for injniy to or destruction of lire 
•took, killed or injured/' Ac. is not in violation of the Conatitutipn of the 
SUte. 

p.] Nor IB it in Anolntion of the Constitution of the United States. 
• * 

.Trespass, ■ in . Bibb Superior Court. Tried before Judge 
HARbEMAN, November Term,. 1S94- 

This iras & proceeding inthe County of Bibb, against the 
• ' Central Bail Road k Bk'g: Co., for killing, \M<^ mules Itelong- 
ing t9 the plaintiff.* 

The case turned upon the constitutionaKty of the Act of 
|854, which authorized such* proceedings against Rail Road 
Companies, to be had in the County where the fact occurred,, 
^ad the point ^Ca^ brought up by the defendf£nt*s plea to the 
jaisdictio|i of the Court, ^vhich was sustained by the Court; 
aod'tfae Act in question was 'held to be unconstitutionaL 

Qn this 'decision error js- assigned. 

«¥toeeediBg to assess' damages on appeal, in Monroe Superi* 
t>f €barU Decision* by Judge Starke, September Term, 1854. ' 

. - ■ 

QvsWae a prpoetding under the "Act 6f 1854, entitled "an 
AoC to define the liabilities of the several Rail Road Compa- 
nies of thb State, for injury to or destruction of live stock, 
kHIed of iiyured ; or for destruction of of injury or damage to 
preperty other than live stock, by the running of cars, engines, 
Jtc^&e/*' The Rail Roftd Company . filed a plea to* the juris- . 
dktion, om tke groundthat the corporation had its residence in 
BM> County ,f and that its tresidei^t and principal cflScerd resi- 
ded there; and that' all suits against them should l?e imhat 
Cei^f . ?lfe Court over-rulecj a demurrer to this plea, hold- 



I 



« • 



324 SUPREME COURT OF GifoRGIA- 



, Davis and Redding vs. The Cent. R. R. k B'kg Co. 

■ ■ i ^ '. 1 ' : — 

ing the said Act of 1854 to be unconstitutional imd' void. * This 
• decisioji }s assigned as error. * , 

■ 

PiNKAiiD, Stevens, Harman atnd Stubbs & Hill for 

plaintiffs in* error. * 

♦ 

PoE, Cabiness, Hammond, for defendant in error. 

Sy the Court.^ — Benning, J. delivering the opinion. 
» 

,ThjBse .two cases .were argned and decided together. In each 
is but a single question, and thM is coQimoa to both. The 
Couits below, from which the cases respectively come^ decided 
the Act <)f the* General Assembly of .the 2Qth February, 1S54, . , 
to de&ie the liabilities Of the several Rail Boad Compani^^ of 
this State> for inji^ries done^to stock, &c. by their cars, ^. and 
to regulate the mode -of proceeding in such cases, &c. tobeun- ' 
* jcoi^titutional. And those are the^ decisions .assigned i^ error 
•in this Court. . * • , . , 

Consultnng convenience, I shall treat those decjsions sapor* 
ately, beginning with that rendered in the.case oCDat^ a^4^>^ ' 
the Central Rail Road ^ Banhing Cpmpany^ 

The Coprt below held the Act aforesaid to be unconsf^tu- 
tfonal — was that decision right ? This is tbe.sole question^ ^ 

The Act declares, in substance, that the Rail Road Copii>a- 
Bies of this State, for injuries done by .them^ to stock, &c. shifll 
be liable to be sued, in th# counties in which the ii^^aries inay 

have been committed. 

* 

This Act the^ Central Rail R^ad & Banking Compaiiy sajfS| 
violates both the Consftitutioi^of the State and. that of tlie U^ 
ted States — violates the part df the Constitution of thp Stsa^^ 
which is in these words: ^'The iRferior Coiirts shall .afea have 
concurrent jurisdiction in all civil casee, exempt ii ciises 
pecting titles to lands: which shall be triqd i^*the Goi 
wherein the. defepdant resides*/' and vielates that pa^ftftf Ihii 
Constitution of the United States, .wMch is in dMwe igM^^ 



•■I 



MACON, FBBRUARY TERM, 1855. 325 

Davis and Redding m. The Cent. R. R. ft B'kg Go. 

» 

'^Ko State ahall*' ^^ pass any** ^^ laws impairing the obligation of 

contracts." 

. And to show the Act to violate this part of the Constitution 

of the State, the argument of the Rail Road Company is as 

follows : 

This part of the Constitution, declaring that no person shall 
« be sued elsewhere than in the county in which he resides, de^ 
clares, in effect, that the county in which a person resides is to 
be asbertained by the law of residence, in force at the time of v 
the declaration i. e. at the time of the making of the Constitu- 
tion. 

,' That that law, therefore, is not subject to repeal or change 
^y the Legislattire. 

. That by that law, all iflail Road & Banking Corporations re- 
pide at the plafoe where they keep their "principal office.** 

That when the Act aforesaid was passed, the Central Rail 
' Road & Banking Company^ kept its principal office at Savan- 
nah, in the County of Chatham. 

That, therefore, when the Act was passed, the Company, by 
that irrcpealable law, resided in Chatham; and so, by the 
Constitution, was subject to be sued only in Chatham. 

But tbat notwithstanding this, the Act of the ' Legislature 
aforesaid, says either this, I repeal that law which makes the 
residence of a rail road corporation the place at which it keeps 
its principal office ; and henceforth, wherever such a corporation 
injures stock, &c. there I make its residence to be, and there 
I make it suable. . 

Or this — I do not repeal that law; and yet, wherever such 
a Corporation injures stock, &c. there I make it suable. 

That whichever of these two things it is that the Act says, 
it does what the Constitution declares sl^all not be done. 

And therefore,, that the Act violates the Constitution. 

This is the Sirgumenti of the Rail Road Company. 

In:this argument, one of the propositions is, that by the law 
* as it existed at the tiipe of the making of the State Constitu- 
tion, the place of residence of a Rail Road Corporation, is the 
|lace at which it kee^s its principal office ; and this prepoaii 



f • 



\ 



826. SUPREME COURT OF GEORGIA. 

Datis and Redding vs. The GeoL R. R. & B'kg Gq.' . 

; rt ■ 1 7^ 

if on, it was insisted, is sustained by several d^cisv^ns, and limoiig 
them the decision of this Court, in the The Central 'Bank vt^, 
Gibson J (11 Ga. B.) 

But this is not the proposition which thjit decision .goes to* 
sustain. The proposition which that decision goes to sustaiflt 
is this: that if the charter of a bank says, the bank shall be es-. 
tablished at a particular place, the charter, itself^ uieans to aay . 
that the bank shall be a resident pf this place. Ji\ other wo^d^ 
tthe decision is, that if the Legis^ture plainly say^, a qorpon-, 
tion'^ residence is to be at a particular place, its residence ia 
to be at that place. . But it is.not the decision,* that if the char- 
ter of a bank says only, that the bank is to have its ^'prinpipal « 
office" at a, particular place, t^ie cliarjer says, in effect, th^t ihe» 
bank shall be a resident of that place, much less i§ it the decis^ 
ion that this is so, when the charter is .the ch9.rter, not of 9l 
bank, but of a rail road. Nisbet, J, who delivered theopm- 
ion, seeping to speak for himself jalone, it is ^rue,.,Bays that if 
the charter had not determined the locality of the bank^ he; 
should have held it a resident for the purposes of a^suit in the, 
county in which was its place of business. $utin what cdunty 
is tjle place of business of a rail road ? Is. the business, of » 
eondtmon carrier done in a house ? What would have been his- 
Honor's opinion on this point, does not appear. * This, how^ 
e^er, is what his Honor says, when apparently speaking fo^ 
the Court. Howe w plausible the idea may. he, that a corpo-* ^ 
ration, an intangible entity, deriving. its ezistenx^e apd i^U its 
functions from the Legislature^ and possessing qo personally, 
ie ubiquitous within the limits .of. the State, in the absence of 
any designation of its^ locality ; yet, in .this case it ha§ no ap- 
plication, because the charter of the Central Bank fixes its lo- 
cality at Milledgevilh — tAere. therefore, it is suable — there it 
is made by law commorant. It is an artificial persoI:^ reiident 
by legislative enactment, at MilledgeviMe. The Charte];*pro- 
ipides ^' that a bank shall be established in behalf of the.State . 
of Georgia at Milledgeville, in said State,> to be ki\own ii|i4 
called by the name and style of the Central Bank of Georg]^*' 
((frince^ 72.) This se^ms to be conclusive of '4iu8 qpoa>im| 



■ MACON, FEBRUARY TERM, 1855. 327 

* 

■ ■■ ■ • ■ ^ 

Davie aifd Redding t^». The Cent. R. R. k' B'kg Co. 

TKe provision Jn the charter of the Central Rail Road and 
Banking Company is this i " The principal ofiBce of the said 
X!ompany shall be located at Savannah, with subordinate offi- 
• ces or agencifes at Macon and such other places as the board of 
directors shall determine, and all elections and meetings of 
stockholders shall be held al such principal office only." This 
is not the same as would have been a provision, that the corpo- 
ratioif " shall be established" "at** Savannah. 

AYti to say that a person's office of business shall be at a 
. particular place, is not necessarily to say that the person's res- 
idence shall be at that place. There is a Statute which de- 
clares, that the Clerks of the Superior and Inferior Courts and 
of the Courts of Ordinary shall keep their offices, books and 
papers, at the-court house of their respective counties, or within 
one^le thereof: but Mid any body ever think tbat this was 
saying that X^e courthtouse," or some plade within a mile of it, 
was lo be the residence of those clefks ? On the contrary, the 
implication is, that though these Clerks may reside any where, 
they* must keep an' office at the court house. ( Cohb*8 Dig. 199.) 
V *TEe proposition, then, is not established by this case. 

'Another of the, cases which it was argued gave the proposi- 
tion support, was that of the LouiavilU Rail Road Company* 
vs. LetBOn (2 How. 558.) 'The decision in that case was, that 
a'Rail Itoad' corporation is a ^'citizen" of a State; and to be 
that, the decision had to over-rule two other decisions previous-* • 
* ly made by the same Court, viz : Bank TJ. S. vs. Deveaux^ (5 
Oranck. 91.) Com, B'k of Miss. vs. Slocomb, (14 PeterSy 60.) 
And of these two decisions, the former was a leading one-^was^ 
made &fter argument elaborate and able — argument, in whic^ 
Binney, and Key, and Harper, and Ingersolf, and Adams took 
fSiTt/ In a case thus argued, the Court could not tolerate thq 
Action that a corporation i» a citizen- — ^it could go no further 
l^n to say, in effect, that a corporation is a partnership, and 
tfaftt in partnerships 'the individual members may be citizens. 
The Court had to go this length to get jurisdiction, and truly 
tlus was going a (L grea^t length for jurisdiction or for any 
llmg etse-HBnch too far, J, shall not* diapirte. 






328 SUPREME COURT OF GEORGIA. • ' 

> - 

Davis and Bedding vs. The Cent R. R. & B^kgOo. 

The case aforesaid of the Rail RoaZ Company against Let^ 
son. however, over-ruled these two cases and decided a rail 
tOB,d corporation to be a citizen of h, State. That decisioiiy 
too, had to be made to enable the Court to get jurisdiction ;• 
and although it may be thougHt to go fuUj as far for that $8 
the cases over-ruled had gone for it,*yet the 'decision goes no 
part of the way towards showing tba't the place of residence of 
a corporation is the place whiere it keeps its principal office. 
That decision merely said that the rail toad corporatidh in 
question in the case, was an ifihabitant and a citizen of the . 
whole State of "South Carolina. * . 

Another of the cases referred to as supporting the proposi- 
tion aforesaid, was Cromwell V8. Ina. Co. 2 Richy {S. C.) R. 
512. But that case is not in point. 

The cases then cited by the defendant in support of the'-pro- 
position, are not Sufficient to support it. Let it; 1be Borne in 
-mind what the proposition is, viz: that the residence of a rail 
road corporation, is where it keeps its principal office. 

With respect to this proposition,' there' is, however, somethmg 
more to be saiid. * ' • 

The decision in Rex vs. Q-ardner^ Cowp. 79 is, that a cotpo- 
'ration, seized of land in fee for its owb profit, is within the. 
meaning of the Statute' 43 Elia. (?.'2, inhabitants or occupeis 
of such lands, and in respect thereof, liable ih its corporate ca- 
* pacity to be rated to the poor. And Lofd Cohe^ in his exposi- 
tion of the Statute of the 22 Een. VIIl^ c. 5, says: ^* Every * 
corporation and body politic residing, in any county, *ridiiij^ 
citie or towne corporate, or having lands* or tenenients in any 
shire, nding, city or towne corporate quae prdprtis mantbus et 
sumptibus possictsnt et halfent are said tb' be inhabitants there 
within the purview of this Statute." (2 Ins. 703.) And hS^ 
derives the word inhabitant from the word haleo^ anfd says tbtf 
wherever a man Jms lands he inJuxiits : that if the man bhg 
lands in different places, he is an Inhabitant of all of the pl&e)w^ 
{Id. 702.) His words are^ ^^ although a man be dwellh^in 
an house in a forr^gne county, siding cit^,1or towne cor|>orste^ 
yet iif he bath lands ^ toiements .in his own pOBseapioii, aai 



iUCON, FEBRUARY TERM, 1855. "829 



Dav!& and Redding m. The Cent. R. R. k B'kg Co. 



fnanorance in the county, siding, citie or towne corporate where 
Oh declined' bridge is, he is an inhabitant, both where his per- 
flOB dwelleth and where he hath lands or tenements in his own 
possession within this Statute. Nota^ habitatio dicitur ah ha- 
ienchy qtuaqiiejpropriu manibus et sumptibus pcssidet et habet 

, tW. hatkUare dicitur '^ Inhabitants is the only word used in the 
Statute. 

According to these authorities, certain corpora timis, for the 
limited purpose of a liability to taxation under these two Stat- 
utes of Henry VIIL and EUzcleihj are to be considered as 

. eapiftble of being *'inhabitants"-*-capable of being "occupiers," 
and as Actually being " inhabitants'' or " occupiers,*' in all pla- 

, oes-in which tt^ey have lands or tenements. Whut Lord Coke 
meant by the word *' residing,** is not clear. He may havo 
meant that eVery corf oration is to be considered. as residing in 

. a^ county whose head resides in. the county, T)r whose njanagers, 
•or whose members reside in the county, or whose business or 
whose chief business is carried on in the county, or whose char- 
ter says, that it shall reside in the county. What is clear, 

. howeyer, is, that c^rporation3, for the purpose of being taxed 
tmder these two Statutes, were held to be inhabitants of every 
place in which they h^d kinds or tenements. 

And if there is any English authority going to show that 
corjiprations are capable of being inhabitants, occupiers or re- 
aidents, under i^ny rule of the Common Law, or under any other 
Statutes than these two, or under these two, for any other pur- 
pose than that of a liability to be taxed, I am not aware of the 
Authority. 

liCt i^ be admitted, however, that the English law was such, 

' that under it* corporations were not Only capable of being in- 
hahitants and residents, for all purposes, but were actually in- 
,lilS)itant6 and residents, for all purposes, in all places in which 
they either had laads or tenements, or in which they did bus- 
iness. Let this be admitted to have been the English law. 

I Ihen^ it folloYTS, that this is the law which Georgia adopted, 
lii^ she adopti^ the English law generally. And it may be 

■ * 



# • 



t • 



• 



mO' * SUPREME COtJRT OF GEOHGU. . 

^' ^ U'V ' I iii«i ^ III I. ,immm^a^^,^K^^m^»* 

• * Davis And Redding vs, 34ie Cent. R. R. & B'kgf Co. , , .. 

assumed, that .the laW on this subject-rithe c^^ence of carpo-* 
rations, which Georgia udopted, was^he la^rwhichwas in force 
within her limits, at the, time when she was making her Consti^ 
tntion, and was therefore the hm which* she had reference to^ 
^ she had reference to any existing law, as the law for a§ear-' . 
taining the residence of corporations. 

But this law is very different from.what is assumed ia the 
' proposition' of the defendants undet* consideration, to faaye been 
'. the law. In that proposition, the law is assumed, tq hare been, 
that a corporation's residence, is at the place %t whi^h itkeeps 
its principal -office ; or say, at which it does its chief bus- 
iness, and at no other place. *Thi8 law is, that a corpora- 
tion's residence is not only at the.'place at which, it' keeps its • 

* principal ofi^oe, but also at any place where it has faneb o/ ten- 
Bments* . *.. ■ ' / . 

And if this was the law which the Constitution had re^ 
ence to, and which; if any, if impliedly deelared irrepealabli^* 
the* Act of the Legislature in question cannot be in* 6tKiflkt 

'^with the Constitution, for that Act, in providing tbat'nul road 
corporations may be sut4 wherever, by their etigines, .4c. they 

/kill stock, does no more thiin provide that they n\ay ha-^nad 
wherever they have latkis^—thej havjhg 'lands wherever their. 

'•engines go ; and so, does no more than pxovitle that they, majr 
'be sued where they reside. 

* But,, indeed, it is not to be conceded, e?ccept for the sa^io pH 
ctt'gumeDt, that this was ever the English law, or that if 'it e^, 
was, it-was adopted by Georgia. Even if Georjgiaadojptediihe , 
two Statutes of Senrif VIlI.firiA JEKmbeth, together ^wth the 

' 'ititerprctation put on them, that they extended, .by the" u^e. «C • 
the words, " inhahitants" and " occupiers,'* to corpoiMlb^ 

* there is much evidence going to show, 'tbat'-out&Sde of th^ae^ 
Statutes, she considered corporatiops as not bein^ '^inltttl^ , 
tants'' or "residents.*' • * " * ' . 

1. -In a,8inrihLr Stiatute^ of hef own-^tfc^ Stattfte^OftMJM^tb- 

* «ilhortise the Justices of theinfei'iorOcKirtstd levy ^zt^^^diodfy' 
tasesfor comity purposj^s, she -uses the word- itHbiUl^^^f^ 

Z^fainQg. that the Jus(i<>^« of'- the* Inferior * Courto itmM lihiTn * 

« • 

• * 

• • • -. . 



« 



t 



MACOir, FEBRUARY TERM, 1855. 581 

» • 

Dftvis and Redding t». The Central It. R. ^ B kg Co. 

» 

power ^^tO'levy^mpon the inhabitants of any county in which ' 
die eaidJustices may reiide, a tax, extraordinary of the gene^- 
raLState taxa" {OobV$ Dig* 184.) And yet, this power, as. 
iar as I know or believe, has never been considered as author^ 
ixing^the Justices of the Inferio;: Courts to tax banks, rail 
roi^or other corporations, although it is a power that author- 
ises then> to tax all ^^ irOu^itanU'' Have. hanks and rail* 
roads ever paid tax under this power? Have they ever paid' 
the. tax, either, in tbe county in which they had lands — in 
ifbioh they were therefore inhabitants, if holding lands could 
make inhabitants, or in tlie county in which they had thein 
chief ofiBce? Never, ineither, I think. If they never have 

, the inference is pretty strongs that the word '^ inhabitants,'' in 
this Statute, was not intended to include corporations. The , 
Statute is over thirty' years old. It is true, that the charters 
of diHue of th^^e corporatiohs may, perhaps, exempt the corpo-* 

, rations from this tax ; at least, as far as their stock, is coa* 
oemed. * 

V And if this be the interpretation which Georgia puts upon ' 
the word ^^ inhabitants," in a Tax S|l!|ute of her own, the ef- 

*fect, may, perhaps, be thought sufficient to overbalance the ef- 

« feet of tiie opposite interpretation, which Lord Coke puts upon! 
the. word in the English Statute. 
2. And the notion, that corporations have not been consid- 

' ered, in Oeor^ia, inhabitants or residents of any particular . 
coudty br place, derives support from the nature of several of 
Twr generaj Tax Laws, Th^s, the Act of 1817, providing for 

' ^ ta:^ on bank stodk, makes the tax returnable and payable^ 
not to the Tax Heceiyerand Collector, respectively, of any 
iaimtyy but to the Treasurer of the State. (CoWb Dig. 1063.) \ 
The same thing, as to stock in the steamboat company, is 

, done by the Act of 1821. (flobVs Dig. 1064.) And as to 
the stock in rail roads,. by the Act of 1850. {Id. 1079.) 
Whereto, the Act of 1830, (Id. 1067,) vrhich is made for • 

• private bankers, &c. provides that such bankers, &c. shall 
iSnake their tax returns and payments to thed^ax Receivers and 
Tax Colloi^tots of the counties; .and duis^ seems to say^ that' 



t 



332 SUPREME COURT OP GEORaU. * 

III' I > m 

D&via and Redding vs. The Cent. R. Jl. A; B'kg Go. 



■■ *- 



as to them, they stand on > differen); footing from that 'of in- 
corporated banks^ and are inhabit<y^ts and residents of 1^ 
conntieSj^like.anj other natural persons are. 

If the true interpretation of these State Statutes be, that 
they do not include eorporationp, though they use the^ wari 
*^ inhabitants j'' a foundation is lajd for an inferetiee^ more ot 
' less strong, that the true interpretation, to be put- upon tlie ' 
' Constitution, though it uses the cognate i)Ut nai^ower word^ 
^^ resides*' is, t^at the Constitution does not include, corpoia- 
tions. 
But at least this much may be. said , with .confidence : that 
; from these Statutes no argument is to be drawn ia favor of At " 
proposition, that a corporation resides in the, particular plaoe 
in which it does its business. 

3. On th^ other, hand, the practice of suing banks, in 4he 
'counties in which they do their business, may be thought to 
furnish an argument iu favor of {he notion, that bknks reside, 
ia those countied. The argument however, will not- bear ex- 
amination ; for why is.it that- suits, are brought againat ^banlp 
. in such counties: Bqecuise they are the counties in whidi. 
banks do their business ? No — but because they a^ the^coiai^ 
} Ities in which the presidents or heads of the banks reside* These # 
. reside at the placfes at which. the banks do. their business;, and 
h is upon them that suits against-the bs^nks have to be served. 
At least, this was so until Utely, .If it had beeiL the law, 
'. that banks. resided where they, did their business, a ' different • 
sort of pradtice would haye gtown , up, viz ; a practice -of per- 
• ving suits on banks, by the leaving of a copy of petiti<>9 and . 
prpcess at the place at which they did *theiE«. business; for it 
' -has been lawful to serv^ defendants by the leaving of such. oo- 
fj at their residence, almost ever since Geoigia became^ *a 
State — ever since the passage of the Judiciary Act cflT flX78L , 
\[Watk. Dig. 22Q) / . . ./ 

» Kecently, -however, the law in this respect was chMdged. . . In 
1845, the General Assembly passed an Act* declaring, thi^ 
'^ process necessary to the commencement of apy w^ .8|^^JBBt 
' .^ny corporation," ** may be eijequtgd, by lea^il|{^tb<t'««4l|«:rt 



* • 



• ^ 



•' MACON, FEBRtJABY TERM, 185ff, • '333 



^_ » 



Davu and Redding vs. The Ceot. R. R. ft B'kg Go. 

• * . ' - 

\ Ike place of transacCiiig the usual and Ordinaiy public business 
#f said corporation," &e. And the fact, that this Act waa 
' passed, is evidence that the Legislature thought the place * 

. of business of a corporation, not to be the place of its residence. 
Else, why pass the Act. 

And did the Legislature mean, even by this Act, to say, 
^t the place of- business is the place of residence ? The 
•terms of the Act are consistent with that idea, but then they 
are by no means inconsistent with the idea, that the Legisla- 

' tnrcT intended nothiiig iabout residence — with the idea, that it* 
considered corporations a'S not " inhabitants*/ — as not residents, • 

' — a^ not at all within the word of the Constitution — resides — 
and so, not inconsistent with the ideii that the Legislature con- 
sidered them*as subject to be madie suable at such place as it . 

• might see fit to appoint.* 

One thing, however, is olear^ and- that is this: if it was by 

V Hhia Act that th^ place of business of corporations, became also 

4heir place of residence, equally, by another Act, another place 

may become their place of residence — ^in other words, it is 

I dear, that what shall be the place of residence of a corpora 

ation, is a que$tion over T^ich the Legislature has power. 

Upon the whole, we avoid expressing an opinion ^ to whether 
the defendant's proposition is true or not — the proposition, that 
the place of residence of a bank or rail road corporation, is the 
place at which it keeps its principal office, or does its chief 
business. /The decision we Ynake, turns upon another point — 
one as to which we /have a clear View. 

% * 

It may not be improper, however, that I say for tnyself, 
. that I incline, very strongly, to the opinion, that corporation . 

defendants, are noi included in the words of the Constitution 

— ^the woMs "cases" "which shall be tried in the cOuflty 

wherein the defendant resides." 

When the^ or words of the same import were first used by, 

the State, there were not, as I think, in existence, in the State; 

any corporations liable to suit; and so, not in existence any to bo 
« ^f the defendants, th^t were in the contemplation of the ma- 

i[0D8 of flip Constitution, when they, said, defendants were to \ 



•♦ 



» • 






« t 



. • . 



• . . 



• * 



4 






/ 



t 



$34 * SUPREME COURT OF GEORGIA, ' ' \ 



Davis and Redding w. The Central R. B. it B'k£ Co. 



m ' w 



he sued in the county in which they resided. The words were : 
first used in the Constitution of 1777. 

In the view we take of the cabse^ it i&ay he conceded, diat m ^ 
corporation has residence, and that that residence is its place * 

'of bitsiness; and yet, the Act in qiiestioA^be constitutional. ' 

Do^the words of tlie^ Constitution, *' which* shall be tried in 

the county in which the defendant resides/' meaii to say, that 

the county in which a defendant resides, is to be 'ascertained,^ , 

only by the law in forcef at the time of the makiiig of the (>on«> 

'slStution — ^that the law of residence,- at .that time in force, shall '* 
not be subject to alteration or repeal by the Legialaiure,.a8 it 
is insisted by the defendant in error they do? In the opinidll ' 
of this Court they do not. •. * **. , " • 

The words are satisfied, if the defendant be sued in tiiat 
county in which he has been made to reside, by an Act of the* ' 
LegisliE^ture- When, by* a:Statute, he has been declared tore^ 
'side in a particular county, and he is afterwards sued in tiiat • 
4»|>unty, why is he not sued " in the cbunty in which'' hie ** ret 
fides ?'* Had the words of the Constitution been, ^^ which AmU , 
be tried in the county in which the defendant residpa*— hid re9- • 
idence to be determined 'by the' law i^ow" — (i. e. the time of 

*the making of the Constitution,) f'in force" — then, ))ower over* , 
the law of residence would hare been taken -from tiii LegUa^' ' 
ture. But these are not the words. And what reason can ]' 
there be, why the p6wer of the Legislature jover rendence, atf 
it respects defendants to suits, (Shoifdd be taken away, and jcs^'\ 
the power be left over residence, ' as it resp^ts yoters^, roij 
hands,' militia men — persons in all other relations or capaeitiOlf * 
* The sort of interpretatibn that would take from the L^sli^ 
ture power over the law of residence, applicable to *defbiij- 
ants, would equally take from it power t)ver thelikwreguli 
edunij lines. The same Constitution declares, that all. erai 

. nal cases, with some exceptions, ^^ shall be tried in the'^^Miobl^*. 
•where the crime was committed;" andlhat all .caseg ;"" '* ™ 
ing titled to lands, ^^^haU be' tried in the* county »w] 
land' lies." But has the Legislature, by this^ beefi' 
power to toy,.aftet> the time .when a cri|Xiq^lw&Q69f| 



•.• •. t 




« 



* 

* 



9 
* 



'• MACON, fEBBUAEY TERM, iteS. , • m 

■ > ■ ■ ■ 1 I f 

* • DftTig Mid Redding vi. The Gent R. R. Ac Bicg Co. * 



. , '%r when a cause of action for land baa arisen, that the comity 
* . *in which the crime .was committed or the cause of action arose^ 
' ahoald have an addition made to it h^re, or a subtraction from 
it there — should be divided into two counties? And yet, any 
change of this sort, made in the county, produces a change in 
the state of things, on which the fate of the suit is to depend. 
It adds to Or- diminishes the number of persons from whom the 
Jury is to be got-r-may alter the- mode of reaching ^ndtnetoes, 
and may make other chabges affecting the suit. ' 

It hag never b^en thought, that by these words, the Legisla^- , 
* / tore has *bcen deprived of any power over county lines. And 
' tiio power over ["county lines is one which the Legislature has 
exercised as often,' perhaps, ^s it has any other. So, too, the 

• Legislature has felt itself empowered to say what is residence, 
and it has said what it is. This it has done in a general Act/ 
entitled ''An Act to more fully define the legal residence of . 

' citizens and inhabitants of this State." That is the Act of * 

N ' 1888. {CobFn Dig: 530.) The power of the Legislature to 

' pas^ this Act, has never been questioned. This Act relates t6 

, the residence of natural persons ; but if the Legislature have 

'power over the lanw of residence as to natural persons, they 

' • . "must, at least, equally have power over the law of Residence, 

. as to artificial persons. 

This Act may be thought, perhaps, to throw gome light on 
Xhe question discussed in the first part of this opinion. The 
title of the Act is more fully to define the legal residence of , 
, *bitizens'alid inhabitants of this State — that is to say, of all 
. who are citizens and inhabitants of this State. The preamble 
. ■ IS equally broad. And yet, the body of the Act restricts itself 
.to defining the residence ofnatural persons, as if the opiniont , 
of the Legislature was, that natural persons had a residence, 
^ but that artificial perdbns had none. 

• • Upon Ae' whole, what we think was meant by the part of^ 
ihe Constitution in question, is this : that all civil cases are to 

• b^ tried in the county in which the defendant resides — the 
•'^omty in whicH fa^ resides being to be aseertiarfned by the law* 

*t , * ^f^it^Mleace^ stfiich may happen to be in existence at the thmi 



• • 



. . 836 , SUPREME COURT OF GEORGIA. * 

^ ii^iii- ■.,■ ■-.-— i.— t • ^ -■ — ■ — '■ - - ■ ■ ■ ■■ .1 ..I — I ^ 

. , * ' Davis and Redding tw. The Cent. R. R. & B'kg Co. • 

• : ? 1 : e : 

• ifhen the case arises, or perhaps^ at the time when the case ia 

' to be tried. . • 

Having this view of this part of the Constitution, we of 
■ , course have to regard the subject of residence, whether of nat- 
ural persons or artificial persons, as within the power of the 
Legislature. 

.* That being soi the question left, as to ,the Statiite's beiag a 
violation of the State Constitution^ is, whether the Legislature 
intended, by the Statute, to say, that the residence of jrail road 
corporations, for.th^ pucpose of iei * liability to suit,, should be . 

■ deemed to be in the places in "which, by the Statute, it author- ' 
i^^ed suits against such corporations to be brottght. . \ . 

The Statute declares, in substance, ttat railroad corpora^ . 
tiions shall be suable in the several counties, thi^ugh or into 
. which their rail roads pass. Suppbse it had said that such 
corporations should be considered-^as residing in sucn counties, 
for the purpose of a liability to suit in the counties? If it had 
Said this, it would, in the view whicK we'have taken of the Con- •/ 
Btitution, have, said iTothing against the Constitt^ion. And ^ 
yet, what is tte 'diflFerence between this and what the Statute* . 
does say ? In effect, it is nothing. And ought a Statute^A , 

• * whicji, in effect, . differs in nothing from what would be a con- .\ 

fltitutional Statute, to be itself considered unconstitutional? 
, ' Rather, in such a case, ought not every possible presumption ' 
. to 'be- made to rebut the idea, that two departments of the Gov- , 
. emment, both sworn to support tlie Constitution, bad violated '\^ 
the Constitution ? Most certainly. It, therefore; may be jf^\*' ^ 
presumed, that the Legislature, in makijog these corporations li|i- .' ^ 
, Me- to be sued in certain places, intended to make them, for'the 
purpose* of a liability to h& sued- in those places, residents of 
the places. Esrp^ially may this be presumed, when the ^ires-^ ' . 
,tions, whether corporations have residence at all — w]^ther| i\ , 

• corporations have residence at all, the residence of ^bfis&.tfyti 
porations, was not already, by the old law, in the J^ae^JBtV; 

> •which this Statute says they may be su^d — iil«^es>Sn,.lrl8i' 
tt^y had lahdd-rpla<?es in -jf Jrich, bwng,x5amti«)H p«wA(^f>li^ . • 



WA(^QN, FBfSRTJJkBS TmSi, Ifltf. 

' • • Davis and Redding rt. Tb« Cent. R,K k Bk^ Q«. 

. —» J ^ ^ ;. , 

must have beei^ ioing much of theif business — are ^ivtstioD^-^ 
too much doubt. 

[1.] This Court, therefore, cannot say^bat it eon9iders tUi 
Act to b^ a violation of the Constitution of the State. 

Is the Act a violation of the Constitution of the XJnitMl 
States-— of the clause in that Co<istitution which declares, tbttt 
^o St^te shall ^ p^tss any" ^^ law impairing the obligatu^n <if 
^^ntracts." 

, The argument for tUe defendant' in error is^ that the obar^ 
B a contract — that the law in existenp6 when a G<mtiiact id 

* 1 * * * 

made, enters mto the contifact, as a p^rt of it ; that ,wb^i dM 
charter contract was made, .there was a law in existence wbdak 
rendered the place of the principal ol&oe of the corporaticQ^ t]|i 
place of its r«(lence, and another law, i. e. th^ State C0imA»> 
tution, in existence, which exempted the corporation from ^uit 
fai every county, but t^e county in which w€i8 the corper«ti(»y 
principal office ; that therefore, it was a p^rt of the diarter-eaft* 
^ract^ that jbhe corporation should be sued in. no c^er cMntjf 
than that in which was its principal office : but that ^is SUt^ 
ute declares the corporation to be su^ect to be sue4 in cectait - 
other counties, and that therefore it impairs th^ oblij^tioa cif 
the said contract. 

What has, been said on the other branch of the case, ukems 
that we consider this argument no|; to be goodL The propcii^ 
*tipn, that the law in existence at the time when 9. . contract is 
made, enters into the contract as part of the contract, may, 9^, 
4i general proposition, be admitted. But in the first place, the 
law ^hich, in this argument, it is insisted, entered into ,the* 
contract, if it be a contract, is not, in the opinion of this Court, * 
weU state^. For although it ma^ be true, as the argument ^ 
assumes it .to be^ that a defendant is, by law, to be sued in tl^d 
foun^ in which he resides ; yet, it is equally true, as we hav^ 
endeavored to show, that the county in which a defendant re' 
rides, is to be wl^ich^ver one the Legislatiigre s^U say it ia te 
be. And this being so, if any law, as to residence, entered ift» 
(0 this charter-contract, jit ^VM not the law of residence in as* 
TQL xyn.-43 • . • , . 



* 



im StTBRKMB'OOTTR? OF GEOIlGIAv , . 

^ — 

ViAviA aQ4'Redding vs. l*he Cent R. R. ft^B'kg Co. * 

%M^ee at the timiQ of the making of tKecfaarter-conUact, ab- 
sohitely, bat that law. conditionally — that law, on condition 
Ikat tbe Legislature Bhonld net see fit to change it 

And jn t^^ qepond place, even if the law were well statedi' 
Mty it happens to be such law as constitutes an excep'tion to 
llie general proposition, l^at the l^w enters into contracts and 
makes a part of them. T^ law is law which concerns not 
tke right, but the remedy. A siiit is a remedy, and' vetnie is 
lot aaiAoideiit ef a suit. 

The la#f of the venue of a suix^ is moret intimately related tp 
remedy, than is the law of limitations or the l^w of. registry^ 
iftd laws of limitation and of registry have .ever beea held to 
)» laws wlach solely concern remedy; and so, to b&.laws 
^ribieh do BCi enter iAto an4 become a part of contracts.. 

If die h^ of venu^ becomes, a part 6f a contract, then S9 
^ho must the l^w organising th6. Judicial office, the' law negu* 
Itttitiig pleading, aj^earance, evidence. Jury triaL 

T^ Court. was orgai^ized {^ier the grant of the* chatty ^ 
i^ corporation was m^de. What jurisdiction, theref^^xe, has 
il'ov^r this case, if the law that entered into the charter was, 
ftftt only Courts in existence at the time when the charter was 
jfftirted, werie to have jurisdiction over the. corporation. . 

[2.] This Btatiite, i& the opinion q{ this Court, does not- ^ 
i^te the Conetitution pf the United States; 

tt seemed to' be assrfmed'in the' argument of th^ ConnseMdr 
the defendant, that this Statute imposed hovel, if liot oppresr 
,sive ' terms of defence on the rail road cotporations of* Ae 
. Stajte. 

r wijl say a word as to thia 

The principle of this Statute id, that ih ceiftain suits agidnst 
^e rail roads, t^e venue of the suit shall be the ventie of &e 

• This principle is certaibly nori a novel one. . It is the prin- 
fiple ef the Common Law. It is a principk sanctioned and 
affirmed by a' Statute as old as the time oC Richard H. It is 
a principle which lies at the foundation of the doctrine of ve- 



teACON, FEBRUARY TERM, 1865. ^ 88» 

Darid and Redding m. The Cent. R. B. ^ B^kg Co. 

I I ] I I III I I 1 ■ I I ■■ 

Hue, as praetised in England up to this day. Wke princifile 
i«sts on the maxim, ^hat t;tctnt vteincrum facta pinufKunhm 
9eire — a maxim that makes the suit seek the ^tnesses, rath^' 
ihan the witnesses seek the suit. 

It is tme, that in the oonrse of time> ibis prUK»p!e has, ia 
England, undergone modification. Bat the modifieation .has 
, been to the disady^tage of defendants. Certain actioas h^f^' 
Been permitted to become transitory — the meaning of wliitfkc 
is, that thej may be brought in arty' county. These ^re pef- 
aonal actions, ^nd these actions, when brought in afty oonn^ 
ijy eren if it be one ever so distant from that in which the 
icause of action originated, have to be tried where brought, un^ 
le^ the d^fe^dant shall make a special affidavit fhat he has < 
witness in the county in which the cause of action arose. If 
be makes' such an affidavit, he may, in general, have the cast 
transferred to that county — never to the county of his resiTj 
dence, except when the county of his residence may happen t# 
be that in which the cause of action arose. (Bac, Abr, "-4tf- 
tienSy Loc. and fram'') ' ' 

This is the present state of 'the law of England. And we 
hear of no complaints, on th^ part of defendants^ in England^ 
Asft the law, even in this state, is oppressive upon them. %i% 
^ lipw much mdf e oppressive a law is it than the law declared by 
the ^tatuie in question. By that law the county in which tfa« 
defendant is to be sued^ is not to b^ any eounty at the optien 
of the plaintiff — it is to be only the county in which he doM 
the 4ct for which he is sued. He is to be sued itt tliat cou^^ 
only in which his witnesses, it is to be presumed, will ' be md^t 
at his command. lie is merely put upon the footing on whieh 
the Common Law puts all defendants, and the footing on whieh 
our own Constitution' puts all defendants in criminal cases. *• . 

That a defendant is to be sued in the county in which he 
rendes — this, in truth, is the novel rule — the rule that most 
lacks the sanction of an old and- a wide experience. 

And even if the rulp established by this- Statute be hard- 
upon defendants, how very much harder'would any other rule 
ke upon- plainthb. The hile that should require tHe plaintiff 



ai(> 'iSm'SSME COURT OF GEORGIA. 

^ - - ~ ^ " — ■ 



■ * ■» 



^ Barmes vs. Stroheoker and another. 



^^— ^ 



t# hnng hift'smt in Sftvaimali, for i^e loss of a pig ot a cOw, 
mNdd, in most oases, le e<(tdTaIent to the denial of a suit at 
aii« Haintiffs IWhig at distant points on tlie rail road from- « 
lUnrantiah, could not affocd to pay the expenses that would be. 
itt^dettf to waJth a snit. 

In tte opmion of this Court, the judgment of the Court be-. 
lew, bekling this Statute t|0 be unconstitutional, ought to be ' 

VSfMBeCi* 

And this disposes pf the case agtdnst.the Central B^ Road 
Jt Sanking Company. 

And'firom that case, tnere is nothipg to disdnguish the ca^ 
against the Macon & Western Bail Road. 
* 80 the same judgment, in that case, ought algo to * be re- 
HMsed. 



^ 



i» 



|lo.* 61. — Moses Di Barnes, plaintiff in error, t;^. Edward 
L. StROHECKER and another, defendants. B. L. Stroheck- 
* er and another, plaintiffs in error, V8\ MosEg D. Barnes^ . 
^Sefbndant. 

1^.3 When tudof is appointed for the payment of meney or part of it, or do- 
ing any other aet) and the day ia to happen aft^r the 'thing which ia the coir- 
sfderation of the money, or other act, is to be performed, no action can be 
inaintaiaed* for the money or other act before the performance, for in these 

* oases the doing of the act is manifestly a condition precedent to the payment . 

« of 41m raopey. 

£2.] la jome cases of mutual dependent covenants, which an conditions pre> 
tecUnt, wliere several acts are to be performed, if the (^orenant has 'been in 
part executed, and the plaintilThas performed a part of those acta, and for • 
the residue a compensation can be gjVen in action for breach of corenant^ 
then he may raaintahi an action witbotit averring performance. 

p*,J The .Jury bei»f^ onl ifl charge of a case, tlje Court adjourned, giving 
^ ihcra permission, in, the. hearing af.Counse}, who made no ot^ectlon, whetf 
«,Uity had agreed apon t)&air verdict, to diapyse^ and i:i^|4cn*tbat rerdiKiiJa 



« 



MACON, FEBRUARY TERM, 1855. . 841 



Barnes v». Strofaecker and anotber. 

• t 

the morning. tbeJary agreed upon a rtrdtet that bight, as follows :- 

" W6, the Jury, find for the plaintiff. " On the next morning, when they had' 

assembled, the Court permitted them to amend the yerdict according^ to 

the statement of the foreman ; when a finding for the plaintiff to the fUU 

amount of his claim Was inserted : Beld^ that this was regular and proper ; 

Ihat tbe intendti^ent of the ror^ct, as. first agreed upon, was a gener4^ 

inding; that is, a finding for the whole amount of plaintiff^s claim, and that 

* the amendment was nothii^ morjstban expressing this specifically. 

* * * 

I>eb% in Bibb Sop^r Cotirt. Tried before Jtidg€n?0WBRS, 
KovembdrTerm, 1^54. 

TIus was an acUbb- brought by E. L. Strobeckerand Robert 
F. Baldwin, executor of Joseph A. White, against Moses D. 
Barnes, for th^ rent of a house in Macon called the ^^Winn 
Hottse." The plea of defendant was the g^oieriM issue and 
total "and patUiil failure of consideration in thiis: that p)ainti9sy 
Iqf their contract, were boynd to put certain rej^airs oq ths^ 
Bou'^ by the Ist of October^ 1852, when the rent was^to com- 
mence ; that they did*not make the repairs; and that, conse- 
quontiy, ,defendant-could not occapy ^e hpuse. Th^ following 
t^^tunofiy was introduced by the plaintifs.' 

SoMth TerrHl testified, that abotitithe 1st of October, 1862^ 
cMEjpnclant, who was then living in a house rent^ from witness, 
lP9(^]ie8ted permission to reyiain in it a few days longer, stating 
ihftt he had rented the Winn House from the 1st of October, • 
hvt that ^t( was to have some repairs. Witness assented,* and 
defendant did remain mitil the9la of October, wben^he moved 
into the Wirni JSouse, where he remained until the 12th of Oc- 
tober, wh^n he left it. In the same conversation, defendant 
oltsred to exchange the Winn House for witness^ house, which* 
witness decBaed. ^ 

Dr. Lightfoot testified, that he 8aw defendant dilring th^ 
lime lie (defenadant) was living in the Winn House, and that 
kfi offered to 6ub*)et' the house to witness ; defepdant compkin- 
ed*. that the house was oui: of repair, and witness heard wo]4[- 

91 tbe^at work in Ike house. 

9#er*A«MM. laatilfcsd, Umik^ bad bM» employed by tie 






• 342: SUPREME COURT OF GEORGIA, 

« Barnes v«. Stroheckei: and anoiher. 

* • • • ■ . J 

plaintiffs prior to the Ist of October, to repair the hoi]^e, ana 
went there for that purpose Vith other workmen, hat that the 
woman then in possession refused t6 let thwn ent^r the.house^ 
and set ^ogs on thetn and drove them away. 

For the defence, B. F. Griffin, testified that atkmt the lai6 
of October, 1852, he had rented thfe Winn House, under an 
agreement with bo.th parties, and was to pay the rent to whoever 
lost this case; tjiat the house and lot needed much repairing, 
and that Wtrite, the testator of one of the plaintiffs,' told hini 
that they had agreed with defendant ta put certain repairs on 
it, at the time he agreed to rent it ; the repairs ^irere then not 
all done/ Witness stated that he htid^heard that defendant 
left the house because his wife could not bear the smell of paint: 

The evidence being closed, the Counsel fpr defendant re^ 
^uest^ the Court to charge, that if they believed that whei^ 
the contract of rent was niade, that the plaintiffs agreed to 
give possession by the 1st cff October, an3 to make the repaint 
»by tjiat time, that these were conditidris precedent, and if not 
coiiiptied with, the plaiBtifis cannot recover. Defendant al^o. 
^requested the Court to xjhai^e, that if nothing wa^ s^id as to 
the time when the repairs' were to be made, that Uie law ini* 
« ' {(lied that^ey were to be made within a reasonable time*; and 
if they were not jdone by the Ist of October or within a reasi^ 
able time thereafter, that the defendant had a\ right to aban^ . 
don the contract. ' •* • 

The Court changed as requested on the first pointy but refifr* 
- sed to charge as reque3ted on the second. { • * * 

The plaint^ 's Counsel l-^qUested the Ccntrt^to'cfaarge, ihai 
l^e •eontraot^ for rent and for repairs were independent agre^ 
menta, and that the furnishing the repairs, especially tf il^ 
time was SteA for it, was not a condition preoedtot to plain- 
tiff's right of action-^this charge the Court mf^iaed to gire; 
but bharged ^he Jory according^ to the first point requested Vf 
tile defendant ; and also, that if they believed, that by g«tng 
islo tfa^ house the- defendant had waited fai^ right to libve lllil 
repairs done as a condition precefdent, tifat they rtcouMfikKMbr 
titej^ifidip. Tot]we.^rgta.MKlJtflMbjO«tlUi^ 



l^ACOK, FSBRUART T&RH, 1855! 343 

Barnes va. Strohecker and another. 

B assigned on different points by both, parties. The Jury 
fonnd a verdict, during the night, as follows: "We, the Jury, 
find for the plaintiff,'* and the Jury dispersed. This was by 
leave of the Court, previously given. 

On next morning the Jury returned the verdict into Court, 
when the Court permitted tbem to amend th^ verdict, by sta- 
ting the amount which they found for plaintiff; and this decis- 
ion is assigned as error. 

The defendant moved for a new trial, on the ground of 
QtrcNT in the Court, in its charge, on the ground' that the ver- 
dict was contrary to law and the charge of the Cpurt, and 
contrary to the decided preponderance of the evideni^e ; and 
also on the grotmd of newly discovered testimony. 

In support of this last ground, he read the affidavits of Al- 
fred Griffin and 0. P. Fitzgerald, as to the condition of the 
house and lot in December, 1852, shewing that ^e repairs in 
qmestion had n6t then been made ; and the defendant swor^ « 
that this evidence had come to hb knowledge since the triaL' 
' The motion for a new trial was over-ruled by the Court, and 
this is assigned as error .by the defendants ; and both piirties 
bkve sued/)ut writs of error on the respective pointy above sta- 
ted. 

Lanier & Anderson, for Barnes. 

'EuTHERFORD, for Strohocker. 

. By the Courk — Starnes, J. delivering the opinion. * 

* This was an agreement by Moses D. Barnes with the e;[ec-' 
Utors of Joseph" A. White, by which the former contracted with 
like latter, sometime previoudy to the Ist October, 18$2, \m 
f^nt from them a house and lot in the city of Maoou, for one 
yaar jErom that date, if the said exeotitbrs would put certain re- 
pairs upon the premises ; n6 time being specified by which ^ 
repairs were to be finished. 

" [1.]' The reasonable bonstructioa to be placed upon suoh a 
ttenawftioti Is, th&t the contemplated repairs were 'to be t>lace4 



» 
t 






m *SDFBEMB QOURT Of- ^BCttGU- 

Barnes va. Strohecker and another. 



iipoH- -tiik^ prconises before the tenant was to *en^r,.or witUn » 
reasonable time thereafter. It is to be presumed that a tenant 
Ihus contracting, stipolates (bt repairs of which l^e shall havit 
the benefit during the whole term foi^ wbioh he pays, aud that 
as a conseqiience, he re({uires them to be finished by the com- 
mencement of that term,* or within 4 reasdnable period ifaereaf- * 
ter ; and of course, as a concfition precedent to the payment of 
the rent. 

If this were the contract^ no action can be inaint^ed against 
the tenant in4hts case, for that rent, unless this condition was 
performed ; proytded, the eiecu£ofs were not released from the 
i^eement by any act of the tenant. * 

Such is the language of tlie elementary SusiOj and of the ca- 
ses cited by the Counsel for , the executors, 'in these cases. *Th3 
true ride beiii^ succinctly contained in the caso of T^horpe of. 
Thorpcj (I Salki 171,) atf follows : " WKen'a day is appoiiited 
^ for t^he payment' of ^oney or pa^t of it, or dding any other act, 
Itpd Ihe day is to happen after the thing wbich is the consider* 
atipn' of Uie money, or other act is to be p^rlbrmed, iio action 
can bepiaintained for die money or oUier act befbre the per- 
formance ; for in these cases, the doing of the act is manife^jr 
a condition precedent to the payment (rf the money.'* . (12^ 
4f(wi. 462. Dyer, 16. 1 Xord -Bay. 665.) ' 

It has been urged before iis that these coyenanfe' were, in 
l^e beginning, independent of each other. 

We cannot conceive how such an agreement oan be regarded 
in this light. The effect of such a contract, a? ^e haye seeq, i% 
that the tenant agrees to rent the preniises fc^ one year ft^ 
fk giyen day, and to pay a specified . sum^ if tbe landlord wOl 
put certaih repairs upon them by the commencement o^ tSe 
term, or within a reasonable period tbereaftei^. ^e laocHbri 
ijndertakes to do thijsf^ and the contract is ma4^. Can ^Aeiil* 
coyexMtnts, ex vi termini^ and in the yery nattu^e of thjngS| ^ 
^(ught else but dependent ? ^ 

[2.] In some cases, howeyer, ^f mutuj|i d^eodent coVenaB|p» 

^^ch are conditions prece^dent, where seye^l acts ttre to Be 

|erf$)rmed) if the coy^nant has been in piurt execute^, ma^ ^ 



MACON, FEBRUARY TERM,. 1855. UH 

* Barnes ««. Strobecker and another. * 

plaintiff has performed a part of those acts, and for the red- 
dne a compensation can he given in action for Euch hreach of 
covenant, then he may maintain an action without averring 
performance.* Boone vs. JSyre, (1 IT. Black. 278.) 

4 

But thesie are cases in which the mutual covenants go only 
to a part of the consideration ; and it is reasonahle, therefore, 
diat the party should not be held to a strict compliance as a 
condition precedent. In the case last cited, for exan^ple, the 
plaintiff, for a certain consideration, conveyed to the defendant 
the- equity of redemption in a plantation, together with the stock 
of negroes upon it, in. the West Indies, and '' covenanted that 
he had good title to the plantation, was lawfully possessed of 
the negroes, and that defendant should tjiuetly enjoy." The 
hreach assigned, was non-payment of consideration, and the* 
plea £led was, that plaintiff had not a good title to all the ne- 
groeSy and so could not convey. 

It will be observed, that the breach goes to a portion of the 
negroes only — a part of the consideration. But as it appeared 
that the plaintiff had conveyed the equity of redemption to the* 
defendant, who had goiie intp the enjoyment, of the same, and 
thus the covenant was, in part, executed, it was thought* to ba 
*^ unreasonable that the defendant should keep the plantation, 
and yet refuse payment, because the plaintiff had not « good 
title to all the negroes." And hence, Lord Mansfield ^diA^^ 
** Where mutual covenants go only to a part of the considera- 
tion, the defendant shall not plead it as a condition precedent. 
If this plea were to be allowed, any one negro not being th^ 
property of the pjaintlff, would be a bar to the action." See 
ilso notes to Pordage vs. Cole^ (1 Saund. R. 820, c.) ' 

We cantiot do better than to take the case of ffill vs. Bish* 
ojfy (2 Ala. 320,) which ^as also cited by the Counsel for the 
jlaiotiffs, a^ an ilhistration of the true drstinction here. In 
that ca^e, it was held, that " where the defendant covenants to 
pay a certain Mjpulated rent for certain premises, and is let into 
ypes^^ion^ and; continues to enjoy it until the end of his tero^ 
J^ is no defence to an action of covenant, fliat the phiintiff had 
*• voL.^xn-44 



.» 



« 






846 SUPREME COURT OF 'GEORGIA. 



^ik^ 



, . . 

Barnes v«. Stroheokec and another. 



omitted to make certain improTem^nts and repairs to the leased 
premises.*' In that case^ Judge Q-oldthwait says, *'*' the con- 
tract of lease was executed, and it would seem absurd to con- 
clude that the right to reoeive the stipulated rent could be Tost 
'by the omission of the plaintiff to insert a pane of glass,, or to 
erect a corji-crib.'" - 

Here, again, it will be remarked, the decision is pat upon 
the principle, that .the contract had' been in part performed, 
the eonsideratiou in part enjoyed bjrthe tenant, and the coye- 
nanl, therefore, so far as it was unperformed^ (and it was on 
this he was relying) went .only to a part of the colifiideration; 
hence, it' was held just that he should be thrown upon his acticm 

* for damages, and hot be allowed to plead that condition which 
' had been in part perf6rmed^ as a condition precedent. 

The difference, in principle, between this and t&e case hef<H« 

;as, will be readily seen. The consideration her^ has not been^ 

in part, enjoyed by the tenant. His moving into the hqose 

and remaining there three or four days, the repairs not having 

been finished, and leaving, as might reasonably be inferred, 

' .because they bad not been finished, was not an enjoyment' of 

' any part of the consideration, in the eye of the law. Jt was, 

.X<a{her, j&videnoeof the total failure of the. consideration -for 

whichTie had contracted to pay, viz : the 6eCapancy) for a year, <^f 

•.the premises, in a specified state of repaii;. And therefore,- it 

• cannot be said, now, that the covenant on which he is relying * 

for his* protection, goes only to a portion of the- conaiderationy, 

he having enjoyed the consideration in part. But it falls wi^- 

ib'the category of mutuah dependent covenants, going »to,.ibe 

whole .consideration. And in such cases, they may be pleaded^ 

jte ponditions precedent. • • / . 

The principle i8^n6t, as the iogeiEitous .pouhsel for .tho^exeou- 

* tors argued, that if , there were a part performaQce; that i^ 
something done *on the part of the plaintiffs, Tvhich^had pot 
been efnjoyed by the tenant, j^ba.tthen the covenant oonld iM ■ 
%e pleaded ^ a caiidition pr^p^dent; but it is;tha^<Ae.<i|/<ii^ 
9Vt "mud kdve enjoyed a part of the cor^iiderstion^; m wh^ 

», tbe covenant goes only tp a part of tfu cofmderatum^ 

9 

« 
« \ 



MACONi FEBRUARY TERM, 1855. .347 

BarMs vi, Strohecker and another. 



{Comyn'a Land ^ T. 528. Carnpbell v».- Jonety & D. ^ Ik 

It was urged, that the covenants in this case, if dependent ' 
at first, and if the repairs were to be made by the executors 
before the t^mmencement of the tenancy, ^ere made independ* 
«nt ; and consequently, the execution of th^ fepairs, ^ a con- 
ation precedent, dispensed with by the acts of the tenant, (in 
taking possession on the 9tJi of* October,) which amount to a 
waiver of the same. 

We do not so regard the case made by the &cts. We can- 
not see how s)ich circumstances can be regarded as evidence 
that the tenant waived the repairs or acquiesced ^n their not 
being completed. On the contrary, it seems directly inferable^ 
&om the testimony, that he left the house because the* repaird 
were not made. The facts, therefore, can^how nothing *more 
than that the tenant^ by thus going into the house, may have 
waived the execution of these repairs before the Ist of Octo- 
ber, as a condition precedent tQ his taking possession at 'that ' 
time ; , but they do not and cannot show, that he had waived 
their beibg completed in a reasonable time thereafter. 

Fqr the above reasons, we think the Court should have given tl^s 
whojle of^the charge,^as requested by the Cpunsel for the do- 
^ndant, with the modification, that the Jury might look tOi'tb(& 
removal .of the "defendant into the house, and the a3seqiated 
acts ; and if they believed that he thereby waived the repa^ 
as a condition precedeiftt ta his taking possession on the Jtst * dC^ 
October, they might so Ad; but that in such case the repairs 
were still 4o be done in a reasonable time thereafter ; and .if 
ihey had not been done, the defendant had the right to aban- 
•doi^ the contract, and the plaintiff could not recover. 

* As the chiirge was given, we think that' 0ie minds of the 
Jury were rather directed to the conclusion, that they migkd 
ptdperly consider and determine, from the facts, whether w 
not the defendant had not aUogether waived the repairs, l^V 
IpSog into and leaving the h6use as he.did ; and if they foifl^l 
^Euto tie 0b, ikej ehotdd find for the jplaintiib. There wa^ 






I • 



948 SUPREME COURT OF GEORGIA. • 

, . ; Freeman k Benson vt. Carbart Brothers k Co. 
■ ■ I »• - 

nothing, in the evidence, which could authorize this view of the 
case. ' ' ' . 

[3.] The Court was right in pei'mitting'the verdict to be 
amended. The Jury being out in charge of* the .case when 
the Court' adjourned at evening, wei^ permitted, by the Court, 
to dispecse when they had agi:eed lipon their verdict ; that per-^ 
mission being given in presepce of the Counsel, who did 
not object The Jury, agreed upon their verdict that night, as 
fMbws: ".We, the Jury, find' for the plaintiff." On the next 
morning, ^hen they had assembled, the Cdurt, finding the ver- 
dict thus informal, directed the same to be amended- according 
to .the statement of the foreman, in the presence of the Jury, 
as to the amount which they mtended to find. 
' ' Now< the fair legal intendment of the verdict, as first ^reei 
upon, (it being a general finding for the plaintiff,) was a find- 
ing of the whole amount claini^ by him. It appears,' there=- 
fore^ to have been simply an Omission on the pi^rt of the Jury, 
in nbt at first specifying the full amountt claimed^ And* this 
omission, was what the Court permitted to be supplied. If 
there had been a material change or alteration . in the verdict 
allowed, the case woufd have been- different, and might have 
created some difficully. ' ^ 

^8 the case ^oes back, it if) unnecessary for us to notice the 
ground gresentc^d in the motion for a new trial, on account of 
newly discovered evidence. 
• .9 Judgment reversed. 



Ho. 62.— Frebman k Benson, plaintiff^ in error, vs. Carh4ET 
• Brothers & Co. defendants. 



• 



f I.] Onfpftrttter may acknowledge sertfce of n Vrit, In the name tf lUb ]tarU 

neralwi; if be dMa 4* in ih^ pres^nse of the tMr paH^er, aa<^wftb IU$ en 

* • • * • 



sent. m * * * 






MACON, FBBKUABY TERM, 1855. 



Fraemui t Bcnsan M. Cnibart Brothera k Co. 



[3.] Tbe CoBitable'a relam on n Jostict's Coart tTsmnt, nay be ameDiled 
after jadgmeuL 

[3.] The Act of 1B53, enlargjag JuRtic«'B Coart jaiieiliction in tbe City of, 
UacoD, extends tbe eaJar^djumdicUoa to the case of joint prom[sor8, some 
of whom reside in Uoc on and some in disUicta outside of Hncon. 

Certiorari, id Bibb Superior Court. Decision hj Judge 
* Lowers. 

Carbart Bros, t Co: sued Freeman &,Benaon, in the Jnstio 
ce's Court of the City of Macon, on certain notes of Forty -five 
Dollars each, in different cases. Service of tbe ■sammonses 
vas acknowledged by Freeman, signing tbe firm name of Free- 
man &. Benson. Benson resided out of tbe City District, ifi 
Vinevillc. ' Judgment was given in the cases, and fi. fas. 18- 
&ned aifd levied, when defendants came into Court and move^ 
to set aside tbejudgmonta, on the ground of the' want of ser- 
vice, and on the furtfeer ground, that Benson resided out of 
the district, and that the Court had assumed jurisdiction for 
snms over thirty dollars; and tliat, especially, tbey had no ju- 
risdiction for that amount, over one residing in a dbtrict where 
the Justice's Cour,l has only jurisdiotion for thirty dollars. 
■ On the hearing of this rule, the Court permitted tbe Con- 
itahlq to amend his return on the summonses, by stating, that 
i^en Freeman wrote the acknowledgment of service, Bensoil 
was present and sanctioned it. The Court refused the motion 
to set aside the judgments, and ti oase by 

certiorari to the Superio? Court, the ac- 

tion of the Justice's Court ; and r is as- 



Lanieb & Anderson, for plaintiff in error. 

Stubb3 &; Hill, for defendant in error. 

By the Coifri. — ^Bennino, J. delivering tbe opinion. 

['!.]■ A deed execut^in a partneJhhip name, by one of t^ ' 



SSO. SDTBffifE COCBT OF OEOBGIA. 

Frecmaa k B«D8on w. CarbMt Brothen Jc Co. ' *"* 

partners, in the presence of tbe other and with his coDseift, 
binda the partnership. (4 Dvm. ^ £. 313. .Sum vt. SurHy 
.3 Vet.) 

IF a deed so executed is good against the partnersbip^ 
much more is an acknowledgment of the>serTice of a ^tgood 
against a partnership, when the acknowledgment is made by 
one, of the partners, in the presence of the. other and with his 
consent, for such an acknowledgment need not be under aeal. 

This being so, the acknowledgment of setrice by Freeman,* 
in the name of Freeman k Benson, bound Freeman & Benpon, 
if Benson was present «t'tbe acknowledgment, and if he aauc- 
'tioned the acknowledgment. 

And that Benson waS so present, sanctioniDg the acknowl- ' 
edgment,'the Constable shows- by the amendment which. he 
mokes to hia return. . ■ , . . 

'- [2.] This amendment, though mad^ after judgment, wfte not 
made too late. Ingram ^Little, (10 (7«.-.B.)' * • 

The effect of the Act of 1852, was merely to make the 'Jus- 
tice's Courts of tbe City of Macon Iwrger than they had been — 
to' make that juriBdictton which' had been BufficieQt to inoltKle 
thirty dollar cases, sufficient to inolndeS&y dollar cases. 

[3l] If, therefwe, before the passage of tbe Act, those Courts 
bad jurisdictioD of thirty dollar ciises against joint promtewfy 
some of whom resided in.MaooQ and some in' disQicta oatade 
of Macon, after the passage of the Act, those. Coorta* had jn- 
' mdiclj agi^inst such promisors. 

* The below, therefore, ought to he af- 

firmed. 



MACON, FEBBUART TERM, 1855. ' SSi 

* * ' 

" CoTTjt adm'r, ¥9, Tompkiiu, 



I . 



• No. 63. — ^Robert Cobbt, adm'r, &c. plaintiff in ^rror, V9. 

* , NiOHOLAS ToMPKmSy defendant ib error. 

# 

4 

[1.] It is not error in the Co^to refuse to repeat a ehargf which it has al- 
nadjgiren. 

• . * . . 

Ixi Equitji in Heard Snperioi^ Court. Tried before Judge 
. 0. Warneb, November Term, 1854. 

* t 

* • 

. Ntcholaa Tompkins filed his bill against Robert Corrj, as 
the administrator of William J, Germany, alleging, that in 
1889 he sold ^d conveyed to Germany certain lands, and 

• mills for ^16,000, taking the notes.of Genifiany and a mort- 
gage on the premises ; that abont ten months thereafter, . at 

• the urgent solicitation of Germany, he re-purchased the pro- 
perty at' ^11,000, which was to be .credited on Germany's 
•notes; and to perfect titles, the mortgage w^ to be foreclose^ 

and a sale made ; .ths^t complainant went immediately into 

* *. possession and has remained ever sinccf ; . t];iat in 1842, Get- 

nmny died, and Corry .was, appointed administrator on his es- 
tate ; that Corry, as administrator, has commen^ced sttits for 
the .land, which are, still pending; that the proceedii^g to 
foree^ose the mortgage is also pending. The bill prayed an 

• udjunction and a specific performance. 

. The answer denied, all knowledge of the re-sale, and hMd 
die complainant to striit proof ; expressed the belief of the' ad- 
ministrator, that Germany had made large payments .on the 
notes, amounting to at least $6,000, and that when proper 
credits were given, there would not appear to.be -as much ses 
$11,000 still due to Tompkins; and prayed, that if there wds 
a specific performance, there also might b$ an ficcounting,and 
a decree for ^empkias' to pay to him any overplus 'Of the $11,- 
, 000, after paying ^e balance due on the notes. 

t^ the trial, evidence w») introduced by compHunant^ t6 
ffte^e the re-sale as charged. There was also the evidence .ff 
'ene^ilMas fer defbiidant, ik^it ^ his firsi vBBAdTtkKpSlmg frMi 



* • 



^ 



352 • BUPREME. COURT OF GEORGIA. 



GonT-, adrn'r, vt. Tompking. 



the parties was, that Germany paid Tompkins ^8,000 ialands^ 
which property he afterwards saw in the possession and control 
of Tompkins." Counsel of defendant requested the Court ta 
charge the Jury, ''that they must look into the payments be- 
tween the parties ; and if they found that Tompkins was over- 
paid, they must decree the amount over-paid back to defend- 
ant, before they can give cotoplainant a d^ci^ee for specific per- 
formance.'' Which charge the Court refused to give, apd this 
is assigned as erroK. . ^ 

. Mqrqan, for plaintiff in error. 

• ■ 

* • 

B. H. Hill, for defendant in errpr. 

Bi/ the Court. — Lumpkin, J. delivering the opinion. 

« 

In Octobei*, 1837, Ificholas Tompkins sold to Wnw J. Ger- 
many a tract of land, for the sum of $16,000; and for th^ 
purohase money he took Germany's notes, Sue as follows :— 
P,000 due January 1, 1841; 38,000,' due January 1, .1842 ^ . 
$3,000, due January 1, 1843, and $4,000, due January!, 
1844, besides $3,000, which was paid in cash. To secure the. 
notes, he took a mortgage on the premises. In 1840, Ger- 
many re-sold the land to Tonipkins, on the following tem^ as 
stated by a witness, who took it down in writing at the time: 
^^ Tompkins was to take the land back at $11,000, ii> Germa- 
ny's notes; and as Germany was inv<^ved, and these execu- 
tion^ ajgainst him, Tompkins was not to take a deed from'Ger- 

*inai;^y, lest the land should be made subject to the ex'eculions; 

' but Tompkins was to foreclose the mortgage and have the land 
ao}d and bid it in, let it bring' what it might. Germany was to 
jiiaye credit on tJie mortgage for $11,000, in the 'notes which 
Tompkins held on him, for the original purchase' moneys that 
Tompkins was owing Germ^ny^ on sundry aldcounts, abovt ^ 
^1800, whi<;h was agreed- to be .placed as a oredit on the Mast 

• 90te due, which thej. called the large note, &r $4^000^ ^ 
Mxi^e tl^y^ wanted the mortgage; ^recl&fli;^ <Ai' t^a ]B#tes vhtfl^ 



• • • 






«• 



• yU^tff^, ^tdBBUARt' TERM, 18^. ' .9B$ 

• " ' : •: r- , 

. Corry, adm'r, ©«. tompkifis. 

— ^_- . . ^^ r, : — - — 

fen due first, that it might be done aa Boon as poaaible ; thad 
the credit of 9II9OOO was not to be entered on the notes the% 
bnt when the mortgage was foreclosed ; . and there was to be xm 
interest charged either way.** 

Under this contract, Germany gaye- immediate possession, to 
Tompkins, of the premises. Thia was the testimony of Josiaji 
-Jacobs, the witness who in the suit, hereinafter m^t^oned, tto^ 
tified as to* t}ie^ contract. , -Subsequently, Germany died; nH 
farther steps haying Ueen taken in the matter ;, and in 1646, 
Corry, his administrator, brought his action of ejectment agunat 
•Tompkins and his tenants, to recoyer back the prpmise^. 
Tompkins filed his bill in Chancery, for injunction -of the ejeot- 
ment suitsy' and for specific performance of the contract, as tb' 
ike foreclosure of themo^gage', jbc. The bill alleged,. 6\ib-* 
stantially, the foregoing facts. 

. The answer of Corry set ug the Statute of Frauds as a de- 
fence against thje contract; and asserted, there were credits' t(^ 
which the notes were entitled. The testimony of the complain- 
.ant has be^ stated, with the exception of some corroborating 
proof as to the agreement of re-sale. * The defendai^^t offered 
no eyidence^ and the Jury decreed a specific performance fop 
tbrec^osure, upon the paymq^t, by Tompkins, to the defendtftxt, 
'of «1348 61. 

'The complainant moved for a new trial, on the ground tha^. 
the yeidict was* contrary to .and without eyidenc^; which mo- 
tion bei^g Refused, the Solicitor for the complainant excepted 
and brought up the case to this- Court 

Inhere not being a scintilla of proof to warrant the verdict, ar 
tiew trial .was awarded^ The Jury, in the face of the fads as 
testified toby Jacobs, computed the interest on the $11,00^ 
-against Tomlpkinsr, frotn the time he went into possession of the 
land, in the fall of 1840, ax^d' deducted the notes <!Uf Qennany, 
as credits i>r paypients, as they seyerally feH due,' and. setting 
off one against the other, stjruck the balance ; whereas^ in' 
VuA, acoc^dingto t^e eyidence, there shocdcl haye been d',de<« 
<5reB for Totnpkins.- V 

yOLxyn'.r-45 - • * . , 



fH ^P^REME COURT OF QBOS^UIA. . 

Corry, adm'r, vs, Tompkins.* » 
— I — ;; — ■— ^ — i — ' ; ; 

Germany was 3tilt .owing 1?.ompkins the three ^t instal- 
' meuts for the land, of $3,00aeach, making;9.9,'o6o, apd 92,200 
•0n the last or large note, as the* parties called it, viz: $4,000, 
with a eredit of $1800, makipg the whole amount of Grermanj's 
indebtedness to Tompkins, $11,200. • From this sum'.dedaet 
tiie JlljOOO owing by Tompkins tp Germany, on the re-pur- 
'cbase of th9 land, and it leaves a balance, in- favor of Tompr 
Jtins, of $200, ■ 

Coniseqaently, this Court determined to, send the case back, 
remarlpng, when it was before up, that '' on the re-hearings it 
would be competent for the defendant. to bffer^ proof pf pay-^ 
^m^nts by. his intestate, provided any. were m^de. If tUs 
i^ould be done, and the mortgage debt be found to be ot^^-paid, 
Tompkins must, discbarge the amount befor/Gshe would.be enti- 
tled to a decree for the re-conveyance of the land." 

Upon the last trial, the depositions of Wilfiam Wilson were 
taken and read to the Jury, and was the only, additional testii 
riiony which w^ not offerjed on the first trials He swore, that 
tie understood, from Germany and Tompkins, that Tompkinn* 
Bpld Germany his grist and saw-mill, together with six lots of 
land, for $16,000 ; that it was in the fall of 1^9 or.. 1840 j 
snd witnesses's first understanding trom the parties was^ that 
Germany paid' Tompkins $18,000, consisting of land, which 
property he afterwards saw in the possession or under the con- 
, 4rol of Tompkins. ' ' 

' The cause -being closed, after, argument, the Court; 'cbarged 
^the Jury,' amongst other things, that they must \fe satisfied, 
from the evidence, of the existence of the mortgage and note0 
upon which it purported to be founded, at fhe time oFthe exe- 
cution of tUe contract sought to be performed ; and theU th^ 
amotmt of indebtedness appearing upon the noteSy was unjHtU 
.{rf the tmeqf ihe(jLgreement set up, andprayedto he enforced.^ 

: ' Counsel for defendant requested the Courf to charge, that 

.be&re a decree, for specifi(r performance caidcf be rendered^ the 

Airy must Ipok jnto the payments between the' parlies, *and If 

Aey found that Germany had, ovefpa^d Tompkin8,.they, dioBt 



•* 



• 



/ •. 



* 



• • 



ilACON, FEBRUARY TERM, 1869. fl8S 



CBrtjt adm'r vs. Tompkins. 



I ■' 



decree tbe excess to Cony before tbe complainant was entitled 
to the relief which he asked." 

This request the Court ref^ised to charge, and Counsel for 
the defendant excepted. 

Why Judge Warner refused to give the charge as request* 
ed, does not appear, ^e apprehend it was for tha reason, dni 
he had ali*eadj instructed the Jtiry, in substance, t6 the 8aiii# 
effect. And in fact, the charge given wars broader thsn ttafr 
Which was requested. It was, that unless .the Jliry fovud that 
there was at least ^11,000 due and unpaid, in the Chsfomoj 
notes, at the fiine df the second contract, ncr decree of fbrvelo* 
* sure could be rendered : whereas, b/ the chaise, as ttghedy tf 
the tfurj found that the mortgflige debt was overpaid by 4k»-/ 
ehargiDg^Che* Excess, the complainant would be enOtled to It 
decree for spedfic performance. One thing is indisputoble-r* 
ihe charge, as given, covered the issue — debax^ed the dffen^ 
ant of no right — shut out no testimony. It left the -questhm 
of payment, as sworn to by the witness, WHson, fully open la 
Ae consideration of the Jtiry. And if,' after weighing ii, ih%^ 
inrj hadifound that Germany ^id not owe Tompkins 911,000^ 
v^n the m<jrtgage, a verdict for the defendant was isevitablo. 

The truth is, the Jury nnist have ccmclnded that Mt*. Wil* 
fion was mistaken. And it is n^t Grange that they did. . Att 
the proof goes, to^how, that in addition to the lots of land af 
vnascertkined value, conveyed fay Germany to To&pkin6,916y* 
^d was the '^purichase money agreed to be paM for the land. 
''That $^;000 was pafd- at the tim^, leaving a balance of $18,* 
•00 stiA due, for w^ich the four notes of (Jemiany were tukettp 
'fliat is, three for $3,000 each and one for ^,000. Woh))' 
dub bflVQ been done, if, instead of ^000, as proven by Jaeobs^ 
98,000 hlid been paid, as testified to by Wilson ? The fccts 
and figures are ii-reconcilable with this hypothesis, t6 say no^ 
ihi'ng of the unlikelihood that Tompkins should, at the time of 
*ihe re-sale, have retained the notes of Germany, wh^ th^at 
notes had been overpaid. That he should havelcept possessioia 
of these notes,' to the amount of $11,000, notwitl^sfcanding h» 
ew0<^ ^Skmtimy th&t sum, ts wtorat enough ; for ii wfts tW 



• • 



9» 



StIPKEME GOUBT OF 



tomp^ins ^. The SUMe^ 



tlmt thid riumld be done foi* the'purposes of llie fore* 
itoflore, to perfect the titles That he should have held them 
^^ridi a small balance in lus iavor, after 'setting off the $11,000^' 
due bj him, is nothing improbable. Bttt that he bhcnild have 
k^ ^SoKSOk Qip&tL for five diousand dollars more than was due, 
fnd which shoidd have been dedncted from iJie price of die 
land at tiiedate of the first- sale/ would ''require the 'Stroagefii 
||PQof to carry eoxTvietioiL to tiie Jury,' in the face' of thefacta 
before them. • • 






t . 



.«• • 



• • 



Ho. 64. — NrcHOLAS Tompkins, plaintiff. in error, vs. Thb 

Si'ATE 01^ Geokgua, defendant in error. 

-• • * • 

'[U^ If two Of more embark* la a commoa enterprise,' the acts and declarations 
,' *ef eack of Ihe t^onfederaleei ma'de or done in ^rsoimce of the preconirerted 
i^f^ment or uBdecstandiag, fktt evidence against thfi otter ; and wh?neT* 
er engugb of evidence is given in, as will conduce Xo prove a primn Jack 
ease of « oncurreni or joint action, the whole transaction should be submit- 
tftd to the Jury. 

{2.] It is comtletent to prove that a partybos assigned a Talse reason for his con- 
duA, OS tt serves tp eonvict him of the thro one* 

[3.] Where two tttaults and batteries are comnlitted An the<«ame d|j, witli<« 
ia a fthorl period of each other, it is competent lor the* Soiicitor GenexaL 
under the same indictnient, to try the defendant for either : but he cannoi 
9ubmH both to the Jury at the Same time ; especially, if no proof has been 
offered as to the aecondy excet^t^only for a limited purpose, and not to es^ 

. taUiskj' AiUy, the guilt or lanoi«nce 0f the accused.. 

£4. J. If th(* Solicitor fail to support, the one by proof, can he abandon tbatanil 
|frocac(t to try the' defendant for the other ? Quere, 



Assault and batterj, in Heard Superior Court. . Tlried be- 
fore Judge. 0. 'Warnw, November. Term, 1854.' 

^ Kiehok? ToBi]^kins wajs |>laced mpon \^ tbial C^an^.ay^ault 






rf^ «■ * ■ 



MACON; FEBRUARY tERM, 1896. • 9Sf 



» Tompkins v§. The State. 

Hi — ■ 



ted battery upon one William F. Crockett. It appeared timt 
'Slompkins and some others left Franklin one afMmoon about 
dusk, and nelur the bridge, on Tompkins' road to his- home, a 
wagon, overtook him with Crockett — ^Phillips and McDaniel 
in it. A quarrel ensned-v— (about which the evidence was very 
eontradictorj)-^rockett jumped out of the wagon ^nd ad^ 
wnped towi^ds.Tompkitis, who struck him with a stipk;^ Mo- 
Daniel then threw a rodk at Tompkins. - The matter was quir 
^ed, and they started on. Counsel for Tompkins proposed 
to - prove, that McDaniel jumped out of the w^gon to help 
Tompkins ; that one of the crowd in the wagon was seen to 
pick up Tocka and put* them in his pocket, before the wagon 
atiurted from tdwn ; and that one Foster James, a brother-in- 
^law.of Crockett, thr^w rocks at Tompkins ji^st before the* wagon 
j^vor^ook him, and that James then went up and urged on tfap 
^difficulty ; all of which waa offered to prove a conspiracy to ; 
4nob Tompkins. The Court rejected the evidence, unless no- 
*ticeofthe conspiracy was brought home to Tompkins. To 
which decision Tompkins excepted. 

-Crockett, when examined, stated that he was .a Justice of 
^e Peace .and was going, that e^eniijg, to prepare a certiorari 
l^nd for one Jaifies F. Bevis. Bevis was offered as a witness, 
to prove that Crockett saw him at the Cross Roads that evening, 
and ^aid nothing about a certiorari bond, &c. Xhe Court re- 
jected the evidence and Tompkins excepted. 

Crockett <also stated, on examination, that he had no desire 
for a' difficulty, and desired peace, it was proven that be said 
Ibe same thing after the batterer. The Court adjnitted evi-. 
dence, to show that he afterwards, on the same evening, threw 
Other rocks at Tompkins^ after the party reached the Cross 
Boads, for the sole 'purpose of disproving his professions of^ 
peace. This evidence showed another rencontre at the Cross 
Roads. The Solicitor, in his argument, relied on this second 
iten<5ont]!fe, to convict for a battery. ' Counsel for Tompkins ob- 
jected, as the evidence was admitted for a different purpose, 
Briely. The Oourf; charged the Jury, that they .might, oonsid-** 
iHr.tirid ovi4(Mice j^nd ^d him gutU^? 9P that abne. ' l^o thia 



•• 



558 • Supreme court of Georgia.. 

Tompkins V9, The State. . ' . 

charge, Tompkins, excepted. A /motion was' made for a new 
trial, on all these grounds, and also because the verdict was 
contrary to the weight of evidence. The Court refused this 
motion, and ' Tompkins excepted. On these exceptions, error 
is assigned. 

B. H. liriiL, for plaintiff in error. • • - 

. SoLv (jBN. Blakely, for defendant. 

Bff the Court. — Lumpkin, J. delivering; the opinion. 
/ ' ' ' ' ' '• ' 

[1.]] The first exception in this case, applies to a considera- 
ble portion of the exculpatory testimony relied on by To^jp^- 
kins. The Cii'cuit Judge ruled out as evidence, all the aotd 
and declarations of every other person implicated with prockett 
in thcf alleged conspiracy to inob Tompkins, unless notice 
thereof was brought hom6 to the defendant. 

The * assault and battery is not * denied. Tompkins pleads 
.tliat he was justified in striking Crockett. The^e is somet^on- 
flict of testimony as to what transpired when th^ rencon^ 
took place ; and the doubt consequently is, who was culpable 
for foircing the fight ? Now if it could have ^een shown Aat 
there' was a preconcerted plap — a' common enterprize set <m 
foot by Crockett? and his crowd, to beat Tompkins, is not the 
|)roof admissible, as calculated to reiBect light on the conduist 
of Crockett, when he ovjerfoofc Tompkins? .^ ^ 

But a portion of the proof connects itself still closer 'with t£e 
transaction. When Crockett dismounted from the Wagon, lie- 
^ Daniel, who was riding with him, jumped out also ^nd pulled 
off his coat; (ind Phillips, another one of the associates^ held 
the reins of the. horse. ..Do not these demonstrations, conned 
ed wij:h the previous purpose, inake McDaniel and Shillips pl^^ 
ties to the combat ? Were they not actually present, aiding a&d 
. a.betting ? And may we not — nay, mu9t we not, suppode th&t 
Tompkins a<$ted in the light of these surrdunding (^rcumsSt^- 
ces, indicating the p^' which beset bun ? • * •" ' * 



• • 



MACON, FEBRUARY TERM, 1«55. 359 

JTompkins v*. The State. . • 

I ' ■ ■ ■ 

We admit that the competency of the testimony depends * 
upon the fact of a concert and communication between the* 
« parties. K they embarked in a common enterprise, and they 
• acted together in pursuance of this preconcerted agreement or 
understanding, Crocked is not only answerable for the acts of 
his confederates, but their acts and declarations are admissi- 
ble, as a part of the res geatce. The whole conduct^ acts and 
declarations of the one are evidence against any one of the 
others. Crockett seeks the protection of the law for an injury 
i^cted on his personby Tompkins. If he and several others 
united to'pursue Tompkins for the purpose of Shipping him, 
and thus brought about the difficulty, the prosecutor comes 
with a poor grace to claim the vengeance of the law upon the 
head of his successful foe. The law was made to shield those 
from insult and abuse, who live in the peace of God and of the 
State, and not as an immunity to bullies and bravadoeS; 

It is not for us to decide, neither was it for the Court be; 
low, how far the connection bet^^^en Crockett and the other 
parties is proved. This could only be done by their acts and 
declarations made in the presence of Crockett and in further- 
itnce of the scheme which they had on foot. There was enough - 
Aff^red to make out such a prima facie case of concert and 
joint action as to make it proper to submit the whole to the 

The general rule is this : in cases of crime perpetrated by 
• ftveral persons, when once? the combination is established, the 
act or declsk^atipn of one accomplice in the prosecution of the 
enterprise, is considered the act of all, and is evidence 
i^inst all. (Arch. Crim^ LaWj 6th Ed. notej by Watermdrij 
pA25^'3.) 

[2.3 As to the testimony of Bevia, which was I'^ected, it 
. i^ent to show that Crockett assigned a false reason for going 
U\ the Ci^oss Roads. He pretended that *he was going ther^ 
Ip fix up a certiorari; that ]being untrue, the Jury were left to 
infer that he .thus went out of his way to seek an interview 
with Tompkins. Cromwell) tO justify the murder of his Mon- 
'j|rch, pretended that his tongue clave to the roof et his mputk 



• 



• 



• 



• 



.860 SUPREME. COURT OF GEORGIA- 

• -. . . : : 1« 

Tompkins i>«. The 8^tc.' 
. : ^^ : *l ■ 

* While praying for his safety ancL* deliverance. A girl, who 
'gives as a, reason why she is not in love, that her beau is no 

older than herself/ is already a victim to the tender passion. ^ 
So it h^s been with men and women, too, in all ages of the world. 

[3.^ The next point in this case is this :• Counsel for the defend- 
ant, by leave oCthe Coort, had propounded some questiqps as 
to what transpire4' at the Qross Roadd, but confessedly for the 
purpose of 4iscrediting , Crockett, and for none* other.. And 
the examination was. sanctioned \)y the Court, for this single 
object. The Solicitor Genera}, at the commencement of his ajr^ 
gument, announced his intention to a^ a conviction of tne ile- 
fenflant for the battery wUcb occurred at the grocery ^t the 
top pf the hill. He was asked .hy th^ Oourt if he' coidd pro- 
duce authority to authorize such a practice, and the case' of 
Wingard and Ham vs. Thd JState, (13* Ga. Rep, 396) was ci- 
ted in support Of it. . The discussion pi:oceeded. His Honor, 
in the meantime, examining the case. * Toward the .close of ^ 
(iase, the Judge held that it was competent to convicC Tomp- 
kins for the last assault. 

Did Wingard and" Ham vs. The State^ sanction this proceed- 
ing ? Two propositions were embraced in that decbion. First 
That playing and betting witb cards, at ahy one of tbe games 
designated in the 11th section of the 10th division of the Penal 
Code, will constitute an offence ; and that for every such game, 
unconnected with the other, an indictment will Ke ; yet, wben 
'all are perpetrated 4y the same person at the same time, they * 
constitute but one offence. And Secondly. That the proof* rf 
guilt was QQt confined to the day mentioned in the indictuenl^ 
but may extend to any period previous to the fining (^ t6e 
bill and within the statutory /limit for prosecuting theoffdhoe. 

[4.] Were these batteries one in law, and could they W 9p 
treated ? no more so than if one of them had been made ia tito 
morning and tiie other in the eveiiing. And vgpon tike tiisis . 
ground,' the State having elected to try the defendant for' the 
first .assault, oould not convict hitn of another; fEtid ^lat, fo^ 
not only ^thout abandoning the ^rst, but what is iidhii 
mcfrc objectionable, \fitfaeut the defendants having* beeil 




#• 



XACOIV; FEBRUARY TEBM, IBK. f»i 

Wood and another M. McQaire'8 GhttdEfio. .' 

* * 

fi3fr the 8e6oild. Had the plpsoner been notified, before the 
proof closed, that the first assault waa abandoned, and that the* 
* jKOJf m^vlA be called upon to gli^ a ■ verdict for the -eecond,' 
* adier testimony might and, probably would hare been addueedT 
t^that. Hofr stands, the matter then ? ^^be Jury may have 
ftongbt Tompl^ins not guilty in the first case, the only ofenctf 
S&t which he was triedj and convicted him pf another, for vrhich 
be was not tried! ' ' 

This jddgmen^ we are olear^ 'cannet be sustained. 

As ^ new tri^I will be awarded, w^ forbear to express an^ 
^n»n upon the evidence/ - * 



• • * 



JJo, 65.«— Wilms Wood and another, plaintiffs in 'error, ff$. 
Min.Y McGuiiib'& Children, defendants. 

. \i^ Tli^.Tefdictjnust coin{>reheDd the whole issue or issues submttted to 

• tbe Jury. 

(2.j EreQr jeasooable construction is to be adopted in fkror'of .the verdict. 

[3.1 VThere the Jurj express their meaning in an infortnat mfuiner ; jet, if 
the pOint'in issue can be corichided horn tlie finding of th^ Jurj, the Court 

• will ^cfrk th4 f'erdiet into form and mklce it serve, 

^4 'B^ormal Verdicts nuv^-^e amended, but the Court has no power to sofH' 
*^ substantial. omissions. • ' , 

[5.] *In im action of ^Jeclmenti und^r Jone$* Formg^ the verdict ^gfat to fiiiA 
the issue eitl^er fio;* 9t against all the plaintiffs. 

I * ■ 

:'Sjectlpent, 'i6 Bibb Superior Courts Decision bj Jndgto 

(This was ai> ac^On for knd, brought by, Lovick N. McGuire^ 
ttmgp iSf McDonald, in right of hi^ wif^, Ora F. McDonald^ 

• ■ • Ji^ea. xvd-fJ 



• •• 





* 



•62 -SUPBEMB tJOtnElT OF GEORGIA: 



» • 



*«W%od^d adother w, McGuire's Cbildren. 



Mar J Blizabeth MoGnire, Baniel J. McGuire and Jemima^ 
K. HcGoire, the cHildren of Milly McGoire, agamst Willtf 
Wood and William Johnston. 

The Jury returned the follomng verdict: "We, the Jury, 
find in favoi; of the plaintiffs, "Mary Elizabeth McGuire, Geo. 
M. McDonald, in right of his wife, 6ra F. McDonald, Jemima 
K. McGuire, Daniel J.. McGuire, to the'undivided four fifths 
of the premises in dispute, and two hundred "and fifty dollar^/ 
with, costs of suit. . - . . 

The defendants moved to set aside this verdict, on ih^ 
'ground, that it did not decide the issae as to one of the plain- 
tiffs, to- wit: 'Lovick 'ST. McGuire, which motion, on argument, 
wsipover-ruled by the G({urt; and this decision is assigned as* 
error. . • , . * . * 



« 

STUfiBS & Hill, for plaintiffs in error. 



« * 



Lanier*' & Anderson ; Poe, for defendants jn error., . 

t 

< ■ 

* 

By the Court.'-rJjVMFKis^ J. delivering thd opiniota. • 



*» 



Lovick McGnire was a party plajintiff in the suit' It wa^ 
admitted, and the proof showed .that he had conveyed his in- 
terest to the de&udants* Tha Court charged "die Joij, Aftt 
they were bound 'to find against htm. They w^e. cer^akdy * 
haund to find, either for or against 'h\m,^ ' A^^ failing to jd» 
either, the verdict and judgment • are imperfec^t, and aho^^ 
liave been va(ai>ted. 

' [1.] The general rule undoubtedly is, that the verdict m^st 
pompnehend the whole issue or issues dubmitt^dto theU^ury in^ 
tke particular cause; otherwise, the judgment founded OB';it 
should be reyerSed. (1 Arch. Pr. .100. PattersoTi w. SPie 
United States. 2 Wheat. 226/ J^Hler vs. ^ret^, 1 Li. 
;ftAym. 824.) . , . . ' . ^ 

In JUdlmes ts. Wood, (6 Mass* R, 1,) the Snpren^^Conirt'rf , 
Massachusetts held, that if the issue Joined be i^iiterial^ .^ 



•MACOBT, FEBKUART TERM, 1855. . 868 



Wood and another w. McGaire's Ghildren. 



1* 



Terdict onght to find the issue either for or against the* party 
tenjicriBg it 

. [2.] -Indeed, the Circuit Judge recognized the rule, but was 
of the ojHnion, that the point in issue could be concluded from 
the finding of the. Jury in this case; that the Court could 
work the verdict into form and make it serve. If this^ could 
be dpne the verdict should stand ; and every reasonable con- 
^traction should be adopt^ for this purpose. (2 Burrow^ 698« 
MJiArw. 84.. 1 ^ot,.321.) 

[8.] In Kerr vs. HartBhorne, {^Yeates^ 298,) Chief Justice 
Tilghman, very prpperly limits the authority of the Court to 
cases where the Jury have expressed their meaning in an in- 
formal manner^ and says the Court has n^ power to supply 
substantial omissions. 

'* C^-1 -^^^ ^® diflSculty here is, not -that the Jury have ex- 
r pressed their meaning id an informal mamrer, but they have 
failed to express any opinion at all as* to one of the parties. 
Tme, they have not found far Lovick McGuire ; but' are we 
aidjhorized to say, that they intended to find against him ? 
HtfW shall the verdict be amended then? For this plaintiff or 
for the defendants, as to him? The verdict gives no response 
to diis question; and the Cdurt is not at liberty to answer for 
the Jury. Petrie v$. Bannay^ 8 D.'^ Et^5Q^ and Richard' 
$<m V8. MeUishj 8 Bingham, 384, are authorities for amending 
informal verdicts. But here there is notjhing ^hpreby an 
amendment* can be made. ' * 

. £5:] Under Jones' Forms, under which this complaint was 
filed, it may become important that even in ejectments the ver-' 
diet and judgment should be commensurate with the issfie. 
But as already stated, they should be so in aK cases, independ- * 
fmt of the Act of 1847. 



•. .* 



• a* 



• • . 









f ,» 

864 . SUPREME COl/RT OF GEORGIA. 

' ty! ■ . ■ ■ . I f ^ « ■ . 

Walker, ex'r, vs, flanter et al, 

: ^ : 1 „ 

* 

I 

No. 66. — Charles Walkbr, executor, plaintiff in eizor, tJ^, ' 
William Huntbr, et al. defendants. 

• * 

[1.] If it is'the rale of the Ecclesiastical Courts of England, that the evidence 
of as many as two witnesses is necessary to prove Che' execution of a wiU, ^ 
be the circam3tances what they may, it is not the rule of any of the Courts, 
of this State. ' 

[2i] Althoagh a person has a right, and it is lawful for him to move a testa- , 
tor, to make l^im his executor 'pr give his^oods even, when the testa^tor ii*a 
person of weak judgement and eisy to be persuaded, and the legaqy gr^; 
yet, if, in snch a case, a person does so more a testator, a rery strong pre- 
sumption arises, that the *' moving" is of a sort not right or lawful— a pre^ 
sumption only ^o be rebutted, by that person's bringing forward som^lui^ 
sufficient Co show the will such as a ipan of average mii^d, mprals and tui- 
• ily love, piUght be supposed willing to make. - * ' 

[3.] Whilst a case is on trial, a Counsel for the party that prevails, entertains^ 
for a night, two of the Jury and the prevailing party: Heti^ that tiiis is a 
. sufficient ground for a de\f trial. ' ' * * 

[4.] If a paper, calculated to'influence a Jury in favor of one of the parties, 
gets improperly before them Whi\e considerliig of their verdict, and thev 
fin j fof that party, it is a^ound*for a new trial. 

Oayeat, from Twiggs Superior Court. Tried before • Jnd^ 
' Powers, March Term, 1854. 

Tkis was a caveat to the last .will and testament of Willmm 
Hunter, Sr., filed by* the defendants in error, on the following 
grfiiunds: • . . • 

' « Ist. That the testator, William Hunter, at the time he rn^t 
* and published said wiU, was ^otof testalble capacity, but t^fts 
of weak attd unsound Qiind* 

2nd. That the 6aid testator, at tl^e time he made and pdb- 
lished' his said last will and testameht^ wi^ laboring Hnder*V 
mental delunon in regard. to the slaves or negroea beqn^atfiei 
%y him in sai^ will ; that he fancied^ and dekslvdy bdM^edL 
that their b^ing separated aA^d scatteif'ed after Jtps deatih, might 
be pvevented by bequeathing them all tp one person; and'tteit 
nnder such mental delusion, he made' and published hi^hurt wiQ 
ajdd tMnment. 






• • . • ' %. 



• • 



. . • 



KA-GGS, F12BI&UABY TESM, 1899." . ^ 

iWalkfir, ex'r, vs. Hauler et aL 
_^ —, r.; ^^ 

3d. ^hat the said testator was unduly and improperly infla- 
enced to make the said last will atid testament, by ,the said 
Charles Walker, one of the ezeeators thereof, and in favor ot 
whose son, or soqs, not being of. the blood or akin to the said 
testator, an. estate in remainder of all the negroes and thenr 
Increase was bequeathed- ... , 

4th. Thai the s^id Charles Walker, the executor of the said 
last will and t^tameatotf the daid Wm. Hunter, deceased, pro- 
cured the ^d Williigu HuAter by his fraud, coyifi, and by 
his wicked aAd fraudulent contrivances and machinations to 
make the aaid will and testament, and that the same is void — 

For that the said. Charles Walker, executor, as aforesaid^ 

..H^duced .the said WilliaAp Hunter to leave his residence in the 

County of Twiggs, an^ go (to) the residence of himself, or that 

of one of his brothers, in the County of Pulask^, where the said. 

will was executed. . . t 

■MM ' 

That the said will i^ h^ed, ^^ Georgia, Twiggs County/' 
where the residence of the said William Hunter w^ ^and exe- 
cuted in the Cdunty of Pulaski, wliere the said Charles Walker 
xijesided. . ^ , 

That two of the witnesses to the la$t will and .testament 
.were the biothets of the said Chatles Walker, one of the exec- 
utors thereof, and uncles of one of the legatees in remsindery 
and the other an eniploy^e or workman employed at the time^ 
by the said Charles, or one of his brothers^ 

That the said Charles Walker, executor aforesaid, procured 

jthe draft of said will toibe made by^an Attorney at Law— but 

by what •Attorney at Law is unknown to this caveatpr — and to 

,.be cqpied off by sogaie other person — ^bi^tby whom is unknowB 

to^iB caveator^ 

.That said last will and testament w^s not drawn by the in- 
fltructfions of the. said testator, but by the instructiona otthh 
BU^^Charles Walker. 

l^bat by tha sai4 will, an estate in remainder, of M. the ne- 

• g]roes pf th& s^id William . Hunter, deceased, Was bequeathed 

.to one' of the sons of the said Charles Walker, and, in the evcM 

of bi^j^ath bffof^ the death of Charles Hunter^ t^e g^tn t^ 



• • • 



• 



. * • 



• • 



we, . -gUPESlMB COURT OP G®>B<HA. ' 

1 - I ■ * * ' ' 1 

Walker, ex'f, w. Hunter et cd. 

*.. ■ ... I ' 

• ' ■ . ' * 

whom a life estate in t^e same negroes was beqUeaiked, then 
the said negroes were bequeathed to David Walker, another son 
pf the said Charles Walker, executor. 

That the said Charles Walker, nor his soi^ or sons, are or 
were of l>lood'kin to the said testator. 

That the s^id William left several' brothers and sisters, nie- 
ees and nephews, his heirs at law, liayiug departed this Kfe 
• without leaving a widow, or chil4r or descend^t of cMld ; -iSiat 
all were excluded from the provisions of the will, except Charles 
Hunter, altl^ough they were friendly and pn gpod terms with* 
the said testator ; that to the said Charles Hunter fhe said 
William Hunter bequeathed and devised ihp whole of his eQta|e, 
'teal and personal, except .his. negij^es, and a life estate in. 
t^tem. * • * * • • 

* That the^'si.id Charles. Hunter was a man of weak mind, ea- 
sily controlled and much u^nder the influence of the said pharlea 
Walker, the executor as aforesaid, and actually, in a few months 
after the death of the said William Hunter, deceased, exiecuted 
to the. said Charles Walker, the said^ e^cecutor, a deed of gift 
* 9f all his landS| acquired under and hp virtue of.said will : aa4 
also of all the stock and tl|eir. increase^ andjiis plantation tods — 
all of great value, to-wit : of the value of twenty thousaiid dsir 
lars, or other l^ge sum ; and subsequently executed a wil]|, bj 
^hich, in a state of great qiental weakpess and unsoundness^. 
and .while of intestable capacity, as this caveator' believes and 
alleges, he bequeathed to th^ said Charles Walker, all his 
money and debts not previously conveyed to *him in the deed 
of gift : t|iat he made no return of a^ inventocy- or ^[qpraise- 
inent of the estate, of the said William Hunter : that he aloM. 
. as executor of said William Hunter, at first qualified a£ ex^cii- 
tor and took out letters testamentary. . 

Thfi following ^ the bill of exceptions, wbicl^ will sbow the 
jhcts of the case : 



&JH)RGIA-^Tl^IGaS CouifTY : .... * . , 

. 3Be it rc^nembered,' th&t at the Marpti'Tei^,}8^ oHf 

>8Q{ie]% Court, t^ above stated cause eaa^ <tt(to WttMy oit 




« 



« . 



MACON, FEBRITARY TERM, 1855. 36T 



Walker, ex'r, ^t. Hunter et al. 



dffealy before the Hon. A, P. Poiteks, Judge, and a special 
Jury, trUen Counsel for propounder mored lo strike out the 
BecoHd ground of caveat and so much of the fourth as brought 
in question the capacity K)f Charles Hunter, which motion waff 
orer-ruled by the Court, and propounder excepted. - ^^ 

EVIDENCE. 

m 
■ I 

Dlovid'Walker tras sworn, and testified that the paper hand- 
^ hSih T^as the will at William Hunter. He, the witness, suh- 
•eribed it as ^ witness the day it hears date, 16th Nov. 1839. 
^Sliomas D. Walker and Richard W. Lee subscribed the will at 
tiie s^m^tnne as witnesses ^th him, the witne^, (ind that this 
k the paper th^ witnessed. Thomas D. Walker is dead, and 
has bete fer «ight 9r ten yeaars. Does mit know ^herc Lee is* 
S*i§ 18 not iri Georgia within witness' knowledge. He has in- 
quired for him and cannot heur of him, an<I does mot know 
, wbe*^ be is, nor which way he went. Has been gone six or/ 
Beven years. He, witness, saw testator, William Hunter, sign 
ibd wiU'in presence pf the witnesses, and the witnesses signed it 
in thie presence of the testatoi , Hunter, and of each other. Wit- 
ness signed it at the request of Williani Hunter ; signed the 
paper as hn will, in the presence of the witnesses, aaid they all 
a^ned in presence <rf each other; William Hunter came to 
witness' house at frdnt gate 'and asked him to" go t\rith him to 
Ohjailes Walker's, and he went with him ; and on the the way 
to Charles'" Walker's, Hunter told witness he was going down to 
make his will, and wanted h?m t6 witness it. Witness, David 
Walker, lives nol over a half .a mife from Charles Walker's, 
mnd between William Hunter's and Charles Walker's. Wm. 
fltinter lived about six miles above witness.' ^The paper, the 
v8H 6h*o\m witness, is the paper Hunter askeJ witness to sign. 
Be saw Thomas D. Walker and Richard W. Lee sign it. 
Their si^atures are genuine. As ftr as witness knew, Wil- 
*Ijam Hunter was of sound mind. He thought Mm, at the thne, 
^pdble of tlransacling business. Had been acquainted wiA 
t/U€n or twenty year^ When wrtnesB flrst bccaine tpc- 



< • 



^8 SUPREME COURT OF GEO^GIaJ' 



A. 



• m » 



Walker, ex'r^ v§. Hunter et ail. 






qoainted with- faim he lived aboat ten milto from faim. * After-* 

>ards moved to i?ithin six miles. Had had a ^ood deal of in- 

. timacy with biQi. WiJHam Hunter tame to witness' honse on 
4h6 day testified ahout, on horseback:* *He discovered, no di£| 

^f^rence in his mind on that dkj (the day the will waff executed) 
from what it was before^ , Appeared to be in good health, aiWL 
was not sick. . Hunter had & good deal of propert j^ lanis; ne- 

' groeSy hordes' and mules. He had a good* many negro^ anji 
managed all 'his oWn business. He lived ^evt&riir years after 
the dttte of the will^ and : id sadd to , Jiave died in hi^ seveuty- 

^ fourth *year. William Hunter, aftw he got to Charles Wattt 
er's, obperved to witness, "J want you all to-oigait," (life 
"will.) Ne onf^was with Hiinter when he^ .caUed tit wita^'. 

. hotise. . He wanted witness to go with himand he ^renL • *He 
did not Ch^ say .what hb wf^nted-. * Thomas B. Walk^ lived 
il^boilt thred quiirterd of a mile froia Charled .Walker's. lie^ 
was theve when witness ^nd Htmter ^ot 4here. Thoma» O. 

• Walker got xhere about* the timo' Witness got there. He lived* 
below' Oharles Walker's. Dr. Taylor was there when- wi^es^ 
t got there. It was not half an hx)ur after w\tn^8S got Aete}^ 
fore the will * was signed. The first he saw of th^ will- Ht. 
Hunter had it in his hand, -and he laid it on the table. JSo 
one had' time to write the will after witn'esS' got tlieire. Wit- 
ness does not suppocf^ the 'will' is in the testator^s hiLkd-wHt^Bg. 
iTestator ditinot tell witness, as be went to Ghacle& Wi^db^ 
X^hether he'ha^d ^e will written nt not, nor did ^^ he tfbow Ae 
will to*witness. Oliarles Walker, Thomas D. Walket ond int^ 
kiess, are brothers. William Hunter lived from three {M|Jbs 
to a mile from Tarversville, a. pubHc. ^ace. William H^blfpr 
invited Witness from the parlor into the room where the wiBI 
Was executed. Charies Walker was in the room. '^ H^ de«8 
not recollect t^tft Hunter had been sick, and staying at* OfaiMi^ 
Walfcer^s' before, the will was ma4e. There was a report tbil 
testator once attempt<)d to hang himself. ItVai, b^ tbbfcl^ 
stele time befbr9 the date of the will ; but never l\eaid they* 
httd to aet up with him and watch jiim to prevent his haogipig 

' Vimself, :Ner doe^ He recdkrot Ij^t testatp? \aA^ "a^Q^* 4«t . 









MACOK, FEBRUAKf TERM, 18^. 869 

Walkqr, vx.% m. Hunter et ai. • ' * 

time, beiui at Charles Walker's. Cannot 9ay that Cfaairles Wal* 
ker had attended to business for testator. Charles Walker 
- might have shipped his oottcm. The testator did not have 
.much company about his house, but was frequently at Tarvera^ 
▼ille. He * lived secluded and had but little to do with the 
world. Witness did not know testator .before hehadmuoh 
property. Charles Walker visited testator in coo^pany .and 
^ne. Does not know how often. He and his family visited 
. Hunter as relatives Jisually do. Testator was a good farmer, 
and as far as . witness kndws, 4t man of strong mind, and very , 
determined. Witness does j)ot know how long after th^ date 
^of the will it was that Lee left. Lee usually made Thomas D. 
Walker's his home while he was in the neighborhood. The ' 
The will was not read in witness! presence. The testator 
took it wlien signed, and witness next saw it in the .Ordi- 
nary. Witness does not know who pi*odmced the will. \^fore 
the Court of Ordinary, but supposes* Charles Walker, the 
executor, when first produced for probate ; nor ^oes he know 
where it came from. He believes testator had mind enoij^h to 
remenlber the names^ of his negroes. He heard it spoken of 
how the property was given, bnt never ,heard the will read to 
lihis day (the. day of testifying). Charles Walker's oldest son 
is seventeen or ^ghteen years old, now. Witness don't rer 
member how many children Charles Walker had at thilt time,, 
but thinks three or four. At the time the will was made, 
Charles Hunter had^no property except a horse and $ome mon- 
ey. Charles -Hunter lived with William Hunter,, (his brother,) 
and after his death he lived a short time at William Hunter's 
plantation, and then went' to Charles Wallfer's, and died there. 
The mpth^ of William Hunter lived and died at Thomas Hun- 
ter's (her son,) as Thoma^ Hunter told witness. After Charl^ 
Bunt^ got to paries Walker's^ he, Walk6r, had«a room buih 
for him. Charles Hunter rather opposed the building the 
room. 

To all this testimpny touching Charles Hunter and his pro^ ' 
.ftstji and die si^yings of Thomae Huntex, the Counsel of pro^ 

* VOL ivn.-4t 



* 
» 



* \ 



• # 



8f0 SO?R»IE COtJBT OF GEOBQlA. 

. . « . 

• ' . ■ Walker, ex'f , vi. Hunter et oL^ ^ 

poonder 6b|ected, 1bat their otjection^ were o?er*Kiled and tKej 
excepted- 

TJie witness further testified — ^William Hmter was a widows - 
ef. Charles W^ilker's* first wife was the grand<fdaiighter oT 
William Hunter's dead wife. William Jemerson Walker is 
4ead, and if alive would no^ be tSB^enty or twenty-oiie year$ 
old., David Walker is the 'son of Charges Walker's first wife,* 
and who was a Jemcirson.. Witness does not ix>ow firom whom 
William Hunter derived his .property:. He does not know- 
, when IV^rs.. Hunter died.' Charles Walker is now in possessioi^ 
6f th^ lands dpvised by William Hunter to Charles Hunter. 
' 'TJiis was objeoted to by Counsel f or, propounder, but aimit-^ 
4)ed by the Court, and they excepted. 

• The will of William HuAter was th^ read in evidence, and 
which. is, by copy, a^ follows:. '• » 

... ' . 

G^OEftiA, TWIGGS County : * * . 

Exercising the privilege which is confeited upon m^ by the* 
laws of ifiy country, of disposing of my property wl^ilst in life, 
\iy^ vrill to take effect upon my death,- 1 do hereby declaim this . 
instii'ument as 'my 1^ will and* testament, as follows : 

Pirst. I de^e that my just debts shall be^paid; ■ » 

. Second. I give and bequeath unto my brbtfier, Charles Hun^ • 
t'er, for 0iq natural love and affection I cherii^.for hiitf', all my 

* 

lands, money .and stock of horses, cattle, hogs, and all other 
diattels, personal, whatsoever, subJetH: to the exception hei^iar* 
after mentioned, and the remainder or limitation thereof. 

Third. My negroes and their increase I give and .bequeadL 
to my brother Charles, during his natural life, or a lifp-time es-« 
ikte .therein*; and* upon the death of my said brotheir, I A^ 
give and bequeath my' negroes and their increase, absolutely,! • 
unto William' Jemerison, ficstson of my friend Charles' Walkei^ 
of Pulaski Cpunty^ for tho friendship axid good' will I ^ar. to 
and Charles and hi^ son, William Jemerson. And should WiK 
'Ham Jemerson die before my broths, Charles Hunter, L.then 
g^ve and bequeath my negnoes' and their .incr^itse unto Bairi^* 
^e second son ^f my friend, Qtv^rles Walk^, '^aimlmJ^. • - 



. ' ' MACON, FKBRUABT TBRM, 1856. 871 

Ifc^—^h^ J MI^I L I .1 ■ ,1 I I I I I.I .. I I I 

Walker, ex'r, «t. Huoter tt 0I. 



Iiastly. I appcmijt my biofbery Charles HuiAer, and mjt 
friend, Charles Walter, my execators, with ample authoritgr 
and discretion to carry out the intention of my will. 

Signed and sealed by the testator in oar presence, and in die* 

•presence of each other, aj; the reijuest of the testator, this the 

• sixteenth of November, in the year of our Lord, One Thousand 

Eight Hundred and Thirty-nine. 

• WILLIAM HUNTER, [l. s.] 
Testr— • * • • , 

' David Talker, ' 

Thomas D. Walkbr, 
' Bichabd W. Lkb. ' 

The propounder having closed, the caveator offered iu evi- 

^dencewhat purported to be a will of Charles Hunter, after 

proving by Lewis Solomon ihat it was the original, from hi9 

office of Ordinary, and was proven in common form by Charles 

Wfilker, the executor, who took out letters testamentary. 



* « 



• • 



Georgia, Twiggs County : 

In the iiame of God, Amen* I, Charles Hiyiter^ of si^d 

/State and County^ being of advanced itge, and knowing I must 

shortly depart from this world, ^eeta it right and.proper t^iat I 

rShfHpldmake a disposition of- the prcq^rty with which, a.kinjr 

Providence has blessed me — ^I therefore, make this my. lapt will 

and testament. . . 

; l^t. I dedre and direct that my body be buried in ^ decent 

and .Christianlike m^nn^, by the side of.my broil^er, WilliaHi 

HuAter. 

2d« I desire all my just de|)t8 be paid by my exeeutor withr 
.oi^tdelay, 

Sd.^ I give and fl^eviae to. my mneh esteetted friend, Charl^ 
Walker, St. of Pulas^ Coun^, all mo^ey ihat I, may have a\ 
*mj ^ii^tiij either In notes or bank checfas, or whartever I majr 
*4fepo^e88ed 0^ thai I hav^ not heretofore deeded Away. 

4tku i, iHwiitfliiitff 9^ si^ini J^f worthy firi^d, £flMi^^ ' 



ST2. SUPREME COURT OF GEORGIA.* 

Walker, exir. v$, Hubter ei aL 

. , SV^alkenr^Sr. of Polaaki Coimty, executor .of this -my -kst wiH. 
and testament, this April 29th, 1851. 

CHAMPS HUNTER, [l. s.] 
. Signed, sealed, ddirered and published by Charles Hunier 
• as hie last^will and testament, in the presence of us, the sub** 
bcribrers, who subsoribed otir names hereto in the presence of « 
said testator and of each- other, thia 29th April, 1851« * 

CflABLBS E. Taylor, * . , 

'WiLUAit Martin FiUsBR, 

^ Kl^h will was objected' .to as incompetent and irreleyaal 
evidence, by OcJnnsel for propound^r of Wm. Hunter's will, . 
mi objection over-rijQed, and they excepted^' 

The c^Yeators then offered* in evidence^a deed from Charles 
jHunter to Charles "Walker, which prppbunder's Ooimselobje^ 
* ed' to a^ incompetent and nrrelevant, but objection over-rqIed| 
and Ihey excepted, and the deed' was read as 'follows: 



• . 



This Indentme witnesseth, that for and in consideration' of 
tM fi^e^d^i]^ and kind feeling whi)oh I bear for Charles Walk* 
er, of the County of Pulaski, and for the yaluable considerstioa . 
#f the sum of one hundred dollars, in hand paid me, the receipt 
whereof ip' hereby ackx^oidedjged, I, Charles -Hunter, of *t^* 
Btale arrd county aforesaid, do bWgain, sell, and convey unto 
said Walker, all that body or parcel of bnd amounting to 
twelve hundred &cre8, more or less, on which- 1 how reside, ad- 
joining Tarver's, Shine and others, and to fais 'hei^s, to have 
tad to hold the s^me to their own. proper -ude, benefit axid* be- 
hoof, forever. As also,, i bargain, sell and .convey ' unto 
' Charles Walker, all my stock of every description, <^ horseSf * 
« mules, /cattle, hogs^ &c. as also all plows, gear, tools,- and 
every either article or thing-belonging to^ the plftntation, 'n^* 
eessary to the proper cultivation or repair (Mr keying i^ 
. ef the same. ' lliis deed of cd^Veyance to be salgect to thil ' 
< iKAdllioa: thaiihesaM phaites Jtoifter is 1»^tWt»Briifc4fco 



« 



• Macon, febbtjart term, isss. ms 



Walker, ez^, m. Ho&ter «C oL 



tinrestrieted use, control and' tojoyment of all tbe property 
Iierein conyeyed, for and daring his natural Kfe, without rent 
«r aoc0nntal»lity for radi'nse. And should any of the person- 
al property ot chattejs now and hereby conveyed,^ exchan- 
ged for other property, that so exchanged for is to be treated * 
and held as propeity now conveyed; and the increase of the 
stock of every kind, as also of other chattels, however caused, * 
is to be treated and considered as a part of tbis eonveyanee, 
and secured to the said Oharles Walk^ thereby. 

In testimony whereof, I have .hereto set my. hand andseal^ 
this 27th October^ 1347. 

CHARLBS HUNTER, [l. s.] • 
In presence of 

Daniel H. Coombs, 

IvBRsoN L. Harris, 

ISQUAL RAlNBT, J. JP. ' 

Caveators then offered tbe depositions <>f StfmueL Jemersc^ . 
to which Counsel for propounder ol^ected as incompetent, se 
far as they related to the saying of Mrs. Hunter, and touching 
«the report of a^ former will, and an agreement, verbal, between 
Hunter and his wife. Objection over-ruled, and Counsel ex- 
cited. ■ • » 

Samuel Jemerson: 'Witness knew William Hunter, of 
iV^gs County, GeOi^ia. He married his mother, then Mrs. 
die widow Jemerson; but he knows nothing of any agreement 
l)etween said Hunter and' his^ said wife, prior to their marriage, 
«l^eeting their property, or the divi^on of the same. He 
once had a conversation ^ith his mother, then the wife of. Hun- 
ted, m which she* informed him that her husband had made a. 
inliy and had given one half of hi^ property to his people and 
t^ other half to her peoifle. That some seven or eight years 
lifter ijie d^ath of his motiter, he communicated to Wm. Hun^ 
fet whati^ mother hfid teld him, and asked him if ' he had 
made suchja wil{; and h^ answered- that he had, bu^ that^ since' 
4ii^4^"tf Ub wllSi'he had biteit it, 8m4 will was written 






:8T'* . • SUPBfiMB ■ CO0RT OF GEOfiGU. ' 

♦ ' ■ I ■ I 

Walker, es'r, vf^ Hunter et oL ' 



as well as he now reooUocIs, by Wm. D.owaii^ «of Linooln 
Goimty. lo the coaversation vUh W. Hunter^ above referred 
iO| he asked . him what objection he had ^ earrjing .ontthe 
'agreement ^r understanding betweep him iMid witnessV mother 
in relatioik to the disposition of their property as aforesaid; 
and said Honker then replied, that it was teirifying to him to 

* have h^ negroes Scattered all over the- WQrld. Witness then 

. asked him how he conld prevent that ' after his death ; and 
fihinter told* him he thoi^ht he had -fixed that; that he. had 
given tiie negroes 4x> Charles yftifk^fs child, and th^kt bj tUs 
time, that child would .die, the negroes would*die with old age. 
fie once had a conversation with Oharles Walker, and immedi- 
ately after with William Hunter above stated, in regarfto said 

^ Bunter; several y e^rs befolre having beenderanged in hid min^ 
and said Walker told witness.that at the 4itiie said Hctoter was 
so derapged in mind, he. Walker,. went t^ Hunter's house and 
persuaded him to go home, with him, which Hunter did; and 
•that in about lihree di^s he-cured him (I{imter). Witness then 
asked Walker how he did it;* and Widker iadghed Mid said he 
did it by talking to him. Walker further stated' to ^toees, 
that while Hunter was so ^sranged in mind, Ohartto Hunter, « 
broUier of William Hunter, sat up and watched 'Um (Woi. 
Hunter) three days and nights^ to keep him frpm hangiog 

Jiimiself. Thi§ conveisation, above cletailed, vdth Tniliam Hun^ 
tor and Ghabrles Walker, occurred^ i|i October, oi^ November^ * 
1639. He is not intej^ted in the case. William Hunt^ ink 

, mariied to Ms mother in the month of August,* 1802, htA- does 
not know when the will was raade, about which he imd^fiontc^ 
had the conversation btfore stated. > He has i}tated all^e ctti^* 
iMsation betweto him and WilUam Hunter about fixing Ui 
property, and Aat conversation ocfuired in 'October o^li% 
veinb^, 1839, at the hoiee of WiUian^^ Hunter, in Tw^gs 
County, Qeo]^ No persoo was pi^9iei)t ewifi Hwter «di 
witness, and the reas<m he gave.f(Mr fodn^ his propertgy so wf^ 
tiiat it y(B» terrifying to him Ao bqive hie negroes se^Mm^ ^ 
4;^er t^ie wodd. Witiiess doeanot know that Ae.^f^^iJIl- 
pul^ isthd same 1^.w%|i a^M^^^t. ^i»»t^Wp»il^^ 



I 






i 



MACON, FEfeRUARY TERM, 185S. «75 

Walket, ex'r, vi. Honter M ai. 

irldch he kad widi WiUiam Hnnt^r, be endeayored to get him 
te carry out die agreement between him and witness' mother, 
as he understood it^ and thait he did that by the request of hia 
mo&er. Mts. Himter i^ab die widow of Jemerson before mcur- 
*riage. Chatles Walker's first wife Iras her grand-daughter, 
'and was«Mai^aret Jemerson before she married Walker.^ Bhe . 
IS now dead : but when she di^ he cannot -state. He tned te . 
get Charles Walker to influence William Hunter to carry out 
the agreement which witness' mother- had informed himwaci) 
existing between her and her husband ; but he refused t6 do it. 
He once wf ote t6 Stat'k Huttw that William Hunter, his bro- 
*ther,. was' dead; th^t it was understood that he had given his 
*negra' property to Charles Walker's oldest sail ; and that if he 
was in his place he would connaence suit for it. He wrote to 
' said HuntOT on the 4th February^ 1847 i he^cannot state when 
nor where the verbal agveenbent between William Hut^ter anjl 
his mother was macle, and of which he has spt)ken. He last 
saw Hunter at hisbwn house, in Twiggs County,. Georgia, in * 
October or»Novemher, 1889, Said Hunter was then, judgiiig 
from his conversation, a man of ordinary capacity, and capable 
qf -^t^lkding- to his bui^nes? as men generally do. Willianfi 
Hunter, when hb married his mother, had no proberty except 
an old white horse. ^ He did not know that Hunter wi^ going 
te marry until th^ day before it took place. ' There is no pri- 
vate, agreement bcftween him atid the heirs of William Hunter, 
or* their Attorneys in relation to this suit. He never wrote but 
two or three lettefs upon the subject, and they were, to Stark 
Hunter, a^d perhaps one other letter to Seth Hunter. Sworn 
to and executed in Alabama. 

The depositions of Humphrey Jeflerson were offered and ob- 
jected^to- as 'the sayings of Charles Walker, *Ioiig before he was ' 
execfutor^ and aU6, ^witness' understanding. ' Objection over- 
mledand deposition read, and Counsel fbf propounder except- 

ea. .•'■** ■ 
Humphrey Jefferson : Witness knew WilHam . Hunter prior 

' to his death, as far back as he can remember. He heard^ 

WfiSk&B 8^ 8i»]^thisig tending to show iiis <q^udpn of tlie ix^ 



s 



* 



• 



* 



8T6 ' SUPREME COURT OF '.GEORGIA. 

J • ' ' ■ ■ I ■ V— ■ 

Walker, ex'r, vs. Hunter et at. 

- - * 

fluence one fnight acquire b\et the said Hunter. The^ laai 
time be sa^r William Hunter was at hid, Hunter's house, but 
do|^ not reo6llect the time. Hunter^s' wife was witness' grand- 
mother, and be has always understood he got his property by 
her. Witness Had a conversation with Chiles Walker some 
ihre^ or four years before he (witness) Jremoved fpom Georgia, . 

. and -during the year Witness lived with Hunter; but' does po^ 
recollect the year nor place, nor. whether any one was present 

, or not. /This gave rise to the* conversation. Witness had de- 
.termined to leave William Hunter, with whotn he was living. 
He met Charles Walkerj who accosted biln thus : ** I suppose 
you -are going to quit old Billy?** — ^when witness replied in 
the affirmative. Walker said he was a fool — that he ought to* , 
^tay with said Hunter and nurse him — tliathe (;ould influence him 
to give bim, witness, hl\ his property. This is the substance 
of the conversation alluded toJ He does not know what kind 
of influence. Witness does not know the state of Hunter's 
mind when he made his will.' This is all he knows. 
Sworn to and executed in Alabama. 

The depositions of Artiihetia Wheat were offered and ob- 
jected to as hearsay from Mrs. Hunter and others, and about 
another will not in controversy, and 'because some of the cross 
questions were not answered, but referehce was mado to lier 
answers to direct interrogatories for answers to the cro^. Ob- 
jection over-ruled, and Counsel for propounder excepted. 

SKe knew William Hunter, and I Knew of bis making a will, 
Written by William Dowsing, St. in which Ke willed 'his prop- 
erty to his wife during her life-time; and at her death, the 
piroperty wias to be divided — one half to'go to her children -and 
the other half to his relatives. This will was made in* Lincoln , 

* County, Gieorgia. Does not know what hasbecotEfe ofnt. It 
was left in* the hands of William DoVfsijig, Esq. Witness^ xxtih 
the)* made an effort, through Mr. Wheat, her Bon-in-Iaw, soon 
after the death of Dowsing, to get possession 6f.Baid will; ^bat 
was informed, said Will could not be found -amongst EsqiKce 
DoWsing^'s papiers. She never heard COiarlf s Walker eij kay^^ * 
about- Wittam. H|mter's vriU. Witaciss hmmBj iki^icaHa 



» 
« 






MACON, FEBRUARY TERM, 1866. 877 

-, — ; 1— 

Walker, ex'r, i». fiuater et m, • * 



fieit to William Hunter's^ soon after the death of her mother, 
(Mis. HjUnter) the paid Hunter appeared to have lost his mind 
tp a considerable extent. ' S]:te visited Tmggs Gcuntj again in 
IB4I9 som^ ten years after the death of her mother, and called 
'on the said William Hupter — ;that bis mind "appeared much 
impaired^-fio much so that he*wa9 incapable oT doing- business 
forcecti J ; and that he Kas all the time more or less intoxica- ' 
ted. She was- present -when William Hunter made a will (the 
Bowsing will)-^that said will was made between the years ISOS 
and 1808, in Lineolp County, Ga. and was witnessed and 
sealedy^bat floes not recollect who witnesded it. Dowsfng, Wm« 
*Bunter's mother and witnesd wer-e presents William Hunter 
willed onC'halC bis property, after his- wiib's death, to her chil- 
dren, and the other half to his relatives. • The will in dispute 
i6 nof that will j liUfcness' mother made an effortj thrgugh wi^ 
neiss' husband, to get ,that wilL Witness visited Wniian> Hun- 
ter again in 1841, in the fall, but- understood, before she 'i^enf,, 
• 9be had no chance to get . any of his property^ Witnes? i^ 
dau^liter of William Hunter's ^ife ; andfrom her ifiother and 
the Fampy Bible, ahe. learns she was born on the 29th day of 
'»4.pril| 1791. SinccCharljes Walkar's refusal to use his influ- 
Mee iur carvying out William Hunter's first will, she does not 
•^Bteemhin^^ highly a^ before; and* the death of his first 
•ij^e.hasngt changed hec feelings towards him. She knows • 
lliat William Hunter's mind was as good when I^ made his 
^t,will, as it has b^en -since, her acquaintance with him. 

Sworn tb and executed in Alabama. , . ' 

. f The depositions of Artenjetia J, Lyle were ofiered and oK- ' 

jected to because it was hearsay, and because, it was the say- 

iMjA of Ch^le^ Walker, long before he was executor, and 

tia^ answers the* crosses .by jreference to her direct answers. ' 

. Qb^ei^tions c^er-ruled, and Coun^I excited. 

She kBew*WiHiam Hunter, of Twiggs County; was inform- 
ijsd.he.Qiarried Mrs. Margaret Jemerson^ She beard remarks 
HMde by Charles Walker to Moses Wheat, in relation to Mr.* 
William Hitter and the disposition of liis prppeijty. Mr. 



•• 878 SUPREME COURT OF GEORGU- 

_— ^ —^ 

.WaJker, cx'r, tt. Hunter et at, • 

' Walker remarked to Mr. Wheat, He y^ovli do wrong to move 
from Twiggs County ; that Moses Wheat ought to stay by 
William Hunger and nurse him well, and secure his property; 
that it was a fortune rqady made, and that it was in his powes 
to secure it,- and he ought to do it. To which Mr. Wheat rC-* 
plied: " Charles . Walker, that is not my way of doing buA- 
• noss.** Charles Walker then remarked that he, Wheat,,was 
interested in the disposition of the proparty, and had more in* 
fluence over him than any one ^Ise, and when he moved arwaf 
somebody would get it, and that he, Mr. W^alker, h^ as mueh- 
right to it as any onei else,, apart from the legal heirs, knd ha 
woutd, after the repoval of Mr. Wheat, nurse the ol^ man and 
get it if he could. Mr. Wheat then asked Walkei: if he would 
Aave .property got ip th^t way. To which Walker^ replied, I 
had as well hftve> it as any (me else,* and. ipy motto is, to keep' 
all I have got and get all that I can. She believes Mr. Wal- 
ter's motives for usirig these remarks to Mr Wheat was to coni 
vince him it was his duty, havipg the power, as he,. Walker. 
* believed, to^influence Mr. Hunter, to mak,e'a0 n^ar an 0qual 
distribution of the property as he, Mr. Wheat^ thought to ba 
jfist, and thereby secure the property to the legal heirs. Shh 
does not behave ih^t'Mr. Walker once thought ^at Mr. Wheat 
would or ought to secure it to himself individually, ^t aB«r 

He saw that the children of Mrs. Hunter, and.the heirs of Mr. 

* 
Hunter, neglected thetir interest,, he then believed he had mb 

good a right to secure the property to himself as any oa6 el^ 

She knows nothing of any previous will. . She is not related to 

William Hunter. Mrs. Hunter was her grand-mother. Mo- 

ses Wheat married the daughter of Mrs. Hunter, and. witneSA 

is the daughter of Moses Wheat. * The .conver$&tibn.(betwQC^ 

Moses Wheat and Walker) occurred in the year 18274 at siSi 

in the *house of William Hunter, Mrs. Hunter, Mrs. Wheat 

and Mrs. Walker were in the house at the itinje. but witnte^ 

does not remember that either of them wei^ in the i;oom at the 

time the conversation occurred. The remajrk& were inade, ;aj^' 

presumes; by Mr. Walker, from the knowledge of Mr. ^he^tV 

Having s«ld his possessions in Twi^s, with the intention of ^j- . 

ft 

• • • 

I 



• 









/ 

% 



MACON, FEBRUARY TERM, 1855.. . STd" 

, Walker, ex'r, m. Hunter et al, ' 



ing the county. 6he resides in Chambers County, Alabama. 

Sworn to and executed in Alabama. 

James Ware testified he was acquainted with testator froln 
1805 to^his death. He heard Charles Walker say William 
Hunter attempted to hang himself. A report had gone out of / 
Mr. Hunter's derangement. Charles Walker said Mr. Hunter 
had got in a deranged way, and he carried his carriage and 
took him home with him. Testator never was a man of strong 
mind. Witness saw him at Richland meeting-house in May, 
1839. * He was standing off to himself, leaning against a tree, 
and appeared sad,' serious and melancholy. He thought tes- 
tator at that time of weak mind. He and witness were family 
connections. He, had but little to do with but few persons who 
had influence over him. Two or three persons were as many 
as ,hdd influence over him at a time. When Hunter first camo 
to Twiggs County, William Jemerson and • Moses Wheat had 
•more influence over him thafn any one else. They had much 
influence over him. After they removed from Twiggs the most 
lential friends of the testator were H. H. Tarver and 

larles Walker. Testator seemed to have great confidence 
m Chas. Walker. ' It mights have been prejudice in witness^ 
but it appeared to him that Hunter's mind was in about the 
same situation up to the time of his death. The reason which 
led witness to this c6ncluSion was from a conversation held with 
Hunter. He called to borrow money — J400 — of him. He 
s^id he w(rtdd not let him have less than a thousand" dollars ; 
witness was sent iot the day the testator died, to go to his house* 
When he got there Charles Walker, Mrs. Walker and Charles 
Hunter were there. Mt. Hunter's papers were examined that ^ 
nighl; he found no will; witness had a conversatioQ with ^ 
CSiarles Hunter in Charles Walker's presence. Charles Hunt- j | 
er was in a bad condition ; he was almost deaf. W^itness e^- )} 
deavored to get Charles Hunter to will part oY his property to J 
. his poor kin. Charles Walker spoke and said, " You might as f 
well sisg psalms to* a dead horse — he is in no fix to do any- ♦ 
I'thing." Witness never saw him afterwards in any better don--' 
<Bti4&; wknesp was in Marion the day William Hunter's wffl 






• 






jm^ SUPREME 'COURT OF GEORGIA. 

f 
J ... J ■ — ^ III,. 

^ ' Walker, cx'r, vt. Hunter .el al, * 

was proved. Charles Walker qualified as . executor, and wit- 
ness asked hinv if Charles Hunter wa&not goyig to qoalif j too; 
be replied, you know as well as I do, Charles^ Hun^r is not 
qualified to do any kind of business.. It was stated^ in WalkerV 

' presence, that the number jof Hunter's negroes was.flfty ; the 
negroes wei'e very likely, and would average from* betwe^i 
four and five hundred dollars a-piece ; witness and the other 
person^ named examined the notes and money, which, together, 
amounted to between thirty-two and thirtyTthree thousuid dol- 
lars. The co^ou crop of the previous year, amounting to sev- 
' enty or eighty bags, was then at the gin-house. The planta- 
tion was valuable, and then worth eight or ten thousand dollars; 
witness has seen. Charles l^alker at 'William Hunter's a few 
times ; h^ has heard William -Hunter and bis wife speak of 
Charles Walker's being there frequently ; witness jiever knew 
of William Hunter ever before having made a-wfll other than 
the one in controversy ; witness, testified before the Ordinsrj 
that it was in. May, 1838, he, saw Hunter at Richland ; he has 
since ascertained he waa mistaken — that it was May^ 1339, bi 
referring to. the minutes of the Association ; witness, at onl 
time, borrowed of William Hunter one thousand dollars, btit' 
this was not the time be applied for the four hundreds He re- 
members Tarver's note for a large* amount was among thej)a- 
pers of Hunter;' witness^ never tried tio get Charles Himtir to 
be qualified;^ he advised the Court that Charles Hunter *couId 
be qualified at any future Court; his feelings, ^ere^.hurt with 
Charles Walker on account of his suing faim' on the note givai 
for borrowed mpney; he had a conversation wjlth William 
llunter about the will, in >vhich he remonstrated agaitfst tibe 
will, and might have so stated, on oath, on the former tiial^biijt 
he does QOt new distinctly remember. Hunter then gave, "as % 
reason .that he made his will thus, because he could nyt bei^ 
"to separate the negroes, -as they aUj^ame from*pne &mily, and 

, he wished them kepi together. William Hunter died ip 184lt 
Charley Walker's first wife )ra* the^grand-daugUter of WilUun 

^ HuT^ter's wife. William Jemerson Walked and' Davicf "^att^..^ 
er are blood ^relatives of WilKam Hun|er;s wife. H^Uit ^el 



« 



4 






' MACON, FEBRUARY TEllM, 1855. 881 

Walk«r, ex'r, w. flanter ^ aL * * * * 

■ • 

ftboni the first of January, 1847. Witneas heaird from famil/ 
tcmiiexitm that the property eame by Mrd« Hunter, his wife,* 
9pd undarstood some time before his death that Hunter had 
given remainder in the n'egro^ to Charles Walker's son 

Counsel for propounder objected to all Ware's testimony^ 
▼faioh related to Charles Hunter and bis affairs. Theit objec- 
tions TKcre over-ruled and they excepted. t 

^versonli. Hanis, Esq. : Testified he never saw Wnd. Hun* 
tei: but x)nce ; he received a communication containing a re- 
quest to prepare a will for Wm. H^nt^r. At' this distance of 
.time, cannotsay whether it was from Willi^ni Hunter or Chas. 
Walker. If was one .or the other j he never had any busi- 
ness transactions with William Hunter^ he drew the will pur- 
suit td instructions, and enclosed it in a letti^r .t^ Tarvers- 
^le ; hejdon't riemembor to whom. IHiere was one item in 
the will he drew, giving a spiall piece of land to Gen. Tarver. 
•Afterwards, Tarver- spoke to him about ^e will ; when he saw 
Walker, he asked him if the will he had drawn and sent for 
William Hunter had been executed, and Walker informed hini 
iibatit had ; witness believes the preamble to the will pifo- 
P6upde(l.i9in the language of tne one he drew;, it has the ear- 
marks ; he cannot say Charles Walker did not send him the 
instructions The letter inclosing %the instruction^ was not in 
a similar hand to the signature of William Hunter to the will, 
ffhe eignature of the will appears like that of a paralytic man; 
ijras witness to the deed between Charles Hunter and Charl6d 
• Walker, and explained to I][unter th^ difference between a 
deed andla will. » . * , ^ 

• X3bjecte^ to'sayings about Chwles Hunter and* his deed* 
Over-xulerd and excepted. * 

Seth Mellon testified : He was applied to to write Charlea 
Hunter's will Charles Walker hafnded him a Form Book and 
ipstroctions for the will, in his. Walker's hand- writing ; ndver** 
had any conversation at all with Charles Hunter, about wiri- 
tiAg his "will. Charles Walker does not now live in Greorgia ; 
reuM^d in December,* 1852. Charles Hunter died in Sep- 
tember, 48S],^ His will was.wvitten April bef(xrer Meidi^ 



• • 






• • 



882 SUPREME COURT OF GEORGIA. 

« * 



. • t 



Walker, et'r, ot. Hanter et al. 



orandum for will was furnished by Charles Walker, who 
fequested the witness to write it in a plain, readable han<^ 
80 that Mr. Hanter could read it. Charles Hanter was stay* 
ing at Charles Walker's at the tin^e '; Hunter read the will be- 
fore he signed it. Walker got tho witness to write it because 
he wrote a good hand ; he was teaching school, and boarcbd 
at Walker's at the time ; can't say the will was executed the 
same day he Wrote it, but thinks it was not;"* Charles Hunter 
seemed to be reading the will; did not read it aloud'; he ex- 
pressed himself well'^tisfied with it. Charles E. Taylor, Dr. 
Fraser, Judge Hansell, and Hunter and Charles Walker went 
to Macon the next day ; Hanter was in his usual health, ex- 
cept having a cancer. .Charles Walker's family was' exceed- 
iygly* kind in taking * car^ of and nursing Charles Btmter. 
Charles 5unter had been staying at Charles Walker's since 
the first of January, 1861. ' When Hunter signed the will,* he 
said that was his wish and had long been. Witness nerer saw ' 
any eflbrt^ on the part of Walk^ to induce Ha9ter to make a 
will ; does not think he testified before the Ordinary, that 
Charles Hunter attempted to read theirill; he did not jead it 
aloud; did not knoyr that Charles Hunter was dim of sight; 
ht was de^f or hard of hearing ; witriess testified before the 
Ordinary, ^nd now repeats, that in reading the will. Hunter 
could not make out one word, and called -on witness. to expliun 
it, wWch he did. The word was about the middle of the page, 
-but he could- not, at that time, 'designate the word. Walk«r 
had a room built for Hanter. Charles hunter was deaf. 

Counsel for propoander objected' to, tfte whole oi Mr. Mel- 
lom^s testimohy,' as inqompetent and irrelevant Objectidn 
over-ruled, and they excepted. 

Lewis Solomon; re-called : Swore that Signal Bailiey was 
dead; that he testified Jbefore the Ordinary, that *he was not 
qualified to judge- of the legal capacity of William Huntet' to 
make a wiD, but supposed he was capable; he was a man of 
ordinary grade of mind;^he had. contracted with witnesi^ to 
build him a house, and gave him a plan and paid him fOr iti 
H^ .was, -as well as be could remember^ id 1839: ' 



* 






• N . . ••• 



\ 



• 



.MAOON, PEBBUARY term, 1855. 88« 

■ • 1 ' 

Walker, ez'r, vs. Hunter et al, 

■ : ' — ^- ; '• 1 ' r 

Bey. Henry Bunn :* Testified be had known YTilliam Hunter 
a long time — twenty or twenty-five years- Their plantations * 
joined, and they were in the habit of ei^ob&nging neighborly 
civilities. Hunter transacted his ordinary business very well ; 
he lived very much • in solitude, and appeared not to have as 
much mind as he really had ; be had but few confidential 
friends, and in those few be had the most implicit confidence ;, 
• when be once had confidcnceit was very strong: witness ne- 
' ver dou^d that Wm. Hunter had mind enough to arrange his 
will just as he wanted it ; he never doubted that Mr. Hunter had 
mind a plenty in 1839 and 1840, to make a proper disposition of 
•his property ; he did not know so much about him in 1840; 
his mind was of an qrdinary least; jie once seemed to have 
wavered in his' mind ; be once talked of hanjging himself ; 
thinkfli it was some time prior to 1839 — and witness, believes, 
about the time bis wife died ; witness wanted to get some mo- 
, ney of Mr. Hunter, but Jie did not seem as \Nilling to let him 
have.it as he expected; and afterwards, when witness told him 
he did not want it,, Hunter seemed disalppointed, and wanted 
him to take it thiat year and the next; he was not \fbat is 
called a sharp pan, but in buying goods he bought with care 
imd bought low down; he was a slow man, and slow to take 
up improvement ; he was ea«ly excited ; a dry spell would 
excite him much ; liis mind once wavered ; witness saw him 
about/ that time st General Tarver's. * WilUam Hunter's mini 
was between the two extremes of an idiot and a strong mind ; 
4S there are many grades of mind, it is ha;rd^os{iy what grade 
kte had ; he was always excited at a dry spell ; he never would 
BfU com, wben^be had abundance, till a new crop was made ; 
he had but few friends, and. these had influence over him. 
William Jemerson and Moses Wheat had influence with him . 
t51 <hey moved away,' and then General Tarter had influence 
with him i hcf had confidence in Charles Walker,i and thinks 
he had influence over him ; witness had less acquaintance with 
William Hunter, for tlie ijeven years preceding the fiisst of 
January, 1847, tlian before that .tane. 
'-ThiM^t^lw D- B«oth : TcBtiiied he knew l^illiam Hunt^i^ 



» 



K* 



• • 



♦- ' 



* * 



884 



SUPREME COURT OF GEORGIA. 



'Walker, ex'r, w. Hunter tt al. 



but wais not partioolarly intimate with him. Has known Urn 
Since witne&s was twelve years old, but never at his house but 
twice. Witness first knew Hunter whe'n he was a school boy; 
bo{Lrding st William Jemerson's. After witness ,grew up, he 
and Hunter .met frequently at T^tryersvilje. . The last time he 
3aw him was in 1840 or 1B45. Witness was riding by:Hui^- 
4er!s fi^Id; where his hands were plojring near the fence. Wil- 
liam Hunter was sitting on tke fenee. .Witnessed* to him,' 
you otight tp have an overseer. TesJ^ator. rejAied, I'll .be rot. if 
1 ciswi get a man that will do; witness r£|)lied, ^ou^hare got 
no body to givfe your property to,- but uncle' Ciarley— alluding 
to his brother^ Charled Hunter. ^ He said, I have got somebody^ 
I have made a wilLand given, my negroes to Jfemerson Walker, 
You haVe?»saidI; he replifed^ ye^.' Witneset then said, whit 
the hell and damnation did yqu do that for ? You had better 
h^ve given them tot me or some poor person^ . Te^tatiwr repli^ 
that Jemerson Walker was the* son of his, wife^'s favorite grand- 
child, and hd did not ^ant bis negjroes dividpdr— hehad never 
bought a negro, and he. never wanted ^etfy divided — ^that 
Cl^arles Walker's wife was the favorite grand-child 9f his, tea-* 
tator% wife, and all the negroes icamct frpm ^e Ji^merBpns. 
) WitnesET t(4d Hunter he thought he once hada young num th«k 
suited him well ; he ireplied^^he thought so tod; but thai Horn- 
phf ey had got so that he wanted him .to,do his way and b^"}iad to 
.lea\e. Witnesa knew Mob. Wa^ef ; h^^ i^ent to schoo^ with 
her. WilHam Hunter said, on that iay^ thatl^e lovefd CSbpi'les 
Walker's first wife mo^-e than any of tbp fawily oCJ[BDaeJ- 
sons. Witness resides in Pklaski County; did not see W^tab 
Hunter very frequently. -He .lives, about fifteen, miles, firoiu 
TarvetsviUe, but business called, him there. 

Thomas Glttver: Testifiefl he knew William Hunter. ;bal*, 
ndt intimately. - He thinks he had intellect enough to trailaaet 
ordinary busiqe^. ' He did attend yto and ^erintend his own 
pli^ntation; witness ba^ seen testator in the town ofMariotf^ 
buying negro shoes; he had mihd enough to^ake .a will^ 
^ome two or three years bef9re he died, testator told ^fritoeea, 
goijig hoo^e fi-om Murion^ that h^ heA flibre g^i^ikif'fvt 



■ ■ I ' 

* Walker, exV, vs, Hanter ei aL 

1' ' ' ■ ■ ■ ' ■ 

^ Ohatles Walker's first wife than every body else, and that ob- 
ihat accoant he had given his negroes to her son ; and for the 
additional reason, that he did not want the negroes to be scat- 
ter.ed; witness never was at William Hunter's house ; be does 
not think Hunter was a man of strong mind ; he has seen men* 
of weaker and stronger mind ; he does not know of testator's 
baving any particular partiality.; he said he could not bear the * 
i(}ea of baving bis negroes scattered ; he had great fricn^hip 
for, Charles Walker. 

Here the testimony closed on both sides, and Counsel for 
the propounder of the will asked the Court to give in charge • 
to the Jury the following instructions, us the law of the case, 
and which are hereto appended, and numbered from 1 to 16. 

But the Court refused to give in charge all the requests as 
made, but proceeded to charge the Jury as follows, and i^* 
hereto appended J 

The Counsel for executor requested the Court to charge the* 

Jwy— ... 

Ist. .That the execution of the will is sufficiently ptoved by 
an attesting witncJBS, who swears that be saw the t^o other* 
witnesses sign and subscribe the will produced, in his presence/ 
and pigned, and subscribed in the presence of the' testator, and 
by his request, and in ffresence of each other, and that one of 
Ibose, subscribing witnesses is dead, and the other gone off out 
the State, and that after inquiry, he has not been heard of. 

2d. That in the case t)f wills, where a witness has gone ofi'^' 
from the neighborhood and abroad, and has never since been 
beard of, the signature and hand-writing of such subscribing 
witness may be proved by another attesting witness, as in case 
of a deed. * * ' 

3d. That the Counsel for caveator, on appeal, having permit- 
ted, without objection, after tbe testitnohy given by David' 
Walker, an attesting witness, the will to be read to the Jury as 
tbe will of William Hunter,* cannot be permitted now, and to 






# 



! * . . 

I • ' • 

mp •aU?lftBME COUiKT. OF QBOSGIA. 

■ I I ^-^— II . ^ ' — ^^— j*^— ^-^ 

Walker, ex'r, i^«j Hunter ei al, • • • 

Ihe Jury, to make the objection that |;he paper is notsiifficlent- ^ 
tj proved, and as required by their citation. 

4th. That if, from tl^e eyidence, the Jury believe that Wm. 
Hunter had sufficient «ense to transact the common buaineas of 
iifo, he had capacity enough to make a wiU ; and his being 
cap]^iciou9 in the disposition of his property will not invalidate 
iis will. 

5,th. That a lower degree of intellect is requisite to nutke a 
will, than to make a conf rac,t. 

6th. That if Wm. &unter had, at the time of makin^ his 

*wi\l, mind enough to know that he was giying property to hi& 

\>rother,'Gharles Hunter, and to Wm. Jemerson Walker, he ha(}, 

in Ia,w, capacity enough to enable him to ma^e a will. .• • 

7th. That the law does not measure the extent of the un- 
4orstanding of a^testfitor. Th^at unless, under the^testimohy, it 
ipp^ars to the Jury that William Hunter was .totally deprived 
of reason, he had mental capacity enough to- make this will ; 
^^d .as he is the lawful disposer of his property, his will stamds 
as a reason for his actions. 

t 

8th, That; ^ i^aan s capacity may be perfect to make a wi]I 
&nd yet very *^iadequate to the management of otter business; 
as for instance, to make a contract for the purchase or sale of 
property. 

. 9th. That a lower degree of intellect is necessary to mal^ a . 
w31 than to make a contract — 'that a mere glimmering of rea- 
son is suffici^it. , , . . * 

10th. That it is not necessary, yi order ^to establish a wiU^ 
tibftt the* executor, .or person , claiming under the will, should 
nrove that the wrll was read over to the testator, in the jpces*^ 
ence of the attesting or otber witness. 

ll^th. That th.e law presumes, in general, ^hat thp will waa 
read by or to th^ testator. 

ISth. That liajrid Walker and Thomas D. Wajker,the Ijrolih. 
ers of the exeon^tor of the will, and attesting witnesses to fix 
will, are competent ^nd credible witnesses in law,, and thAt^y 
reasod of their relationship to Charles Walker, the executorV 
no stain necessarily attaches -to the testimony of dathrel&ti(His». 



MACON, FEBRUARY TERM, 1855. . 887 

Walker, ex'r, vt. Hunter et at, 

» ' * 

13th. That the opinion of witnesses as to the capacity of a 
testator, or in reference to any undue influence over him. are 
entitled to little oi^ no regard, unless they are supported hj 
good reasons, founded on the facts which warrant them in tho 
opinion' of the Jury. 

14lh. That fraud is never to he presumed*. That when cir- 
'Cunistances are relied on to establish its existence they should 
be so strong, when combitled and examined, as to sat^fy the 
Jury of the existence of the fact they are adduced to establ!^. 
That it will not do if they affect the judgment with nothing 
more than doubt and suspicion. 

. ^5th. That unless the Jury are satisfied from the testimony* 
vdl the case, thlit it has been proved that Wm. HuAter made the 
will in controversy through constraint or fear ; or ^nder com- 
pulsion or threat; without freedom of person or mind;; or 
made it through excessive idaportunity, extorting from him, the 
said Wm. Hunter, what he was unwilling to grant or give, and 
which He had not firmness of mind or ability to withhold ; no 
such undue influence is established, or can be established, by 
other means or modes of proof to authorize aAy Court or Jury 
to set, aside the will of said Wm. Hunter, on that ground. 

16th. That if the Jury believe frbm the testimony in the 
case, that Wm.t Hunter had mind enough to make a will on the 
16lh November, 1839 ; that the will was formally executed by 
•hhn and attested, as the law directs ; that he had volition, de- 
sign, purpose, intention to dispose of his property by the will 
ak he has done, they are bound to fin i in favor of the will; and 
that no tribunal can pronounce against it because of its disap- 
probation, however strong^ of the dispositions made by the tes-^ 
tAtor of his property. 

The Court charged the Jury as follows: 

The^* cause you are called dn to try is on the last wUl and 
testament of William Hunter, deceased. Charles Walker alle- 
ges that this paper is the will of William Hunter, atnd thatlid 
is^he ex^ci^tor therein named ; and asks that you, by yeu|^ 
verdict, should so declare it, and admit *it to re«oid. I&e ca* 



889 . SUPREME COURT OF GEORGIA-. 

Walker,' ex'r, m. Hunter et eU. ^ 

veators deny, in fact and in law, that it is the will of deceased, 
It is a right which the law gives to every individual of sound 
and disposing mind and memory, unless under legal disability 
to dispose of his property, by last will and testament, in ' such 
manner and to whom he pleases, if he contravenes no rule of 
law in such disposition. It is immaterial how repugnant his 
disposition* may be to our ideas 'of propriety and to the claims* 
of bleod, if he acts without restraint j and freely and voluntarily 
wUls^ 'being competent so to do, his act shall stand-^he has 
only exercised his right» under the law. If, however, he is in- 
competent to make a will, froin mental imbecility, or should 
.-execute one, influenced by fraiid, duress or force, it will not^ in 
l^j be allowed to stand, because such an instrument would ndt,' 
in fact, be the will of the "pretended testator ; it is not the &ee 
and voluntary act of his mind, but the will of another : not that 
of the alleged' testator. 

• This paper was originally produced in the Court of Ordinaty, 
aiid admitted to probate, in i^hat is called common fonn, by 
€[harles Walker, the person or one therein named as executor. 
¥hia probate in' common form is an ex parte proceedhig, and is 
not conclusive ; for in comuion form it is provable on the oath 
of the executor and one witness, without notice to the parties in 
interest. But after this, withih a certain time 4iihited by law, 
it is competent for the executor, himself, to proceed to its proof 
in solemn form, by an examination of witnesses before all those* 
interested, to whom previdus notice is to be given; or for any 
party in interest to call on the executor to bring in the will ana 
prove it by an examination of the witnesses before all the par- 
ties, who have a right all to be present, to cix)S8-6xami&e the 
witnesses, and produce witnesses' in opposition to the alleged 
will, all having any interest in the question^ being previoiffily 
notified of the proceedings! 

In this case, the heirs at law off William Hunter have ber^ 
t^fbre called on Mr. Walker to prove this w31 in solemn form 
before the Ordinary of this county — ^he has proceeded so to do. 
And, on hearing the proof in th^ c^use, his Honor,,the Or^' 
nary of Twiggs County, passed an order and judgment in fkrit 






. MACON, FEBRUARY TERM, 1855. 889 

Walker, ez'r, m. Hunter et al, 

of the validity of the will, and admitted the same to probate in 
solemn form ; from which judgment of the Ordinary the heirs 
at law of William Hunter have appealed to this Court. That^ 
appeal brings the case before you for decision. 

The question to be settled by you now is, whether this paper 
offered by Mr. Walker, shall be established by your verdict as 
tiie last wil} and testament of William Hunter, deceased. This 
you are to determine, irrespective of any thing which has here- 
tofore been done judicially in the premises ; but you are to de- 
termine this issue on the evidence before you, applying thereto 
such rules of law as shall be given you in charge by the Court. 

The instructions prayed by the parties on either side are so 
fcilly and cover so fully all the points i^i the case, that I shall, 
in the charge, confine myself to these instructions — either to 
giving them as prayed for, refusing or qualifying them, as in 
my judgment may be right. 

And the first point made is, as to the manner in which th^ 
execution of this paper, itself, has been proven before you. 
Only one of the subscribing witnesses, to- wit: Mr. David 
Walker, bus been produced oh the stand. The heirs at law 
call on the Court to charge, that it is ." the duty of the execu- 
tor called on to prove a will in solemn form, to produce the 
subscribing witnesses thereto, and prove the testable capacity 
acnd testamentaiy intentions of the testator." 

Counsel for the propounder, Charles Walker, requests the 
Court to charge — 

That the execution of the will is suflSciently proved by ai{ 
attesting witness, who swear's that he saw the two other wit- 
nesses sign and subscribe the will produced, in his presence, 
and signed and subscribed in the presence of the testator, and 
by his request arid in the presence of each other, and that one 
of the subscribing witnesses is dead, and the other gone off out 
of the State, and, that, after inquiry, he has not been heard of. 

On the one side it is required that all the witnesses be pro- 
duced, or proof of the execution fails. On the other, that one 
is sufficient J and on his testimony the Jury must set up the 
wift. 'T^he heirs at law say but one witness has been produced 



» 



890 SUPREME COURT OP GEORGIA. 

Walker, ei'r, ot. Hanter et al. 

and s\forn before the Jury; there are three to the paper; the 
Idw requires all shall be produced and dworn ; jou must fin€ 
against the will ; the executor has failed even to prove its 
execution. ' The propounder says : You must' decree in favor 
of th6 will, because one subscribing witness has sworn before 
you that he saw the others sign ; they signed in the presence 
of the testator and each other, and at testator's request; one 
is dead, the other gone, and, after inquiry, cannot be found. 

In my opinion, the law idnot as contended for by either party, 
but that the true rule lies between them. The very object of 
proving a will in solemn form, is to have a thorough investiga- 
tion*, because the decision predicated thereon is to be final and 
conclusive, as to the character of the paper. It is therefor<^ 
obviously the duty of the person setting it up, to produce all 
the evidence in his power or custody, which establishes itS'H^a* 
lidity ; and his failure to do so would insure defeat. An 
executor proposing, therefore, to prove a willln solemn form, 
would be compelled to produce all the subs(!ribing witnesses, if 
in his power to do so. But if it is impossible for him so to do, 
shaH the will utterly fail and an intestacy be declared ? I think 
not. I am of the opinion that its execution may be proven on the 
testimohy of one or more subscribing witnesses, and what, ih 
law, is called the adminicular proofs. But the impossibility of 
producing £he others must be clearly and fully made, to the ' 
satisfaction* of the Jury. Yotl are not necessarily bound to set 
up this paper as a will, on the testimony of Diavid Walker 
alone, because you may not be satisfied with tl^e proofs, in aid 
of his testimony offered by the executor. The -death of Thotn- 
as Walker, and his. hand-writing, and the hand- writing of *Lee, 
you may think, might also have beeh proven by other persons, 
and this i^ouM have been in aid of the testiimony of the ohe 
subscribing witness, Alsp, yotr may not be satisfied tflkt the 
other witness, Lee, could not have been produced by the. ex- 
ecutor, after proper effort made. If you shoidd not be, t^eil 
you would be at liberty to find against the execution of tl^e in- 
strument, in the opinion of the Court ; and therefore, liie 
Court deelifes to ch^ge you as requested; and in tfte> Mbr 



MACON, FEBRUARY TERM, 1855. 891 

Walkei, ez'r, v«. Hunter et aL 

goage as requested, of the Counsel for Charles Walker. But 
on the other hand, if you are fully satisfied, from the evidence 
before you, that Thopias Walker, one of the subscribing wit- 
nesses to this paper, is dead; that Lee, the other, is out of 
tiie jurisdiction of the Court, and that it is not in the power of 
Walker to^have produced him, and that he has made all rea* 
aonable efforts so to do ; furthermore, that it has been proveu 
by other witnesses, that the deceased intended to make a will 
such as this, before it was made ; and that afterwards, he had 
made such a one, (this species of proof being adminicular, as I '• 
understand the term). And furthermore, from all the facts in 
evidence before you, you be satisfied that the testimony of Da- 
vid Walker is supported, aided and corroborated, you will be 
justified in finding, by your verdict, the execution, itBelf^ of the 
papery as a will^ has been sufficiently proven ; and therefore, 
i refuse to charge in the language as requested by the heirs at 
law of the deceased. This point seems not to have been antici- 
pated until the trial. Little or no direct authority has been 
produced. The Court has therefore pharged the Jury accord- 
ing to the best of its Mnpressions, but with some doubt. 
' As to the latter part of the request of the heirs ^ law, that 
the testator's capacity and testamentary intentions must be 
proved by the executor, the Jury are charged, that this duty 
does devolve on the executor ; and on his failure to make this 
. proof, he is defeated. , As to what constitutes testable capaci^ 
ty, it .will be explained hereafter; and as to testamentary in- 
tentions, his design to make a triY^must appear at the time he 
execute^ the paper purporting to be his will. The. evidence^ 
on this point, is before you for your consideration. , 

Again, the heirs at law request the Court to charge — 
^^ That, a person has no right, and it is unlawful for him, to 
ipove a testator to make him his executor or give his goods, 
when the testator is a person of weak judgment and easy to 
b^persuadeid, and the legacy great.'' 

1 ^m satisfied, that this is a correct rule of law, and give it to 
jou in charge as requested. If you l^lieye, from the evidence, 
that t^e deceased was a person 9f weak judgment, and easily to* 



I 



892 SUPREME COUET OF GEORGIA. 

Walker, ez'r, vt. Hunter et al, 

he persuaded, and that Walker moved him to make him, Walk- 
er, bis executor, and that the legacy to him or his children was 
great, the Jury are at liberty to set aside the will. It must be 
the free and voluntary act of the mind of the testator, which it 
is very obvious it could not be, if the pretended testator, under 
disabilities such as these, was moved and incited by another ta 
will in his favor. 

Again, they request me to charge — 

" That when the testator is circumvented by fraud, the testa- 
'ment is void and of no force.'* 

The Court most cheerfully gives you this rule in charge, to * 
the full extent of the request. If you are of opinion, from the 
evidence, that the alleged testator in this case was circumvent- 
ed by fraud, it makes no difference who was the actor in the 
fraud, it vitiates the whole will : it cannot be established as the. 
will of the deceased, if it is the fruit of fraud practiced on him. 

And again — 

" That fraud in obtaining a will, like fraud in other oases, 
though not to be presumed, may be proved by circumstances.*' 

This also is undoubtedly a sound ruje of law. It is often- 
times impossible to prove the existence of fraud positively: '*it 
lurks in the dark," as it is sometimes said, but a well connect- 
ed chain' of circumstances may establish beyond doubt its iden- 
tity — its existence. If the Jury are satisfied, from the circum- 
stances in evidence before them, that fraud has been perpetra- 
ted on the deceased, to induce him to make this instrument as 
his will, they may act on convictions thus derived, though they 
have no positive proof of the fact. And to enable you to deter? 
pine for yourselves this question, all the facts connected with 
this tra|[isaction are before you. 

Again, they request me to charge you-r. 

^' That in cases of undue influence and imposition, confirma- 
tion of the act does not remove the imputation.** 

I am not prepared to go the whole length of this request. 
It needs some qualification, in my opinion. The confirmation . 
of an act, done undue influence aad imposition, of course 
is a nullity, if the influence and imposition exist at the time of 






MACOK, FEBRtJART ^RM, 18S8, S» 



talker, ex'r, m. flaater it cU, 



-•^-*- 



tite confinnatioD ; and perfaBps a presumption in &Tor of it9 

fzialenee, at that time, is raised. But if it bo shown, Aat am 

' act done under undue influence and imposition, afterwards, and 

* when entirely r^moyed from aU nndtie inflnenee, and aware of' 
tlie fi^rmer imposition, the actor oonfirms his previous act, hia 
eonfirmation does remoye the imputation. But if ibe ev> 
idence eftabUsbes undue influence and imposition, and nothing 
but the simple act 6f confiroKitipn, without diowing under -whai 
cjrcumstanoes the act of eenfirmation was made, such confir- * 
VHCtion does w>t remove the imputation, because the Inftnence ai 
eopposed to reroaia. Thei^efbre, if the Jury ^uld think, fromr 
ibe evtdence, that William Hunter executed thid paper as bis 
wiU, under undue influence and imposition, and the evidenoe 
dibuld also -show that afterwards he .confirmed the act, euc)i 
evident of confirmatioii shall not remove the imputation. But 
{f the evidence shows that the confirmation was free from in* . 

' flo^ce or itiflfposition, with a full knowledge of his position and 
ii$ rj^ts, such an net would give vitality to his former act, . 
and remove aH imputation. 

Again, on- the other side, Counsel for Charles Walker rcr 
%oest^ the Court to charge — 

That in the case of wills, where a witness has gone off from* 
Jt^ nei^bofhood and abroad, i^nd has dever sinee been beard 

* «^* thp signature and hand-writing of such subscribing witness 
nay be proved by another attesting* witness, as in case ^f a 

%dt^. 

' .The Jury have-doubtless understood, from what I have al- 
jrea4y said, that I do not regard-this proof as sufficient, withoul 
,-^ kiA of tl^e ajmtiiicular proofs or oir^mmstdnees. If this proof 
' a^nds alone, in ,the opinion of the Jury, then the execution of 
^ wOl, in the Coiurt*s opinion,, is not oifiiciently provto; but , 
flBtpported (if the Jury think it Is) by other facts and ciroumT 
'^ItonceBy It may be sufficient to admit the wiU to probate. The • 
<kniH cannot but remark, that this, method of proving the si^- 
myuire knd hazid*writing ot the absent witness is objeotionahte 
'-'i-do^ Eot^Btren^then the witness sworn — and the neglect to- 



'. • , • • 



i ♦ * 



t • 



894 _ SUttUBME^COtTRT OF GEORGIAl « 

Walker, ex'r, iw. Honter etal, . ' - 

prove by others the hand-Vrrituig of the absent witness, is aa 
adminicular circumstance in proof against ^e execntaon of Uie- 

Again th^ request me to charge — 

'^ That the Counsel for caveator on appeal, ha#^ permitted 
irithout oljjection,' after the testimony given by David Wafter, 
an attesting "witntes, <]ie wilt to be read to the ^ury as the 
will of William Hunter, cannot be permitted new, and -to tW 

* Jury, tfi make the objection, that the paper is tioit suffieient^ 
■proved, and as required by their citation.*' 

I decline to give this request in charge to the Jury. 'The 

. contrary thereof id tibe law, il^ the opinion pf the Court- The 

execution of the will is one of the material facts the exeeuter 

\ is called oh to prove in solemn form before this. Jnry ; ahd ft 

is for the Jury to say now, by their .^verdict, whetHer he h^ 

• done sd agreeably to the requirenrenls of the law. Its proper 
execution is a mixed question of law and fact,' and- the proef . 

. • lias been submitted and the issue thereon fermed. The Court 

hus given to the Jury its instructions on the law arising «nder 

this head, and it is the province of the Jurj^ to apply the fkcts 

in evidence to these rules of law ; and as they ftiay detjkiadri^ 

*^o to find. ' • * • . 

Again, th^ reque^fc — * - i . • • . . . 

" That if, from the evidence, the Jury believe that ^ft$t. 

Hunter had sufficient sense to transact the common busineasef 

life, he had capacity enough to make a will ; and his ' behl^ 

' oapricious in the disposition of his property, will not niviaKdale 

his wilL * • , . ,* 

^That a lower degree of intellect is reqmsitQ to mii^e a wfl 

.thta to toake a contraTct. A • / \ 

"That if Wm. Hunter had, at tha tiifie of fliakihg W^'wa;^ 

^ix^d enough to know that be was giving property to ^has . hfth- 

* I -tiier, Charles Huntfer and to*Mr. Jemerson Wailker^he-li«d|a 

law, capacity enough to enable him to rxmke a wiH. . 

'^That tho law does not measure the e^ttent of .the lUMbK 
* standing of a testator. That unless, under the*teiAiitteiiy,*it 
appear to the Jury, that Wm. Bunter "wad .tot^Uj^ d^fait^ aT 



tfAOOK, FBBRUAE7 X&RM, 1855. 89^- 

Walker, ex'r, vs, Hanter et oL ' 
I 

^^»^— ^i^— L I I I ■ II , I ■ I ■ I 1 M 

jreason, he had meatal capacity enoogh to make this will ; and • 
«8 he is the lawful disposer of his property, his will stands as a . 
leason for his actions. 

^' That a jiaa*8 t^apaci^ may be perfect to make a will, and 
jetj very inadequate to the management of other busii^ess ; m 
tor instance, to make a contract for the pnrehase or sale of 
IHTOperty. 

^* That a lower degree of int^lect is necessary to make • * 
will than to malce a contract; that a* mere gli)]^^ing of rea* 
son ia Buffici^t." 

^ese, gentlemen, in the opinion of the Courts are established 
roles of Iffw in reference to. testable capacity. Ind»ed, il • 
is believed that the Gounsid has copied these requeals verbatwi, 
fix>m opinions delivered by our Supreme Oomrt^ in cases m 
whit)H the question of capacity was rsdsed. They are ihev^*- 
fore absolutely binding on this Ceurt and Jury. But the 
•^GpuQsel for the heirs at law, has notified you i^ the ComA 
also, that they da not contend that the deceased bad netiMV^ 
tal capacity sufficient to make a will ; they rest their vpposU 
tion on. the gro^d of undue influence and im|>06ition, he- being 
« person of weak mind and judgment. 

I have already informed you, that the capricious maDn,er in 
'^hich a testator may dispose of his property, does not invali- 
date his wiUj if he is otherwise competent to will. Under the 
law, he has the right to make his own will ; ^id.it shall stand, 
aHhoughnot in conformity to our notions, of propriety, justice, • 
or the claims of kindred. 

Again, they request me to charge-^ 

'" That it is not necessary, in order to estabUsh a will, thrt 
the executor or person claiming under the "(till, should prove 
that the will was rejetd over to the testator, in the presence of 
l3ie attesting or other witness. 

^^ That the law presumes, in general^ that the will was read 
tgr or to the testator." 

Toa are instructed, gendemen,. thai this request emboiUv' 
.tire ciorrect role of law on this subject. The testator is pr»- 
MBtodfto have t^ the wiU ; and therefbr^ k ianot neocBi^^j 



• 



#8 -SXTPREMB COURT OF tfBOBGLL : ^ 

Walker, ex'r, V9. Hunter ^ id, 

. ' . *4 

* * 

• that it 6fa«uld be proven to have Heen read over to testates ia 
presence of the witnesses. 

Again, thej reqiaest the Court to oharge — 

* '^ That David Walker and Thomaa D. Walk«r, the brothtfS 
of the exeeuiior of the will, and attesting wit|ie8ses tp ike wiU^ 
«re oaBpetent aod x^redlble witnesses, in law ; and th^t by 
season of their relationship to Charlea, Wal^r, the - eKecnfton^ 

' ^fo st^\n mcessarily attaches t(>'the testimoiiy of a^h^ielaitions/^ 

The Ooort is (vf opinion that they are certainiy tsonpeteat 

witaess^s^ and that theif relationship to Chairles W^^ei; the, 

. «^eci|tory the party to the fait, does not. neoeasarily staki tiidlr 
testimony. It is, however,, for. the Jury to detevmine what de- 
gree of wvight and oredit they ' think dtK to the testimony of 
the witness or witnesses ; and the fa6<t of relationship -by the 
witness to the party, ought to be coosideved'by the Jury, in 
ahiving at a conclusion ef ^stim^te of the credit due to the 
winese, together with every qther qircumstanoe or fact in evi- 
dence befofo them, bearing on the question cff credibility. 

Again, the Court is requested to oharge — f 

* ^ That the opinion of witnesses, ais to the capacity of a tes- 
tator, or in reference to any undue influence over him, are en- 
titled to little or no regard, unless they are supported by .good 

, reasons, foun^ded on the fkcts which waihrant ll^em in the opin- 
ion of the Jury/' ' 

' In the opinion of the Court, this is a reasonable and sound 
Tule. The opinion' of a witness, merely as an opinion^ is worth 
but little — -perhaps wholly incompetent testimony y Tint when 
liceompained with^all the facts and reasons on which diat opin? 
ion is predicated, the Jury ent6rtain^nbt jhe opinion, itself, but 
the fftot, itx order to see whether they arrive at the saine o» a 
clitferent conclusion, agreeable to the legitima^ efiects. thereof. 

Again, 'the Court is requested to charge — 

'^ That fraud is neyer to be presumed ; ^t wheb cinmqh 
^l^noes ane relied on to establish its esist^ftce> they rfi^old he 
4M stiQAg; jfhen combined and exMnUied^ tis.to 9qU^ ihfjmy 
.of the Qwten^e of' thq faktt they «re ad^paed to . egjjpjiliafc, ■ 



I* 



MACON, FEBRUARY TERM, 1856. 8St 



^ > 1 



J. 



Walker, ex% m. Hunter et oL 



* 'Xbat it wiH not do if they affect the judgment with nothing 
more than doubt and suspicion." 

' The J1U7- are instructed in favor of Xl^ reqfiest^ in its fnU 
extept, as- prayed for. If the circumstances create in the 
ttmds of the Jury only a dotbt or suspicion of frand, they are 
B0% to presmne* fraud. They must be satisfied in their minds, 
ofthe existence of ihe fraud, from all the circmsstances ih evi-^ 
«4ence before them. 

Again, it is requested that the Court charge — 
*^ That unless t^e Jury are satisfied from the tesUmony in 
the case, that it has been proven that Wm. Hunter made the 
mH in oOnlrcversy dnrough constraint or fear ; or under coQti- • 

* pulsion or threat ; withQutfreedom of person or mind; or made 
itrtfarougfa exc^mV^- importunity, extorting from him, the said 
Wm. HuQter, what he was im willing to grant or give, and 
whieh hb had not firtnness 'of mi^d or ability to withhold. No 
^ofa lindue infltienceiB established, or can be established, by 
ifthei ifiean's or modes of prpof to authorize any Court or Jury 
to set aside the will, of said Wm. Hunter on that grouncl*'* 

Again, and lastly, the Court ia required to charge — 
■ '^ That if the Jury believe,, fron^ the testimony in t&e oase, 
\tjiat Wm. Hunteir had mind enough to make a wUl on the 16th 
November, 1839; that the will was formally executed by him 
avid attested as the law directs; that he Bad volition, desi^p^ « 
{jorpose, intention to dispose of his property by the will as he 
Ima done, they, are bound ' to find in favor, of the will ; and 
that no tribunal can prpuQunce against it because of its di8^{^ 
pvobat»on, however strong y of the dispositions made by the tes- 
taW of his property." , ■ 

You therefore see that it will be your duty^ on this trial and 
ilivestigatioQ, to defcermine — • 

• Ist. Whether, from the evidenee, and the law applied there* 
• toad given you in charge, this paper has been prQit>erly and le- 
jaUy execi^ted. Jf on tl^is point you ar^ satisfied with the teff- . 
j^ony, then you will see whetbei the t^statofr, at the time the • 
vqHl was made, was of sound,, disposing mind and mtemory, as 
6li^l apftfttf to yo^ frgfu* the evidence and • t^c ' law, as given 



• • 



498 . SUPREME COURT OP GEDBSEHa.' 

Walker, ex'r, Mw flimter ei aL 

* I ■ ■ ■ ■ ■ , f . „ ■ ■ I ' ' I ' ' . ■ II 1 ■ 

you in charge on this branch of the iaqniry. You intt dien - 
IkSG^rtainy also, from the eyidenoe, whe^r the testator ejceev- 
ted the alleged will^ freely and voluntarily; Tfit^Cller i^- was 
ttie ^et of his own mind to make this will ; to mak^ it as -it ap^ 
pears here before you ; and whether he ^d .so exeeimte^ ft^ free 
.from all illegal, and imjnroper contrd'or cestrwii orjer him, as 
defined by the rules of taw laid down for yonrguidance undijjr 
this head of inquiry^ And as youbMiems 'fremllid.eTideaM^ 
80 declare by your verdict^ 

• The Jury retired and foiufd in ftivor of the wiM^ de- 
• daring it the last will and testament of WiUiam HuBt^,^ dofy 
jwoved, and, entitled to record. * - 

When the €ounsel for the careator then and the^e, doiiiig 
tlie said March Term, 1S54, of the Twiggs Supeci<Nr Coorl^ 
moved for a new trial in said cause^ up(m the fbUowiDg gtowb^ 
Ao wit; '^ . ^ 

Ist. That the Court erred in deciding that respobdeni^ 
Counsel had the right, in law, to open and conclude the args* 
,ment before the Jury in safd^eause. . ^ . 

2d. Because the said respondent failed* to prove in solemn, 
fbrm the paper proven in cojimbn-form, to be the^dtt of Wiii 

liam Hunter, deceased, the testator. 

. * * 

3d. Because the said paper wa;e not proven ta be the trill ef 
the said 'William Hunter,, deceased. ^^ 

4th. Because the verdict of the Jury wascontkary to evt» 
d^ce and the weight of eridence. ' i 

5th. Because the verdict of the Jury wa^ contrary to 4ki 
charge o6 the Court. 

6tb. Because the verdict of the Jury was contrary to law. 

7th. Because the Court erred in itS'Charge^ 

Sthi Because, while the cause was pending before the Special 
Jury^ £. E. Crocker, one of the Counsel for the respondraA^ m, 
4be night o^the 2Sd March last* entertained at his lionMi twd4rf' 
the special Jury to whom the said cause was submitte«l for tfi||^ 
afnd the respondent^ Charles Walker. • , * 

9tlu. Beeaude a paper was found it th^ vobm of tht 0|tfEnaMK» 



MACON, PEBRtlART TERM, 1855. 8d^ 

. " ■ ■ ■ ■ I 

Walker, ez'r, «t. Hunter et ai, 

— » ■ II i i '■ - ■■■■■■■ I II I ' ■ ■ I ; I ■.II I ,i 

fj, by the Jury, to which said Jory^ re^ed to make up their ver* 
diet, of which the following is a copy, which waa calculated to- 
mifidireci the Jury as to the true issue before them, to-wit: 

^^ The burden of the effort made by Colqwkt before the Jury; . 
fe lo show fraud bt, the part of Widl^er in Charles Hunter's ' 
will, which is not the issue before the Jm*y. Nothing relating 
to Charles Hunter's will ought to be allowed, but the issue—* 
^as* William Hunter capable, in law, to make a will. The Jury 
win mj>arttcular act upon the evidence in the case, and' the* 
law given them in charge. I fear the erroneous impression is. 
mow made in the mind of two or more of the Jury." 

* 

The Oourt, after hearing argument on the above motion, and 
considering the same, and being of opinion that respondent's 
Counsel had the right^ in law,'to open and conclude the argument 
before the Jury in said cause, over-ruled the first ground taken * 
In the motion for a new trial, and refused to grant a; new trial 
^>n that ground. 

But the Court being of^opinion that tiie said Churls Walk* 
. er, the exeeutor and respondent, failed to prove the will of the 
.said" William Hunter, the said testator, in solemn 'form, being * 
Ae paper proven in common fiyHn, tO be the will of the said 
William Hunter, the' said testator, and being of the opini<«i 
. 4tiBt the execution of said will was not sufficiently proven ; (and 
ihe Court being farther of opinion, that the verdict of the Jury 
in said cause was contrary to evidence and the weight of evi* 
dence, and was contrary to' the charge of the Court, and con-'- 
^^sxy to law ; and the Court being further of opinion, that the* 
feet, that while the t)ause was pending before the Special Ju- 
ry, E. E. Crocker, Esq. one, of the Coun&el for respondent, ou 
the night of the twenty-third March, entertained at his houses 
two of the Speeial Jury to i*hom the said cause was submitted, 
and the re^ondent, Charles Walker, was illegal and inadmissi- 
ble in law ; and the Court being also of opinion, that the pa- 
per in the hand-i^iting of Lewis Solomon, and found by tho^ 
Jitry in ikm^nfom, was caloidated to mi^ad the Jiiry and ii^ 






• 




400 , SUPREME C6UIIT OF GEORGIA. 

. — » ,. — — . . : i 

Walker, ex'r, w. Hunter «< erf. 

fiaence their iSndmg : it was.therefore orderedand adja^Nrby 
the Court, that for tbe'Said reasons, the veirdlet of the Jury m 
said cause be set aside, aQd'a neir trial be awarded- and had in 
.Said cauElb. 
. The errors assigned were^ 
* 1st. That the Court erred in permitting David Walker to tes- 
tify about Charles Hunter and his property. 
. 2d. The Coi^t ei'red in admittbg in e^idenc^ Oharies Husfe- 
er'swin. . 1 

• 3d. It erred in admitting in evid^be the deed from' Charles 
Hunter to Charles. Walk^t*. 

4fh. It erred in admitting die testimony of ^amud Jeme»- 
•8on abput a former will of William Hunter, and the sayings ^ 
his mother. ^ 

5th. It erred in admitting ;the testimony of H-upfffixtej Jem* 
erson about the sayings of Charles Walker, long hefidre he ^tns 
executor or the will was made. 

6th. He erred in .admitting in evidence the testimcAiy of 
.Mrs. Wheat about a former will, and as. to wh&ther qiot^ 

told her. ■ . 

7th. He erred in admitting in Evidence Mrs. Lyle'e teslH 
mony as to het hearing othe^ say, and aa ta the sajitigs-Of 
Qharlep Walker before he was ex^uffOl;, or 'before, the ^wiU wfi 
]!uade. 

' 8th. He erred in admitting Jatnes Ware to' testify aa/te^Hlte 
' capacity of Charles Huilter, and about his property. ' 

9tli. He erred in admitting the testimony of Mrs. Haaetii 
about a deed made by Charles Hunteic* ' 

10th. He erred in admitting all or any of Mr. MeH6n''B tes- 
timony. . . *! 

11th. He erred in over-ruling the motion to strike out the set^ 
ond and fourth grounds in the caveat. ^ ' - / 

12th. The Court erred in sustaining the ^uotif}^ fqr » nm 
trial. . ' f ' 

13th. Tl^ Court en^d: im granting a new trial i|i skid eMfe 
' opoQ any.or eitber^iDf thegroniMki sustained ^4p ^ViMb . 



• 



UiEO€^, FBBRUABY TBRH, lidi. 4f)fl 

■ - ■ , ' ■■*>'■■■ ■ ■ 

. WAlkerj ex'r, m. HuAter a dl. 



S. T. Bailby; L L. Harris; Millsr k HajiL, &r ^i»- 
liff in ^rror. 

Scarborough; McDonald, for defieikliiDtg in error. 

By the Court. — Bbnning, J. delivering the opinion. 

• * 

Was it right to grant the new trial 7 That is the sole ques- ' 
tioii in this case. 

. The Court below put its decision granting a new ti^kl^ on « 
number of grounds, viz : That the paper propounded as the 
will of Hunter had, not been proven, in solemn form^ to be \m 

will. 

That the execution of that paper had not been sufBciently 

proven. 

That the verdict of the Jury was contrary to the evidence 
and the weight of the evidence— conti^ary to the charge of tho 
Court and contrary to law. 

That one of the Counsel for Walker entertained at his 
house one night during the trial, Walker and two of the Jury. * 

That the paper in the hand-writing of Solomon, found by 
.the Jury in their room, was calculated to mislead the Jury. 

If any one or more of these grounds were good, Whether the oth- 
ers were good or not, the new trial was properly granted, and the 
Judgment granting it ought to be affirmed. This Co^rt might, 
therefore, content itself with pointing out such of the grounds 
as it considers good, if such there are, and go no fujrther ; but 
as the decision 6f the Court below was placed on all the g^rdunds, 
it will not be improper, and probably will be best, for obvious 
reasons, eyen in case of an affi^nance, that tikis Court shall 
GOjQsider all the grounds, though it may think some only of 
ttiem . good. That, therefore, wiU b^ done. In doing it, 
^wever, the founds will be taken up in a different order fros^ 
4h%t m which they have just been stated. ^ 



• 



• • 



4(» . SUPKEME COUET OF GEORGIA. 



J^ 



Wftlker, ex*r, m. fiu&ttr tt ni. 



I i I 



Was the verdict contrary to the evidence, or to the weight 
^ die evidence ? This is th& gromnd I- shsll begin with. 

As to this ground^ the Comisel for the plaint in emnrsajy 
Irst^ that the verdict was not contrary to the evidence (»r to tl^ 
weight of the evidence ; and secondly, that if the verdict was 
contrary to either, it wis so only because a part of die evi- 
dence was illegal evidence, namely : so much as related to. 
Oharies Hunter*-^to his deed, to his will and to his jHroper^— 
, so much as related to a former will of Wm. Httnter, atidiotiie 
•ayiiigs of hi^wife, and so much as related to. the sayings ef 
Charles- Walker and others, before he. Walker, became ezeo- 
qtor, or before the trial had been idade. 

The latter of 4;hese' replies wiH be noticed first. Is it tme 
that this part of the evidence was illegal evidence ? 

The reason given by these Connsel for saying ftat the eti» . 
denoe relating to Charles Hunter^ to his proper^, to his inSL 
and to his deed, was illegal, was, that it was irrelevant; that 
it conid have nothing to do with an issue concerning a- paper 
Bfopounded as the will of another man, Wm. Hunter. 

What, then, was the issue and what the mature of the evi- 
dence in question ? 

The caveatoi*, among other things, alleged, in substance^ 
that Charles Walker, with the design of acquiring fpr him- 
self or a son, or both, the property of Wm. Hiniter, *a perso&* 
not akin to cither him or his son, by the use of undue influence 
i^nd fraudulent contrivances, induced William Hunter to make 
fhe propounded paper as his wiU ; that though, by that {Miper^ 
a portion of Wm. Hunter's property was given to Charles Hmi- 
ter ; yet, that Charles Hunter was a person of great weaknesi 
of mind, and one entirely under the influence of Charles 
Walker, and that the giving of a portion of the property »tb 
Charles Hunter, was, in effect, the same as giving that portion 
directly to Charles Walker, as was proved by the^MiI^ whick 
was, that Charles Hunter, after the death of Wm. HuAteiv 
\ partly by deed and partly by will, gave all of the porti9h of 

the property given him by Wm. Hunter's will to Ch^lito 
I Walker. This, in subslanoe, is all^;ed by the c ai^a K r« '> ; 






• • 



^*i 



- - 

Walker, ex'r, tv. Hunter et <U. 



-•-r- 



t • 



Now 80 mook of this aUeg^iion as refers to Charley Bbiater, 
Jtis property his deed rad his will^ the evidence otjeoted tft 
ibo^ 14^ his property, his deed and his will, te^da to prove. . 
This beoomes apparent by merely reading that evidence. 

The position, therefor^, that that evidence was iUegal^ .b^ 
ieaoQe irrelevant, is not well founded. 

The only reason assigned in argument, by the Counsel for 
• the prppounder of the paper, to show the evidence of Mre* 
Whe«t and Samuel Jemersop, gi^^g the sayings of their mo^ 
ther, spoken after her marriage ivilh Wm. Hunter, ip relation 
toa former will made by Wm. Hunter, to have beeki illegal, 
was, that the evidence. wfs -Hearsay — was only of the aayinjn 
of BIrs. Hwiter. 

« 'But as to Mrs. Wheat, it is not apparent that this reason ia 
^e, ifi point of fact. It i§ true^ Mrs. Wheat sworf) this ; 
.^ Witness* mother made an effort through Mr. Wheat, her SfUr 
io-ktw, eo(Vfi after* the death of Dowsipg, to get possession oif 
gaid wiU, but was informed said will could not be found amongsC 
Sfli|uire Dowsiog's papers.*' But that this contains any thii^ 
.ihatiis hei)f»ay, is fer fron^ clear. 

, And as to the evidence of Jemerson, he does, indeed, say 
this: ^* He once had a conversation with his mother, then (J^t 
wnfe of Hunter, in which she informed him, that her husband 
kad m%de a will, and had given one half of his pcoperty to hi^ 
pei^ple, und the ot)her half to her people.** But then he imr 
mediately adds this : '^ That some seven or eight years aft^ 
tl^ 4e^h of his motbery be. communicated to Wm. Hunto 
whftthis mother had told him,^nd asked him if he had made 
wok a will ? and he answered, that he had, but that since .the 
'death of his wife he had, hvtrut it.** And this addition makes 
.what had beeli the sayings of the witness* mother, become, in 
effsctf the sayings of Hunter. And any sayings of his w^QPi 
4e9al evidence. .. ^ , , 

The reason, then^ assigned by the Counsel |br the propoond- 
^, to sjiow this evidence to have been illegal, is not Bufficientf 

The sayings of Qhas. Walker, which it was argfied were ^t^r 
jfiifpl .evidence, were .those proved by Mnd Ly}e, .and one 






« 



404 eUPRBME CDUBT Og GEOBGIA. 

— ~— — ■ ' ■ -i — f- II' 

Walker^ ex'r, vm. Hiioler tt aX. • ' 

■ ^1 ■ ^ ■' ■ ■ I . I I ■ . ■ i T a i I iii^ 

proY^d by Humphrej Jemerson* And the objection to these 
eaym^ was, that they happened before the making of the.pa-« 
* per.propetnided as Himter'9 will ; and tiierefore^ before Ghas;> 
WaUcer couM have be^n executor of that will ; andso, thatl^ 
nyings, when made, were sneh^ui coiild neitfa^ be agaiist Ike- 
interest of Walker, or as could bind those claiming mider,di» 
^aper propounded as the will of Himter. 

* This ebjectien to the evidence of both of these witneaeibs, m^* 
matter of fact, exists. And as to the evifl^ce of (me of th^% 
Humpkrey JoBs^son, it is saflSci^it, as matter of law. Bnt ifr 
ir ndt so isi^ci^t as to the evidence of 4hd' other, Mrs. IMe^* 
lir her evidence is a^miissible (»i another ghmnd. The* idafv 
iugs of Ghas. Walker, to which she testifies, make* part of the 
transaction as much a part of it as does the Jkct Aat the^i 
fiaper was executed atOhaS; WaHcer's Jiouse maipe part ef itr 
VtK>se sayings are : '* that he, Wheats was interested in the d»^ 
pf^dicion bf the property, and had more jofiuence over him Aan 
any one else ; and when he nroved away somebody would get 
it, ahd that he, Mr. Walker, has as mnoh r^( to it as a&y 
one ^Ise, apart from the legal hoirS) and he would, after th^. 
removal of Mr. Wheat, nurse' the old man and get it iThe 
^onld." 

* But as to the sayings testified t<» by Humphrey Jem^-flKMi^ 
they manifestly make ido part of the tran8action-M)f anj traiuK 
action in which Walker took part. ' They.a^ merely to'tiUKf- 
feet, thafr the witness, that. Humphrey ^etnerson^ not ' Widker, 
eonld influence Hunter to gire him, Jemerson, all his p ceye t ' t/i 

They were not admissible, therefore,, as a part «dr Ae-rec 
ffistce. And that being so, having been made before WallBer 
iJeeame exedutor, they were not admissible at dl. 

* *It is, ad to this evidence, then,- of Jememon*, and Ais only, 
that the Counsel for the plaintiff in error are right in saying, 
that a part of the evidence in the ccfso' was illegal* 

• 'But this is a yery small part of the whole e^i«fectc^«-4oo 
shmll a part to wan^ant this. Court in believing that tbejtefdidt 
turned upon it. 

It r^^iains to iwy, that in the Op^ioA of tkia Oantty ill* 






MACON, FEBRUARY TERM, 185^. 405 



,AX. 



Walkei, exV, m. Hnnter «t al. 



4 • 



-•-^l 



i^-M 



Odibisd for ihe plaintiff in error do not establish their p09itit>n^ 
vk : that if the verdict was contrary to the evidence, or die^ 
might of evidence, it Iras so because a part of the evidence* 
vrasillegaL 

As to their other position on this point — the position,' thai 
the verdict was not contrary to the evidence or to the in^eight 
of the evidence, snppoifing the evidence to have been all legal, 
we cApt e es no opinioh. That we should express one is not 
naeeasary, as om other grounds; ire shall aflimi the judgment 
gtanting the new trial ; and as it is to be presumed that the 
B6W Jury, should this same evidence come before them, will, 
of themselves, rate it at its proper value. 

Xhe next of the grounds on which the Court put its jud^- 
Bient-r^pranting the new trial, iirfaich wiH foe noticed is, the 
grouawl, th«t the verdict was contrary to the eharpe oi the 
Oovrt* 

* In respecftto this ground, the Counsel for the plaintiff made 
a reply, somewhat similar to that which, as we have seen, they 
made in respect to th& ground just considered. They said tbot 
*a fMrt of the charge was law and a part not law^ and thsA 
ftbugfa the • verdict might perhaps be contrary to the latter 
pIbH, it was not contrary to the former ; and so, that the ver- 
iBct, even if contrary to such latter part, ought ilot to be dw^ 
l^^ed; 

Of the part of the charge which they insisted Was not Ibw, 
the following is a portion : ^^ An executor proposing, therefore, 
if9 prove a will in solemn fr)m, wduld be compelled to produce 
M the subscribing witnesses, if in his power to do so. But 4f 
it «r impossible for him so to do, shall the will utterly fkil, aod 
tfi* intestacy be declared ? I think not. I am of opinion that 
Hs execution may be proven on the testimony of one or more 
svAsortfaing witnesses, and what, in law, is called the.adminieu- 
larproeft. But Che impossibility of producing the others mijol 
be clearly and folly made, to the satisfaction of the Jury. 
'Sou are not necessarily bound i6 set up this paper as a will, 
6b' the: testimony of David' Watiker alone, because you may not 
¥i;iati6i0iA wMk;&e probfs in aid of hi^ testimony offered bjr 






4o& 



.« 



^SmPBEBlE COURT OP GEOMU. 



Walker, ex'r, «t. flitnter et aL 



die execator. The death of Tfaomas Walker, and hi»^and4iiir 
ting, and the hand-writing of Lee,, jou may think,^ nd^it alao 
Jiaye.b^en proven by other persoQs; and this would havei>eaB 
in aid of the testimony of the one siibBcribing witneaa. Ake^ 
you may not he satisfyDd that the oth^r witness, Lee, cobU not 
have been' produced by the executor after proper effort made* 
If you should not be, then you would be at liberty to 'find 
against tiie execution of* the instrument, 'in the cpinioii of die 
Court; and therefi^re, the Court d^clines to charge you as re- 
quested, ind in the language as requested by the' Coiaiaeljaf 
Gbas. Walker. Bu^on the other. hknd, if you are fully salii^ 
fied^ firom*tbe evidence before you, £hat Thomas Wa&er, one 
of the 'Subscribing witnesses to this paper, is dead; diatifee, 
' the other, is out. of Ihe jurisdiction of ibue Court, «^nd tbAt k li 
* not- in the power of Walker to have produced l^k% and ^JmI Jle 
made all reasonable efforts so to do ; furthermore, that it'hii 
been proven by other witnesses, that the deceased intjsuded to 
make a will such as this, before it was» mad€^ *and that a(ta^ 
wards he poade 6tte}i a one (this spfecies x>f proof beiB#adip»> 
ioulaK, as I understand the term) : and furthermore, fre«Latt 
tire i&QtR in evidence before you,. you be satisfied thatlha-te^ 
jiiony of David Walker is supported, dded and .corroborateij^ 
you w31 be Justified in finding, by youir verdioty the exeo«feii% 
«e«e7f, of the paper J aa a willy has been sufficiently proves ; $ifA 
tb^refi^e, I refused charge in the language as r^qu^flted.by 
'tbe hms at law.of the deoeased/* 

This portion of the chaiege the Court gave inatead of;OB^ 
which the Court was requested by the plaintiff to givi^ add af 
ene which it wap . requested by the defendant to ^ve. ^ Shit 
wdtkh it was requested by the defendaot'to give, waa as ibl- 
lows : ^^ that it is the duty of the^ executor called on ta pi^vt 
aw^in solemn form, to -produce the subscribing witeessee 
ibenrta^ and prove the testable, oapaeity and tastamMteiigr wt 
ten^ps of the testator/' . 

That which the Court was requested by the fdaiatiff 4o gtwi, 
iras aa f qHews : t^QSiatthe exetirtioii of- the wiE ia ynfiuiiiwi^ 
ftmed by an. attesting witneei^ wh^ ctretra t^»hhe saw Ihgjat 



^11^ 



r^>- 



• • 



MACON, FEBBUABT TBBM, 1855. 407 



m ^ M 



Wicker, ex'r, «•. Hunter el oi. 



olher mlnsflsee sign and rabsoribe the will prodneed, in bis 
piMdeiice, and aigned and subeoribcid in. the presence of the tea* 
taiDr, «nd by. his request, and ia presence of each, other, and 
dmt on^ of jthe sabscribing witnesses is dead, and the other gone 
off out of the Stale, and that .after inqnirj he has not been 
heavd of/' 

t GOnffldervkg what the Oooft charged and what it refnsed to 
diaige, we think the Court meant to declace this. to be the law^ 
viz : that in na case is the eyidence of one witness snffident t6 
•prove the execution of a will, in a proceeding to establish thj)* 
will in solemn form ; that in every case the evidence of at least 
two wftnesses ^ necessary, of which evidence, hpwever, if that 
of oh^ of the two goes Ao the main fact, th^ signing and pub- 
Hthiifig, that of the other need go no farther than to some ad* 
qlnicpUr fiE^its. We aappose, indeed, that the Court intended 
to-teil the Juvy, that in*a proceeding to establish a will in sol- 
emn form, the law which gorems as to evidence, is the gfsneral 
law of the Ecclediastioal Courts, according to which one witnesa 
does not make full proof. (1 WiAM. ExW%^ 214.) 

If we are right in this, the questions are, first, what is tibe 
mmibfrW witnesses ^wtuch the law of the Ecclesiastical Cour|8 
recpire in such a proceeding. Secondly, will other Courts^ 
idmift such a proceeding is taking plaee b^ore them, observe 
lltet \2k% whatever it is, in preference to the law which they 
use in proceedings peculiar to themselves ? 

If we make decided cases the oriterion, we cannot, with cer- 
tainty, say that it ia the law of the Ecclesiastical Courts, that 
Aey shall req;air6 more witnesses than one to the execution of* 
tf will. ■ lathe case of MoKenzie vs. YeOy (7 ^tcl. Rep. 408) 
a case which, in the opinion of the Court deciding it, depended 
upon the' evidence of bnt a single witness, the Court, it is true^ 
* refused to con^der the will proved — but the Court, according 
tp wpf understanding of what it says, puts its decision not oa 
* «ihe ground that the evidence was the evidence of only one wit- 
Ms^butonlJie ground that the evidence was, in itself, not 
^d^fblO) all the faets of the case considered. My infM^eaea 
fi^ wlkal is said'in that cass k, that if ^ce had been M tvm^ 

■••■•■ 



«M SUPffi^fiB COU»T OF GEORGIA^ 

Walker, ez'r, vt. Hunter et <d. 






tervailiiig fiiots in the case, the evidence of the one witnev 
would have been held sufficient to ^rove the will. 

And in the case of Moore vs. Payne, (2 Lee JEcel. SegSj Sir 
Q-eorge Lee said that the proof of a will is by the ju% gentkem^ 
and that by that law, one witness is sufficient — adding, howei- 
er, that in the case of only one witness, there should be aon^ 
udminicular proof to corroborate him. 3ut does the jUB. g$i^ 
Hum, I ask, recognise this doctrine of the necessilg^ of admi- 
nicnkr proof, when ther^ is but one wl^ess ? 
- Then it is beyond question the law tha^ the EcdesiaBtiqtl. 
Courts dare not, on pain of a prohibition, require more witness- 
ee than one to the {>ayment ^f a legacy, to. the execution of a 
rt^ease, to the revocation of a will, to a defence against Ikfi 
subti^action of titles, JSJiotti^, vt. Friend, (8 Mod. 2^8). 
Breedon vb. Oill, (1 lA. Moi/mondy 221.) * 

And what reason can there be for the law's ];>etng oooteiit 
with one witness in these oasQS, whioh does equally exist fbr^lp 
being content with one in the case ^f ihe probate of a will^ 

There is, however, it n^t^be admitted, in Gknlolphin's Qf^ 
phan's Legacy this passage : '^ But regularly, a eingle witneaSy 
witfaQut Qther adminicular proo{^ is not snfficic^dt t^ prove a wiQ^ 
as in the case of Qhadron agminst Marrii^ where it is said tk^ 
if the Ecclesiastical Go^rt proceed in^a nwmer th^ ik n^eft 
q>iritual and pertinent to their Court, according jU) the Civil 
LaW) although th^ir procebdings are against tl|e ruksx)f the 
Common Law, yet a prohibition does not lie« ,A^ if thejjnh 
fuse^a single witness to.|)rove a ^iUf for the, connsafice of that 
belongs to them.'' Thi9 same thing is s(^id by otf^er elemeiitaiy 
writers, and perhaps by some Judges in the course ^f a decimoD^ 
(1 Wtm. ExWiy Pt. L Ph. IV. ch 3, 9ee, 5. 18 Vin. M. 
Prohtbitiony (Q.) I doubt whether tlus position reels anywheA 
wpom a better foundation than an obiter dictum* But of diii * 
I cannot be certain, as the case of Chadron agaimt S^rrii^ ii 
reported in JVoy — a repoirt pot within my reach* , « • 

* Suppeae it, however, to rest on a deeded case,- and. ao te Jhl 
t afc en as law, how m^eh does it amount to^? «thir qmbm^i: H^ 
tlie40B^ial Cottrt8,wiIl not, in any fias4» aUf iip^nnrdi||iA |n^ 



• 

• • • 



1 



MACON, FEBRUARY TERM, 1855. , 40d 

• t * ' • « 

Walker, ex'r, m. fiunter el al, 

bibit the spiritual Courts, in a proceeding for the probate of a will 
before those Courts j from requiring more witnesses than one to 
prov'e the will. It does not amotmt to saying that the temporal 
Courts themselves, in a proceeding before them^ involving the 
proof of a will, must, in every case, require the evidence of 
more witnesses thto one to make . out the proof of the will. 
And 'if it did, it would be contradicted by a great number of 
decided cases. * * 

The redult of those decided cases is, I think, well stated by 
Oreefdeetf in his work on Evidehce, in the following words: "It 
Sfl ordinarily held sufficient, in the Courts of Common Law, to 
call one only of the eubscribing witnesseSy if he can speak tO' 
aU the circumstances of the attestation ; and it is considerecl 
^dispensable that he should be able, alone, to prove the perfect 
execution bf the will, in order to dispense with the testimony 
of the other witnesses, if they are alive and within the jurisdic- 
iaon. But in Chancery, a distbction is taken, in principle^ 
betweeki a suit by a devisee, to establish the will against the 
heir, and a bill by the heirs at law, to set aside the will for 
iriud, and to have it delivered up. For, in the former case, a 
decree in favor of the will is final and conclusive against the 
heir : but in the lalteV, after a decree against him, dismissing 
the biU, his remedies at law are still left open to him. It is* 
therefore held incumbent on the devisee, whenever he' sues to 
establish the will against the heir, to produce all the subscri- , 
bmg witnesses, if they .may be had, that the heir may have aa 
opportunity of crc^-examining them ; but where the heir snet;^- 
V> set aside the will^ this degree of strictness may, under cir^ 
cumstancei;, be dispensed with." (2 GreenL JEv. sec, 694, see. 
cases cited there. 2 Stark. Hv, 922, 92S, and cases cited. 1 
PhtU^ Hv.501.) 

The rule in the temporal Courts, then, in proceedings before^' 
ihenij ordinarily is, that no more than one of the subscribing 
wi^esses need be called, if that one is one who can speak to all . 
tije circfumstances of the attestation. ' 

Proceedings in the temporal Courts in which this rule baa 

. . VOt. XTlI-52 ' " . , 



% 



* \ 









lid SUPREME COURT OF GEORGIA. . 

Walker, ex'c, v$. Hunter .«< al. 

place, are proceedings whicli involve title to land claimed un- 
der a will, as an issue of devisaTnt vel noriy or sometimes an ac- 
tion of ejectment. In such proceedings, the party claiming 
under the will has to prove the will-^probate in the spiritual* 
Courts being only sufficient to prove a will for goods, but no* 
tp prove one for lands. 

It seems, then, that in England, in the spiritual Courts, as 
many as* two witnesses are necessary to the proof of a will — .. 
such a will as those Courts can take cognizance of; that is, one 
of goods— ^nd in the temporal X]!ourts not more than one wit-* 
ness is commonly necessary to the proof of a will — such a wiH 
as those. Courts can take cognizance of the proof of; that is, a 
will of lands. '^ 

^ This being the state of the English law,' what is the state of. 
oar law? 

By our law, the proceeding for probate, whether the will be 

one of goods or one of lands, or one of both, has to begin in the 

* Court of Ordmary, though it may pass from that Court into 

higher Courts— the Superior and the Supreme. (SdArt^ Con. 

G-a. Walker's Dig. 415. Prin. Dig. 2S1.) 

Suppose a proceeding before that Court — as there has' been 
ifc this case for the probate of isk will — a will partljr'* of goods 
and partly of lands — which rule, as to the number of witnesses 
to be required, is the Court to follow, thtft o^ the English spirit 
tual Courts, or that of the English temporal Courts — or is it to 
follow the rules of both ? These are the precis^ quostions now 
, fbr determination. 

The answer to these questions depends* on the change which' 
t&s State has made in the English law. What, then, are £hbse 
changes? Tb^y are, among otheh»,'the aboliti<te, not odlyof 
. the Eccfesiastical Courts, but of the whole Ecclesiastical estalH 
iishment ; the erection of the Court of Ordinary instead of 
those Courts ; the erection of nothing instead of that establidi^' 
ment, and the adoption of ^' the Common Laws of Bn^and^T 
Jhe Court of Ordinary is a temporal Court, and is subj^t ti^ 
Ibe supervision of the Superior. Court, and ultimately, 'to Ae- 
- .supervision o^ this Colurt — both of whi&b "^ alss' ^bMQpOMifi . ' 






MACOSr, FEBRUARY TERM, 1855. - 41t 

• ^^^—■^^^^"^■^ ' ^ - — ... _ 

Walker, ex'r, vs. Hunter et al. 

* 

Conrts — and Courts Hoder the especial government of those 

«>^ Common Laws of England*' adopted bj the State as aforesaid. 
It seems to this Court a fair inference from all this, that the 
State intended the abrogation of all those usages and rules of 
the Eoclesiastical Courts, which were peculiar to those Courts 
and which were opposed to the Common Law; and the substi- 
tation of the Commoii Law for those usages and rules — as for 
•example : the abrogation of die usages and rules by which 
those CJonrts. imposed penances^ excommunications and other 
spiritual punisjiment^ — those by. which they enforced the pay- 

. m^it of tithes and other dues to the clergy-i-those by which 
they gave redress for the injuries of spoliation, dilapidation and 

. neglect of repairing the chjorch— ^those by which they required 

■ l)ie depositions of witnesses to be taken down in writing — and 
•those by which they required, for l;he prOof of any fact, the eVi* 

. ' dence of not less .than two witnesses. • 

This view is confirmed'by the want of any attempt, on the 
part of the Courts of Ordinary or the Superior Courts, wh^ 
supervising cases, brought up .to them from the Court of Or- 
dinary; to exe]:cise or enforce any of those usages or rules. 
Xhose Courts, as far as we Jcnow, have never required depoet- 

, ' (ions to be taken down in writing, or required the evidtoce of 
at least two witnesses to every fsct or allegation in a case. Zx^ 
cases of marriage and divorce, which were, before the Bevolu- 
lioQ, oases of spiritual oogtiizance, the Superior Courts havp 
never held that, be the circumstances what they may, the evi- 
dence of at least two witnesses was essential to the proof (^ 
every matter in the cases. On the contrary, these Courts, in 
practiQe, have contented themselves with the employment, as v 
to this paiti^j^.^r^of the. rules of evidence* prescribed by the' 

* ChmimonLaw. 

AncL.the view is ^bo confirmed by the absurd, net to say 
)mu1 consequences whieh wduld f^ow from fhe a4option of the 
^H^osite msm'-^Ae view that the State did not intend for thqse 
qgiritoal usages tod ruleb to give place to the rules of the Con^ 
monliam • For in the case supposed, of a wifi of beth landg 
md' dtattde seeling pndbaie, if but -one witness could be oalled 



t 
t 



« * ' 



412* SUPRBBiE COURT OF GEORGIA. 

« 

— — — — r— r 



Walker, ex'r, vs. Huoter et aL 



by reason, say of the death of the other two or more, the Coiirty» 
governed by those usages and rules, would have to hold the^' 
will good as to the lands, but null /t^ to the chattels. And is 
it to be presumed that the State ever intended a thin^ to say 
the least, so absurd as that? 

[1.] Upon the whole,* the ^ conclusion to which this CSonrt 
jcomes is, that in the probate of wills,, the Courts of Ordinary 
and the Superior Courts, are to follow tbe rules, of .evidence 
prescribed, by the Common (iaw ifod in use in the tem{M>ral 
Oouvts of England, at the time when Georgia first adopted the 
Common Law', u^les^ .Georgia has since repealed them; and 
not the rules of evidence then in use in the spiritual Courts of 
llngland ; and. therefore, we.tliink that the Court erred in the. 
charge to the Jury under consideratiQu-r^ charge which, pA- 
wp understand it, meant to tell the Jury, that unless th^ exe^ 

• ctttion of the will was proved by the evidence of at least two • 
witnesses, one speaking to the signing and publishing, and the 
otiier to that or to some adminicular circumstances, they ^ould 
not find the eKCQutioa of the wi^ proved, w^tever they might 
tUnk of the other evidence iii the case. 

' « • y(e do not mean to say, however, that we think the founds 
%iw Iftid for the introduction of secqndiary evidence of di^ 
hapd-writing of Lee, one of the subscribing witnesses to the 
paper .propounded as a will, was sufficient. 

]$or do we* mean to say, that we think less, evideope, is ra- 
<|«ired, .when the proceeding for prdtfate is compelled by -ik% 
heir, who is adverse to the will, than when the proceeding » 
the voluntary act of the exesutor, or a legatee who is friendly 

I ,to the will. 

. Another portion of the part of the charge which the Clo«%* 
sel for the plaintiff argue pot to be law, is the fQllof[ii\g : ^^ ^Qu^ « 
a pecsoa has not the righty ^d it is unlawful for him to n^^vi 
» teetator to make him his epsecutor or give his gftfiia^ .w* m 
,the testator is a person of weak judgm e nt and ffliy .to M^tfP 
Qoad^d, and ^he legaqy great.". . ; . * . .' 

V Iht8^.althou|^it h^s Uie sanation of SwifibwnM^ ^ ts^uiak 
.li^ofei^^ b« l*^' I^ has not the .sai|0tipn of amt.<;|hto. ffiil '. 



I 



• 



« 



MAGON, FEBRUARY TERM, 1855. . 41$ 



1 > • 

- 4 '■■■■ ' *■*■ 



Walker, ez'r, vt. Hunter et al. 



miteVf or of any decision, as fkr as we know. It is contrary 
to what was said by Lu3iPKIN, J. in PotU et ok v$. RotUBy (6 
Chu 359.) That is as follows : " With respect to a will aW 
Iq^ to have been obttiined by undue inSuence, I would re<« 
mark, that it is not uidawful for a person, by honest interees- 
€ipn Mid persuasion, to {>rooure a will in favor of himself or 
aao&er ; neither is it, to induce tl^e testator, by fair and flat- 
tering, speeches ; for thoi:^ persuaskn may be employed to 
induce the dispositions in a. will, this does not amount to influ- 
ence in the legal sense." ^^On this subject as on that, with 
regard to capacity, no precise i^nd distinct line c^n be drawn. 
Suffice it to say, that the influence exercised must be an un- 
lawful importunity, on accodnt of the manner or motive of its 
^ertion, and by reason of which the testator's, mind was so 
embarraa^d and restrained in its operation^, thai he waa 
not master of his own opinions in respect to the disposition of 
\A& estate." 
' This lai^uage is very general. It says, that it is, not f^ un- 
lawful" for a person, '^ by honest intercession and persuasion^ 
to procujre a will in favor of himself or another." It makes no* 
exception of the case, when the will is procured from a person 
of " weak judgment." And we think there Is no such excep- 
tjum to be made. If the testator. '^ moved" be a person of weak 
mind, and the legacy he gives great, the effejct producedcer- 
tabtf y ought, in general^ to be a very strong pYeBumption that, 
, th0>* moviBg",was undue — was " unlawful ;" yet, the presump-. 
ilMm ougbl not to be a conclusive one. For to make.it conclu- 
^ve might he tp annul some very proper wills. Suppose that 
, f father, of wciak mind, is '^ moved" by his grown children to 
nake a will, giving to them, m equal shares, aU of his pro|)erty, 
and appointing one of them the execator< — their motive beings 
Ae liaar that ^ their fauier died intestate, none of them could 
fatocome his administrator, by reaopn of inalnlity to give socuri* 
tie^ ; ahd so, the fear that the administration of the estate 
WQi^^ P^^ ^V^ ^® hands, of strangers ? Ought such a ifiU to 
be anndfed — ankiuUed on the ground that it was siit^ply '^tm*' 
ttfuAi)*' &r thp-^dren to ^^ move" the father to make mek 4 



1 1 



t 



• 



414 . StPBEME COURT OF GEORGIA., 



^-*- 



\ ' 



Walker, ez;r, w. Hanter ei oL 

will 7 It oiight^ if the position of Swinburne^ adopted by ^e 
Cgort below, be right. But ve think it ought not. Other 
fuch cases may be supposed. 

[2.] In our view then, the charge of tho Court ought to be 
«Iightly modified, to exp)*e88 the Jaw on this point — ^modified an 
follows : That though a person ht^ a right, and it is Unrful fat 
him to move a testator to Qiake him hi^ exeen^r or'gije bis 
goods, even when the testator is a persop of wqak^dgomt 
ai|d easy to be .persuaded, and the le^M!i7^ great; yet,^i£^ in 
s^h case, a person does so jgpYe a testator^ a very strong pre- 
sumption arises that the -moving is of a sbrt not. r^t or ^aw- 
ful — ^a presumption only to be vehjutlted, as I thiidc, hy hi# hraog* 
ing forward something suflScient t^ show the wiU to ^ aofilttf 
^ per^^oCa\eca,ge_mjnd^ .morals, ^nd, Jamilylovo might Jy 
supposed wiUix^.to make. 

* We agree, then, with the CquqsiA for t^e plaintiff, Ui^t some 
part of the charge .of the Court did not fully express the htm* 
But we will not undertake to say whether tiiie verdio4 ima <ir 
was not- contrary t6 that piurt of the charge which (Ud express 
* the law, nor whether it ia true or not, that the verdict, was iBOn- 
trary to law, as in another one of the grounds on which the grant* 
i^ of the new trial was put, it is assumed to have been; and 
.this we will not. do for the same reason for which we farebei!i&' 
to express an opinion as to whether the ground, that ih^ ver* 
diet was contrary tp evidence, was or was not tro^^ To «af 
.whether a verdict is contrary to Jaw or not, it is,- in gen&aH, ^ 
necessary to say whether it is contrary to ey;^deni» ac net. 
And this case is not an exception^ that general, liile. 

[3.] The next of &e grounds on which the irantii^ ^f die / 
Aew trial was put, that we shall notice^ 7f%8 ^^the .fact t^ 
while the catise was pending bef<Nc« the Sj^ecia} Juq^^SL J^ 
Crocker, Esq^ one of the Counsel for respondeat, on th^ ^^j^kttf 
the twenly-third March, enteirtained at his house tm> ^Ae 
SpecialJory to whom the said^^use wassukyitlec^'tedika 
respondent) Charles Walker." 'This, is.uodoi^b^edjgf i«»go«i 
gKnmd: It k hardly in the power of affid^^yiti «ln^«l0L^M 
this 9Saf3c from mspieion. It is not in Mm imiiiiJi.iif'jflMhiiiil 



• 



• 



« % 



MAOON, FEBRUARl!''(rERM, 1855. 41* 

Walker, ex'r, m. Bmitet d al. 

to show tb&t the two Jurors were cot coasfeious! 
Bcionsi; affected by it. In WaUeer vg. Walka^, 
206,) tbia Court says : " wneo a Juror has been 
to try a cause, and during the tcisl and before he 
his verdict, be shall be entertained by either of t 
their expense, and the verdict be hi faror of the 
textaining the Juror, the veriSct will be set as 
rule is indispensably necessary to preserve the j 
tegrity of Jury trials iti our Courts, and cannot b 
enforced." 

This is not a case id which we ein make » d 
tween entertainment of a Juror by the prerailinj 
self, and ecterta^nment by his Counsel. 

the next and last of the gronnite on which the new trial waa 
granted was, "that the paper in the hand-writing of Lewis Sf^ 
omon, add found by the Jary in their room, was calculated t» 
mislead the Jury and influence their £nding." 

■ The Lewis Solomon referred to was the Ordinary, from 
whose judgment admitting the will to probate, the case on tri- 
al had, by appeal, been brought into the Superior Court. He 
was also the foreman of the Grand Jury, from which, after the 
Iremoval of him from it for cause, had been struck the Special 
Jury trying the easel The paper was found by the Jury in 
their room, soon after they met in it to consider of their ver- 
dict. 

Under these circumstances^ we think the Court was suffi- 
dently forbearing, when it said that the paper "was eakula- 
. ted to mislead the Jury and influence tfa%ir finditag." 

The afGdavit of Solomon amounts to this : that he did not 
intend the paper for the Jury, and that he does not know how 
it got before the Jury. The affidavit of the foreman of the 
Jury is, that the paper " was found in the room of the Special. 
' Jury ;" " that said paper was found shortly after entering their 
room, before they made up their verdict, and was ezamtned by 
all of the Jury, as this deponent remembers, before they de- 
liberated on said cause and made np theiv verdiot." 
' This ^air has an ugly look. We think tfab Ooart was-rieht 






■ * 



'416 SUPREȣE COURT OS" a^EORCS^IA..* 

r-T* ' f — 

Mitchell v$. PTron. 

in making it a ground for a new trial. {Coke Litt. 22T, h^ 
2 Hale'B P. C. 308. Metca^ v9. Deifn, Oro. Eliz. 189.) 

,So, these two grounds for a neV trial being sufficient^ tbe 

■€ourt was right, as we think, in grantbg a new trial. 'But 

nothing whatever is meant to* be said, ad*^ wkcftfaer'or nottiird 

yerdiot was contarary to the eridence qr to. the wmgbt .of the 

evidence* . • . . 



-r-r 



t 



JRo^ 67. — William MtrcHBLif, plahi^ in. error, iw. ^wlB 

Pybon, defendant in error. . 



• « • 



[1.] Service in the Ecdeeiastical Couria of Etigliuid, or the Gottrt ofOcd^ 
• ry in our State, is perfected on kindred and creditors* l^' citation. 

^2. J Any creditor thus serred, becomes a party to the proceeding, uid ifilfe 
be dissatisfied with the appointment of an administrator by the Ordinary, 
whether he objects in Conrt or not, he may appeal within the time pre- 

» tfcribed by%law. • • ' " . 

* Motion to dismiss an lippeal, m Troup Superioi' Oourt. i)e- 
cision by Judge O. Warner, Atkgu^t Term, 1854. 

WOliam Mitchell applied for uid obtained letters <tf adHsi&iB- 

tration on tbe estate of Jacob Striman, deceased^ no objeciioells 

being made or filed the)*ete. Within four days, Le^s Pyron, 

alleging liimseif to be the principal creditor of Striman, ^h 

pealed feom the order appointing Mitchell, and iii the Appd- 

^ate Court, filed his caveat to the appointment Counsel fbr 

Mitchell moY^d to dismiss the appeal — 

let. Because Pyron filed no objection in tl^e Ordinary Court 

2d. Because thiere was no issue *in that Court, and .Pyron 

was no party there ; .and there was no error commiltted by fiie 

fWUnary. • • 






MACON, FEBRUARY TERM, 1856. 41T 

-^j . , 

Mitchell vf. Pjrroii. 

. The Court refosed the motion, and this decision is assigned 
as error. 

B. H« Hill ; E. Y. Hill ; KKiaHT k Adabis, for plaintiff 
m error. 



0. Wabnek, for defendant in error. 

■ 
By the Court. — Starnes, J. delivering the opinion. . 

[I.3 The same strictness, as to matters of service and plead* 
ing, which is required in cases at Common Law, is notjobserved 
in the Ecclesiastical Courts or in our Courts of Ordinary, which 
derives its practice, in this regard, from- the Ecclesiastical 
Courts of England. Accordingly, service is perfected on kin- 
dred and creditors, in these Courts, by citation. (1 Bro, Ow. * 
i..458, 454. 4 Co. 29, a. 7 Co. 42, b. Bac. Abr. 2W. ' 
£ce. C. (E.) BoU. Abr. S. 80.) 

[2«] It is not denied that the citation in this case was regiK 
lar. If it were, and Pyron was a creditor, (as is alleged) he 
was ^uflSciently served, and must be regarded as a party to the 
proceeding. That he was a creditor, may be said to be shown 
by the allegations which were not traversed ; and which, for 
the purposes of this motion to dismiss, must be held to be ad 
mitted. 

' Fnder these circumstances, he would certainly have been 
eonduded by the appointment, if there had been no appeal*. 
Jf so, he was a party 'to the proceeding, whether he made ob- 
jection to the proceeding before the Ordinary or not, and had 
a right to appeal, within the time prescribed by law, if dissat- 
isfied with the Ordinary's decision in making the appointment., 
(1 &reenlf. JBv. 523.) 
Judgment affirmed. 



. VOL i:Tn.-53 



t 

1 



t 



/ . 



4J8- SOPJUiME COURT 01* GBORGIA, 

" I " I ' ■ I ' ' ■ ■ ■ ■ .1 ■ I ,1.. . . .ifci 

No. 68. — ^J. J. Wright, plaintiff in error, vs. W. B. Geken- 

woon & Co. defendants in error. 

[1.] Where the T^rdict of a Jury is not decidedly and strongly against the 
weight of evidence, it should not be set aside a^d a nei» trial granted. 

[2.] A new trial will not be granted on acc6nnt of newly discovered eviience, 
which does not tend to prove facts that were not dureotly .in iasue oa the 
trial, or were not then known and investigated by proof. -^ 

Assumpsit, &c. in Troup Superior Court, and motion for. new. 
ian^l. Decision by Judge 0. Warnbb, Deceuiber Term, 1854. 

. Greenwood & Co. sued James J. Wright*on a note for J816. 
Wright pleaded that the .note was given for the purchase of a 
negro girl, and that she was unsound in ttus : that she had 
white swelling in her left arm, though warranted sound. On 
tW trial, the bill of sale, dated 22d March, 1851, was in evi- 
dence ; and it was proven bjr physicians and others, that in 
the summer and fall of 1852, and in the year 1853, the negro 
had white swelling in he^ left arm. There was &n old seir on 
the arm. From this fact and others, two physicians swore 
they Jbelieved the disease had been of ^^some time" standing p 
they opuld not say how long. On the other side, it was prov^i 
by neighbors wh6 had known the negro in North Carolina, thai 
she was sound, an4 did the ordinary work of negroes, up to t^^ 
time of her sale. A physician there testified, that in 1843, he- 
lanced a large boil ou her left arm, after which it healed read- 
lly ; that at first he supposed jt to be white swelling ; l^ut afi^ 
itl^ healing -80 ^readily, he was satisfied it was no1;. It was abo 
proven, that twelve months after the sale, Wright ^^ expressed 
himself" satisfied, and promised to pay the note* This ia tli» 
i(ubstance of the evidence. The Jury found a verdict for 
Greenwood k Co. 

Wright moved for a new trial — 1st. Because the verdict was 
ijonfcrary to the evidence. 2d. For newly discovered evidence 
in this : that he pould prove by one William B. Hardy, of 
Heard County, that the negro was lame and unapun4 ia ibe^ 



•i 

i 



ILLCON, FBBRUART TERM, 185S. 



leftHm, three days tStet theaale. ThiBl»t groaad'ntmta^ 
jyertad by the affid&rit of Hardy Btatii^ tl ist he 

hftd nerer liefore commanioated it to Wrigl )da;fit 

(if Wright, as to the truth of this ground. 

The Goort ]9faBed the new trial, aad is as- 

Mgned as enor. 

Bull & Fe^bell, for pbdotiff in error. 

MonaAK, tor defendants in error. 

Bv the Oovrt.— Starves, J. delivering the opinion. 

[1.3 We are not prepared to Bay, that this verdict ia coiAra' 
ly to the evidence. At all events, we are satisfied, that it is 
not BO decidedly and strongly against the weight of evidbnce, 
ae to auliioriBe an intwference with the verdict of the Jury. 
- [2.] The newly discovered testimony, which was presented 
iip(^u the motion for a new trial, is, in its nature, cumulatirb 
evidence — such as had been received already, as to the qaes-' 
tim, whether or not this stave was diseased with white sweK 
ling at the time of her sale to the plaintjff in error (March ■ 
1851). That testimony was preanmptiive, it ia true, but so is 
this ;■ and it goes to the same point. Its tendency is greatly 
t|Q strengthen that presomption ; and it seems very hard that 
it Cannot be received. I oonfess l^at I have leaned very mnch 
towards receiving it. But we find die mle inflexible, that a 
•new trial w^ not be granted becaose of the discoveryof aAy 
evidence, which does not tend tto prove facts that were not di- 
. rectly in issue on the trial, or were not then known and inves- 
tigated by proof. It is impossible for us to say that this fact 
ma not, on the first trial, lAvMigated by proof. {Orah. If. 
T. Ch. IS. Moore vt. The Phil. Bank, 5 Serg. ^ Jt. 40. 
'Warren »«. ffope, 6 Qreen^. 479.) 

The Boond reasons on which the mle is based, viz : the 
aecessHy that there should be an end to litigation ; the en>. 
-nnfagement which a different practice would hold out to ihe 



fi(r . SUlPREME COURT OP GEORGIA. 

Jolmsoo, adm'r,. v$* Worthy. 1 

prdongitig of suits, and to the inUx>daction of perjury, for the 
purpose of presenting new evidence, quite reconciles me to wluit 
appears something of a hardship in this particular case. 
Judgment affirmed. 



■ 1 



¥o¥ 69.— ^William Johnson,^ adm'r of Allen Weir, dec'd, 
plaintiff in error, vs. Leonard Wortht, defendant in error. 

[1.] The widow of .W. being one of the distributees of his estate, and entitled 
to a provision for herself and family, for one year, oat of the same, is not a 
competent witness in a case where the administrator is seekihg to recover 
' property for the estate. If the estate be insolvent, and she has thus no in* 
teredt as a distributee; yet, to the other provision she is entitled; aul 
hence, she is faiterested to increase a fond out of which she znay have dis* 
tribution. 

.[2.] A parol rescission or mutual release of a contract in vrriting-and nnds 
seal, fbr the sale of lands, may be admitted as s^ufficient evidence of such 
release, if the rescinding contract has been executed. 

' [3.] Immaterial and irrelevant testiinony should be rej^ted by the Court > 

[4.] An amendment to a bill which is not material, nray be refused by tlye 
Chancellor. 

[5.] Where the charge requested is not authorised by the pleadings aad the 
proof, the same may be properly refused. 

In Equity, in Pike Superior Court. Tried before Judg«b 
Staekb, October Term, 1854. ' 

Williiun Johnson, as the administrator of Allen Weir, de- 
ceased, filed a bill against Xieonard Worthy, alleging tk«t 
Worthy had sold certain lands to Weir and given him a bond 
for titles thereto ; that after Weir's death, to defraud hk crei* 
iters, Worthy obtained possession of the bond and destEoy0d iMf 
and sold the lands for a largely increased price to some onh 
else ; that Weir's estate was insolvents The prayer was for a 



k 



t 



i 



, MACON, FEBBUART TBRM, 1855. 42l 

Johnson, adm'r, m. Worthy. 

t 

■ ■ ' I II , ■ ■ i ll I 

decree for conveyance, and an account for rents, ksnes an4 
pn^ts. On the trial, complainant offered in evidence the 
depositions of Mrs. Weir, the widow, which were rejected by 
the Court, on the groand of her interest in the estate. This 
decision was excepted to by complainants. 

Defendant's Counsel offered in evidence the depositions of ' 
Borrell Orr, who swore that Weir told him, previous to his 
death, that he had rescinded the trade with Worthy for the 
land, and that he had the use of it for one year for« his im- 
provements. Complainant's Solicitors objected to this testi* 
ihony, on the ground that a contract under seal could not^be 
rescbded by parol. The Court admitted it in evid^ice, and 
this decision was excepted to. 

Complainant then offered to prove by Thomas C. Trice, 
that the land was worth $2,000, ($1,000 more than the pur- 
chase money) at the time the trade was rescinded, which evi- 
dence was rejected by the Court and complainant excepted. 

Complainant then amended his bill, and alleged, that shortly af- 
ter the death of Weir he proposed to pay Worthy the purchase 
money and take the land for the estate, which Worthy refused 
to do. The Court refused to compel the defendant to ^nsWer 
this amendment — and this ^ecisioi^ was excepted to by com- 
plainant.' 

Complainant requested the Court to charge — " That if Wor- 
thy bought this land for Weir and took the deed himself, and 
gave Weir a bond for titled, in order to secure himself in the 
purchase — that in Equity, this was a mortgage.'' The Court 
refused so to charge, and complainant excepted. ^ 

Complainant requested the Court further to charge, ^^ That 
any contract made between Worthy and Weir, in relation to 
the land, to be binding, must be in writing, as well to rescind 
the contract as otherwise.'' The Court declined so to charge, 
out charged, that if the Jury believed that the rescinding contract 
had been executed according to the terms proven, it was not 
necessary it should be in writing. 

This refusal to charge is also excepted to. 

Upon these exceptions error is assigned. 



i§Si SUPBEHE COUBT 09 GEOKGIIL 

JohnsoOy adm'n'w; Worthy. 



H. & 6. J. Green ; Ma&tin, for plisdntiff in error. 

Borders & Harris, for defendant in error. 

Sjf the Court. — Starves; J. ddivering the opinion. 

[1.] The testimony of Bfrs. Weir was rejected properlj^^npcm 
the ground, (if no other) that'she was interested to increase die 
fund out of which she was entitled tea year's siq>port» In dm 
first pkce, she was a distributee; lUid thi^ interested. If the 
eeAte was insolvent, even though the propefrtj was not suffidenl 
to constitute a decent and comfortable provision for herself and 
fieimily ; still, she and her falnilj were endded to a year's 
maintenance out of it. Sbpkins vs. Long^ (9 Qa. 262.) Sd 
that it will be seen, she was direcdy interested in the result 

[2.] The sale which had been made by the defendant in ^- 
ror, to the intestate of plaintiff in err6r ( AUen Weir) of certain 
land, ahd qn a<^onnt of which he gave his bond for tides to 
Weir, upon payment of die purchase money, was rescinded by 
verbal agreement between the parties. In view of this, did 
Court was requested to charge, ^^ That any contract between 
Worthy and Weir, in relation to the rescis^on or re-convey- 
* ance of said land, must have been in writing to bind the par- 
ties, as well as to rescind the said conveyance." This was re- 
fused. 

It is a well setded rule, that a parol rescission or mutual re- 
lease' of a contract in writing and under seal, for the sale of 
j lands, may be admitted as sufficient evidence of such release, if 
the rescinding contract has been executed. (1 Qreenlf. JBv. 
302. 1 Phil. Ev. 565. Dearhon vs. Gross ^ Thrasher, 7 
Cow. 48.) 

Whether or not such agreement to rescind the contract in 
Ais case had been executed, was properly submitted to die Ju- 
ry "by the Court. 

Tor the purpose of proving the rescission of the written con- 
tract in this case, by parol agreement between the parties'diete- 
f6, the testimony of Burrdl Orr, to which objectioi^ hsa^been 



MACON, FEBRUABT TEBM, 1855. 4» 

■ — r — • ■* I ■ 

Johntos, adm'r, M. W^ctliy. 

Bi&de by the plaintiff in enror, wm, f or the reason just give% 
properly admitted by the Coiurt. 

[8.] Thomas C. Trice was introduced by the plaintiff in ef- 
ror, tor the purpose of showing that the land was worth $200(^ 
or more at the time the contract was rescmded ; and his testi- 
mony to this effect was rejected by the Court. 

There was no allegation by the creditors of Weir^ of any 
fraud on the part of the defendant in error in the final sale of 
this land; though it is charged in the bill to have been worth 
more than this sum. But it is difficult to conceive a reason 
why Worthy should not have sold the land for as much as "he- 
could get ; and no such reason is suggested. If, then, there- 
was no fraud by him in the sale of the land, and the same were'* 
fairly made, there would be^ no justice in allowing the creditors 
(if entitled to recover any thing from him by setting aside the * 
rescission of the oontraot) to recover more than diat sum tor 
which, in good faith, he had, sold the land. And this seems 
the more equitable, when it is considered thaf there is no suffi* 
cient or distinct allegation of fraud in the transaction between 
Weir and Worthy, or committed by Worthy in the rescission. 

' Tlris testimony of Trice was accordingly not proper or mate- 
rial. 

[4.] After the rejection of Trice's testimony, the plaintiff in- 
error moved to amend his bill by adding the statement, that the 
complainant " proposed to the defendant to pay him the full 
amount he had paid, with interest, and take the land and ad- 
minister upon it." 

Viewing the circumstances of this .case as we do, we^ are of 
tiie opinion that the defendant was under no obligation to ac- 
cept this proposition. But the conclusive criticism is, tliat 
there was no mutiialiiy in the arrangement proposed. !Che 
plaintiff in error had not administered, but simply proposed 4;o 
administer, if defendant would give up the land. Ue had^ 
therefore, no right to contract in the premises, and if not, de- 
fendant could not have made any legal and binding agreement 
with him, and hb right could ^ot be affected by a refusal to ao- 






494 ' 8UPRS8CB CaUBT OF 6E0RQIA. 

Johnson, adm'r, m. Worthy. 

.cept his propositioD. The amendment was, therefore^ whoDj 
immaterial. • 

[5.] The Court ^low .refused to charge that the complainant 
^iras entitled to*^the relief he sought, because the transaotbn be- 
tween Weir and Worthy in the sale of the land and the ezecu* 
tion of bond for titles, was in the nature of an equitable mort- 
gage. 

In our opinion, taking into consideration the case as madeby 
this billy and the facts which were in eridence, ^is charge was 
was not authorized. But the Court gave them a charge quite 
as much, if not more to their interest. This charge was asked 
with reference to the right of creditors, as presented bj the 
allegations of the bill, to have the value of this land at the 
time of the rescission (deducting purchase money and expenses) 
, paid to them. And on this head, the Court instructed the Ju- 
ry, that '' parties had not a right to make any contract or 
agreements to hinder and delay or defraud creditors, either foe 
the benefit of the defendant's family or otherwise." And fur- 
ther, that ** if they believed the acts of Allen Weir and the de- 
fendant worked an injury to the creditors, it was not necessary 
to believe it was done with design, in order for the creditors to 
have relief.** This was going very far, indeed, under thActs 
of this case, and was quite as much in favor of the complainant 
as he ought to have desired. 

The Court further charged, that " if the rescission of the 
contract and its execution have not been satisfactorily estab- 
lished, you will decree for the complainant the surplus in the 
defendant's hands, arising from the re-sale of the Jand to Free- 
man, after re-imbursing him for all he paid to Roberts, with 
interest." 

^Looking to the allegations of this bill, and taking into c<^ 
sideratiot) the proof, if tHere had been no rescission of the con- 
tract, unless the defendant acted fraudulently in disposi^ tf 
the land to Freeman, he should not have been held liable fe 
more ihan the amount which the Court here authorizes iki 
Jury to find, whether the transaction was regarded as an 0fDr 
table mortgage or not. So 'that the rights of MmplajMmt 



■MACON, F1S8RTJART O^RM, 1865. 4» 



«lkM 



Wade «t al. tnidtees, ve. Russell. 



^■^^^ta 



t . I 



^oovid not have been legat) j any more favored by tbe ^eharge^ 
«a8 requested, than as given. 
Jxidgment affirmed. 



* * 



No. 70.^ — jAMEg A. Wadb and others, trustees, plaintifib iii 
erroi:, t>8. James A, Russell, defendant. 

* 

£1.] To defeat the mariUil right, the iatentioo to create a separate estate it\ 

tbe wife muBi be uDequivocal. 

Trover, in Troup Superior Court. Decided by Judge War** 
HBR, November Term, 1854. 






This -case turned on the construction of the following clauses 
in the will of Hudson Wade, deceased : 

'^ It is my will, that my whole estate be kept together in 
eoffitton stock, for the benefit of my family ; and as my ohil* 
dren arrive at the age of twenty-one years or marry, they are ' 
to receive the sum of Five Thousand Dollars, each, in money ot 
property, at tbe discretion of my ezequtor — the portions of my . 
daughters, Mary Jane, Sarah Louisa^ Julia Elvira and Susan 
Hudson, I do give to John W. Porter, James A. Wade and 
William F. Wade,- in trust, for the use, benefit and behoctfof * 
my said daughters.'* 

. Item : ^^ When my youngest child shall arrive at the age ef 
.twenty-one pr marry, the remainder of my estote, after each 
ciiild has received Five Thousand Dollars as aforeswd, shall be 
^ually divided among all my children (naming them); the. 
a&ares of my aforesaid daughters I give to the trustees afore^ 
said, for ^e use and benefit of my said daughtexv/' The de* 
fendant married Mary Jane Wade, and her ^bare of the pr<K * 

.lrt)L. ZVI&*54 , 



• 






t t 



• 



■426 'SUPREME COURT OF GEORGIA. 



-b4 



Gilmer, assigaee, et ah vs. Warren & Scarboroughi 

.perty was given into his possession, where it had remained CTcr' 
since; and this action was brought by the trustees namdd in- 
-the win, to recover the possession of the negro property from , 
him. The Court held, that they could not recover and non- 
Mted the plaintiff ; and on this decision, error ifl assigned. J^ 

* ' Dougherty, for plaintiff in error. , • ■ " 

« 

Warner, for defendant in error. 

By the Court. — ^ESenning, J. delivering the opinion. 

Whatever kind of estate it was, whicli the testator ihtendei 
.to create in the daughters, he intended to create it in them, 
whether they ever married or not. This is clear. And ftcre^ 
. fore, it cannot be said, that he intended only a separate estaA . 
in them. Such an estate could only exist in them, in case 
they married. Indeed, the words of the will are as suitable" t^* 
the. creation of estates in sons as in daughters. 

[1.] And it is well settled, that to defeat the marittil ri^ht^ 

the intention to create a separate estate in the wife must be-une- 

, quivocal. {ffill on Trustees^ 421.) And in this, fhfe iniCB'* 

tion to create a separate estate cannot be said to be tu^cfoMh 

cal. ^ • . . . 

So we think the non-suit should not be disturbed. 






% 






• •• 



•No. 71. — John H. Gilmer, assignee, et ah plaiiUife irf'fft!ftl|! 
vs. Warren & ScARBORouaH, defendants* ' " ^^* 



/.»■< 



[1.] The Act of 1830, authorizing the Superior Court to miike a ix^L'H^Sk^ 
' ion on certioraHfSj without sending them back xrith in^tnM4tt9f 4MM^ 
toforer practiced,- does iiott^pl? tq «erit^rtfn>«^frqniiCbe Sofe^MPMblK^*' * • 



' . ■ . • • • • 



9(A€H>N, FEBRUABY TSBM, 185& 4^ 

Gilmer, assignee, et oLvs, Warren k Scarborough. . 

^2.3 The direction to pay over money raised by process of garnishment, to 
judgments or executions against the debtor, according to the priority of 
their respective liens as established by law, will be observed and enforced 
by the Courts, so long as the f\ind is in the hands of the Court or its oft* 
cer, and not actunlly paid out. ' 

Certiorari, from Gr&wford Superior Court. Decision by 
; Judge POWEKS. 

m 

Warren & Scarborough^ holding a/, fa. from the Inferiof 
Court s^auiat John S. Johnson, caused a summons of garnisb- 
meat to be issued to Holmes Steele^ who, in his ansAver, ad- ' 

fButted that he was indebted to defend^uat One Hundred and 
Tw^tj Dollars : whereupon, at the May Term, 1850, of said 
Inferior Court of Crawford County, an order was passed and. 

* entered on the .minutes, that the garnishee, within ninety days, 

^pay the money to the Clerk^^ and that the Clerk pay it over to 

' the plaintiffs mJLfa. 

. At May Term, 1851, the money being in the hands of the 
Deputy Sheriff, John H. Gilmer, as assignee of a fi. fa. m. 
Johnson, older than the fi. fa, of Warren & Scarborough, and 
which was in the Sheriff's hands at the time^f granting said* 
order, moved a rule to set aside said order and pay the 
money to said older fi. fa. Warren 4; Scarborough tendered 
an issue, alleging that said oldest^. /a. had been paid off, and 
, was fraudulently and collusively kept open. Issue was joined, 
. and Counsel for Warren & Scarborough moved a continu- 
ance on the ground that he had never before seen said fi. fa* 

. and had relied on the order of the Court, passed at May Term, 
1850, and was, in consequence, not prepared with testimony ' 
to sustain the issue he had tendered. The continuance wacr 
refused by the Court ; and the affirmants in the issue offerbg * 
no testimony, the Court granted the rule setting aside the for<> 
mer order, uid ordering the money to be paid to the older fi. 

On certiorari to the Superior Court, the Judge held, thai 
Acre was no sufficient ground to set aside the fcHrmer order of 
tthe Ooprt^ and sustained tke eertiotari and ordered t^ie money 






/ . 



• t 



428 . SUPREME COCRT OF GEORGIA. 

Gilmer, assignee, et al, vf, Warren & Scurbortngli. ' 

to be pnid to the fi. fa. of Warren & Scarbonmgh j and on 
this decisbn error is* assi^ed. 

Cook & MoNTFOKT,for plaintiff in error. 



•• 



Hunter, for defendant in error. 

* 

-By the^ Court — Lumpkin, J. delivering the opfinion. » 

• * 

What is the true constritction of the agreement entered into 

IMtWeen the Counsel <>{ the respeetive parties in this case ? 

When the last judgment of the Inferior Court of Crawford 
County was Tendered in favor of Gilmer, against Wwren t$ 
'Scarborough, to save the latter the trouble and expense of fl- 
Ung exceptions to the decision and suing out a certiorari t& 
procure its reversal, it was stipulated that the case might b^ 
CMtied up to the Superior Court, as though the regukrcoom 
pcHnted out by law were pursued. 

Upon whom^ then, did the burden of proof rest, to del andd 
this judgment ? Certainly upon Warren & Scarboron^. Bi^ 
ing rendered by a Court of competent jurisdiction, it is pre- 
sumed to be right, until the contrary is made to appear* Htd* 
' a certiorari been prosecuted, in response to the mandate of Ae 
Court awarding it, all the evidence upon which the Inferior 
Oomii acted would have been sent up. The agreement {»e^« 
vented this* And yet, the Circuit Court not only presumed* 
' against the judgment of the Inferior Court, in the absehee d 
all proof impeaching it ; but went further, and refused to at* 
low the party in whose fii^r thd judgment was rend^redytD 
support it by evidence. 

Indeed, the Court took this view of the whole case, i^ p* 
its decision dbtinctlyupon it, viz: that the first order passed m 
9 &vor of Warren & Scarborough, fixed, conclusively, the ri^its 
of the litigating parties ; and that it was not compet^tSOBrAit 
Inferior Court; subsequently, upon any testimony #hatev«i:,*'te 
annul this first order. And the Judge directed Ae ijAiiNr 
■ Court to pay. out the money accorcUngly. » ,.. ■*'" V ■• . 






MACON, FEBRUARY TERM, 1855. 429 



.Jki 



Uilmer, assignee, et al. vs. Warren k Scarborough. * 

p.] We would remark, in passing, that the Superior Court 
has no power to render a final judgment upon certioranes from- 
the Inferior Court. The Act of 1850, {OobVs Dig. 529,) ex- 
tends only to certiorarie9 fr(xjai Justice's Courts. 

[2.] But were the rights of Gilmer concluded hy*the first 
judgment? So far from it, we hold they were not at all af-, 
fected by it. The garnishee, Steele, deposed at the May Term, 
1850, of the Court. At that term, and before the money ad- ' 
nrittedTjy the garnishee to be due was paid into Court, a pros- 
pective order was taken, requiring it to be paid over to the. 
Clerk; aod by him to Col. Hunter, the Attorney of Warren & 
Scarborough, within three months. At the time the order was 
taken, the older Ji. fa, of Gihner was in the hands of Hicks, 
ihe Beptity Sherift^ and placed there to claim this fund. And 
ibe complaint is, that it was fraudulently withheld by some 
collusive arrangement between Col. Hunter and the Sheriff!. 
Twelve months thereafter, to-wit : at the May Term^ 1851, of . 
the Inferior Court, the money, for some reason or other, pot* 
having been paid out, but still in the hands of the Court or its 
officer,' Gilmer comes forward and moves the Court to have it 
applied to his prior lien ;• and the Court, setting aside its for- 
mer order as having been improvidently granted, directs the 
-fund to be paid to GKlmer. 

It. is not pretended that Giltaer was a party to the first or- 
der. The burden of his complaint is, that he had no notioe of 
it; that hxsfi.fa. was withheld. His rights then, so far from' 
being fixed, were not and could not have been prejudiced in 
the least by that orden He finding a fund in ' Court, then, 
raised by process of garnishment, comes forward, and planting 
himself upon hi^ Statutory preference, (See Oobb's Dig, 78,) 
claims, as he had* a right to do, under the law, to have the mo- 
'ney appropriated to his demand. And why was he not enti- 
tted to it ? What was it to him, whether the first order was 
iUrly or fraudulently obtained ? 

* The regularity of the Gilmer execution is attacked. The 

CSrcmt Court did not adjudge this point ; hence, we are not 

,^^^3fed upon to do so. We ha^ in£q[>ected the record froj)^ Lee 



4S6 SUPBEME COURT Of GEOBGIA. 

Miller, garnishee, et al. va, Conklin k Co. et al, 

' ' ■' ' I ■ ■ ■ ■ ■ I M , , I 

Goimty, howey^, upon which this precept iasaed^ and see nothiolg 
in it which would authome.this or any other Coort to yec&te thi 
proceeding. It is not true, in point of fact, that the judgm^ 
of Warren & Scarborough is againot John 8. Johnson indtvid- 
ti^Uj, while the judgment in favor of Gilmer, as aa&agoeey Is 
agunst him representativelj. Both' judgm^its' are against 
^ohn 3. Johnson, individually. There'are two Jdhn9onft-H)iije 
John S. and ike other John Johnson. Not only is Jehn & 
Johnson a defendant in the Gilmer judgment, but Oglesby ^^J^ 
• Jaokson, a^ the administrators of John Johnsop, deceased, ar^ 
also co-defendants. But the two Johnsons are wholly distinet 
j>ersons ; and we repeat, John S.' Johnson, individually, is a 
judgment debtor in both. And while there may be some i^ 
regidarity in the proceedings, they are clearly amendable ; and 
the defects, such as they may be, are not such as to warrant 
'the Court in setting (tside or postponing this older lien. 



No. 72. — S. F. Miller, garnishee, et al. plaintiffs in error, m 
OoNKLiN & Co. and others, defendants. 

;(!.] An assignment by a firm in insolvent chrcumatanc^, of all [tbeir asseli, 
for the use and benefit of such creditors as should, withhi ninety days, B» 
their claims with the assignee and release the said firm from allHabllHqf 
therefor, is illegal and void as against objecting creditors, in the State of 
Georgia. 

Garnishment, in Macon Superior Court. Decided by Jtt^ 
Powers, September Term, 1854. 

This was a garmshment issued to S. F. Miller as gtmitoj 
on a judgment of Conklin & Co. vs". CoiUns, Ashhnnh McE^- 
,ue & Co. The garnishee returned that he luid ao vffiM^-qlir 
ting that he ha^ received from flefendaats ^^toiu limits 



* • 



* 



MACON, FEBRUARY TERM, 1856. . 431 



««■ 



Ot^ 



Ifiller, garnishee, et al. iw. Gonklin it Co. et al. 



ft deed of a88igiim«it, for the be&efit of creditors. This deed, 
dated Dec. 28tb, 1852, transferred to Miller all tke assets of 
t OoUiBs, Ashbum, MeEaizie & (To. for the use and benefit of 
itll dueh of their creditors as should, within nipetj days, file 
tfieir claims with the assignee^ and release the said fism from 
afi liability ther^or; said assignee then to collect the assets 
•fid di^de the same eqnally, pro rafa, among the creditors ae« 
ceding to the arrangement. The assignors reKnqnished all 
^elaim to or interest in said assets, and authorized the assi^ee 
to use their names for ti^ purpose of collections. The gar^ 
nisbee also excepted to the jurisdicticm of the Court oyer the 
ease, on the ground that the matter was properly cognisable ii[i 
Squi^, and was not a subject for process of garnishment. 

The amount in the hands of the gamiebee, collected under' 
tins assignment, was admitted. The Court over-rdled the 
poinis made in the answer, held the assignment roid, and gave 
judgment against the garnishee, to be paid in three tnonths. 
And on this decision error is assigned. 



t • 



Miller k Hall, for plaintifis in error. 

OooK & MONTFORT, for defendants in error. 

JSjf the Cowrt, — Starnks, J. deliTering the opinion. 



[1.} The point now presented has never been expressly ad-^ 
j^cated in tins State. 

In England, where legal policy permits an4 encourages, 
.bankrupt lawSi assignments with conditions of release are up- 
lield by the Courts. 

We find a considerable confiict of opinions on the subject^ 
when we look to the decisions in the United States. In some, 
. tuch assignments are sii;>parted ; but in the majority, where 
lite question has been made, lliey have been held ill^aL 
Where they hove been sustained, it will be found, we thii^ 
Aftttbe &rst di^cisions on the sut^ect were made in the earlier 
%lffn a£ Ae -Btfidbliq) irfaen our policy, legal and commercial. 









' ; • 



^ 



;9 



* 






482. . fiUPREME OOtJRT OF GEORGIA. 

■ I| ■■■■! . ,!■■■ ^^^..fc 

^ Miller, garnishee, et al, vt. Gonklin k Co.'et^. * • *' 

. . . ■ • ' ' ■■ ■ . 

had but slightly diverged from that of' Great Britain. Thii 
Bceniis to be true of Virginia, Pennsylvania imd South Carolina. 
(1 Amer. Lead. Cos. 88.) It is also true of Massachusetts t 
ire bieUeve« {Id. 84.) 

The case of Bromshear vt. West, (7 Pet. 609) which -iraB u 
decision by Chief J. Mar%hallj sustains the. same doctrina. 
But ^t is put tpon the authority of the Pasnsylvania decisions^ 
(being made in a Pennsylvania case) and that distinguished 
person, in making the decision^ expresses *^^ doubt and regret," 
and condemns the morality of such a tr&nsaotion. 

So in EdUeyet al. vb. Whitney, (4 Maw. 207, 227, 2^ 
.such 1^ assignment was supported by Mr. Justice Story , upon 
<< the supposed opinions of the profession in Mltssachusetts": 
but he, too, condemns the principle on which it is based. 

In th^ State of Alabama, it was decided (two fudges dissea:!* 
ing) in an early case, that such an assigncoent was valid ; but 
» we are told, that that decision has been reluctantly adhere! te 
on the gi'ound of mere authorily^. (1 Amer. L. O. 84.) 

A different rule prevails in New York, Connecticut, Ohiq, 
Illinois, Missouri, Mississippi and Noith Carolina. And in 
Maine and New Hampshire, Statutes have been passed for the 
purpose of requiring equality of distribution among creditos. 

Now, if unassisted by our own legislation, and left to decide 
between these conflicting views of Courts, we think we shoald 
«liot haver much difficulty in arriving at a satisfactory concludoii. 
In our opinion, the arrangement gives to the debtor an adtan- 
tage which is not consistent vrith a pure' morality or aMintte 
justice*— an advantage which enables him, in the language of 
Jnige Snth0rlandj in Onmer vb. Waheman (11 Weni*. 29(^. 
^<to operate upon the fears of his creditors and eoeroe thcAi 
into his own terms." It proceeds, in short, on prin^toi 
which have be^n condemned by such men as MitrBhaM^ aai 
, Story, and Kent, eiren while the two first Idive bedn eosapfSMi ' 
to sustain such an assignment in parttcttlar eases, by r e aa mtf 
l^ece^ent applicable to Uiese cades. ' * 

We have no sudi precedent in ' our State, wi me^m^ 
adopt thM which we deem the niiore wMttMN|AMt]ife^< 



• 



•• 



t • > * • » 



• \ % • • • 



. 



MACON, FEBRUARY !EEBM, 18fi6. 



440 



Miller, ffftmishee, et at, vs. OonkliD k Co. et a!. 



-b*> 



.eampell^d to chooae between these conflicting views of Courti, 
jind to determine the question iq>on principle alone. 

Socoe of the- oaaes which maintain the legality and propriotj 
of such an assignment, have gone upon the idea that the debtor 
hm th^ right, bonafide^ to prefer one or more of his creditors, 

• and pay the debts due to them with his property. . On thai 
^NTineiple Ohi Johnson (Job Johnson) of South. Carolina, pilts 
tbe ease in Nidan v^. Dougla99j (2 Mill Ch. R. 451) perhaps 
MM Strongly as it can be found elsewhere. ' He sets out by 
granting the debtor's .right to prefer one CFeditor orer another, 
4nddays, ''then if it would have been no fraud on him", (tbe 

* creditor) ^' to prefer others over him with or without condition^, 
% he defrauded by giving him an opportunity to participate 

'with them ? an opportunity which it would have not been fraii- 

dfileot in Johrison'* (the assignor) '' to have withheld from him ?*' 

This is tbe wjbole strength of the argument. To our mindji, 

it is not satisfactory. The law gives to the Creditor the rigbt 

|o prefer, necessarily. And this is advantage enough. 0«r 

.Statute of 1818, sanctions this right expressly. Let him u^o 

this advantage, and prefer any creditor he pleases, and pay 

MYfdkj his property to such creditor, as he has the right to do 

in good faith* . But let him not use the threat of doing thU, 

V as a sort of moral duress, by which he may coerce his credt- 

tors into an agreement which they would not otherwise approve. 

Lead him not the hand and the strong arm of the law in doing 

this. 

So that, if there were nothing else to aid us in taking sides^ 
on this question, (so much mooted in this country,) whether or 
jiot such an assignment was of a character '' to hinder and de- 
)aj creditpcs %* therefore, as contrary to the 1 3 of JEUzabethy void 
jkiid illegal in our State, these considerations would influence 
and control our views on this subject. 

. But there is something else; and that, in our opinion, is tBe 
Mress of our own legislation. We not only have no bankmpl 
laws, but our policy and the public sentiment of our peof^ 
4|re opposed to them* And what is.i^nch an assignment but a 

.TDL zvn.*55 



t * fc . • * 



434 , SUPREME COURT OF GEORGIA. 

< ■ I I ■ I I ■■ ■ ■ ■ I I I M ■ f i i i a 

, * HUler, garnishee, et aL vt. ConkUn k Co. et aL , 

■ \ ■ ■ ■ 

private Bankrupt Law? a Bankrupt Law executed by tht 
debtor for his own benefit ! Does he not ibna release faiois^ 
from his debts, by compelling his creditors t6 take what he csb 

pay? 

Our Statute of 1818, if not in express terms, or by necesBSr 
ry implication, yet, in its whole scope, purpo^ and spirit, pro- 
liibits such an assignment. Like the Statutes of Maine and 
JNew Hampshire, it was intended to ensure " equaGty of dial nbih 
-tion among creditors ;" for it declares tte assignment void, it 
'^ any creditor shall or may be excluded from an equal share 
of the -estate so assigned," &c. And a proviso deelares, thrt 
nothing contained ' in this Act shall prevent any person firoA 
^Belling or disposing of any part or the whole of his, her or Ad 
estate, so the same be free from any trust for the benefit of tte 
Beller, or any person appointed by him." Thtis ilftbrdiDg » 
ley to the mind of the Legislature, and indtcating how they 
intended this equal distribution to be made, viz: onsuchtsnoB 
as should be free from any trust for *the debtor^ s benefit: ftrt; • 
Sq an assignment with condition of release, suoh a disp^itioii 
of the property as is without a trust for the debtor's be»?fit? 
If not, it is contrary to the scope and spirit of ihid Statute,. tf 
not to its letter. « 

Our Legislature has also manifested its abhorrence of lUtoqiii! 
assignments, by its penal provisions (treatiiig Ae sWne m ^ 
felony) against insolvent banks making assignments in coi^tan- 
plation of insolvency, which are not for the benefit of-all dte 
creditors and stockholders. 

Of course this decision goes no further than die case msde. 
We do not undertake to say that such an assignment wooldmt 
be binding on the creditors, if they were all to accepiv and'*> 
one was injured by it ; nor as between the parties, the debl^ 
and the assignee. 

Judgment affirmed. 







• 



OACOK, FBBRlfABT TBBM, 185ff. • 43S 

Causey k Oslin 09. Miller. 

n ■ ^ 



■p ■ t 



' If 0. 78. — Causby & Oslin, plaintiffs in error, i?«. James. A. . . 

Miller, defendant. 

[1.] If the verdict be right, -a new trial will not be granted by the Suprewe 
Court for mistakes m(Tde by the lower Court, on the ground of sueh migv 
takes, unless a motion was made, in that Court, for a new trials on the 
ground of such mistakes. 

Assumpsit, from Crawford Superior Court. Tried before 
Judge PowEiid, September Term, 1854. 

* * 

Y 

' This was an action on a promissory note of Causej k Os- 
*lin, sued on* by Miller. 

* The defence was set up by Oslin, and was, that after the 
finn of Causey & Oslin bad been dissolved, that Causey, one of 
fib^ firm, sent a clerk to Miller with the sum of One Thousand 
jbollars,* (nearly enough to pay the not«) of thd funds of the 
partnership, with instructions to pay it to Miller, if required^ 
* ' but to request him to wait^ and to a)low the money to be ap* 
plied to other debts ; that on this request Miller consented to 
irait^ and the money was paid to* other debts, some of Causey. 
ft Oslin, and' some of Causey alone. A short time afterwards 
Causey foiled. 

3%e defendant, Oslin, insbted, ^at by allowing the funds 
diiis scdat to pay his note, to be applied to other debts, Miller . 
liad lost his right to hold him, Oslin, liable on the note. 

The Court over-ruled the defence, holdifig, that unless the 
ttcmey had been Oslin^s private funds, and so known to Miller, 
fbe indulgence given could not destroy Miller's right to recover 
sgwtst the partnership. 
• ' T<^ diis decision defendants excepted. 

MiLLSE k Hax<l, for plaintiffii in error. 
^ORVAH, for d^ndant in error. . 



43e 



SUPREME COURT OF GEORGIA; 



Causey k Oslin vt. Milter. 



J5y tbe Court. — ^Bennjng, J. delivering the opinioD. .■ ' 

In this case, the verdict could not, on the evidence, hare 
been other Aan what it was. -There -was no evidence, Aiat. 
Miller^ when he consei^ted that the $1000 might be appEed to 
the payment of other debts than his own, had knowledge cf 
notice, that the partnership of Causey* & Oslin had^ been di^ 
solved, or that the $1000 was to be applied to.thQ paymenc'of ' 
, any other debts than those of Causey k Oslin. Thereby 
.^ thieref6re, ho evidence that he consented't(^ the viisappliccUim,' 
.. by Causey, of any funds, whether belongbg to Causey & Osliii 
or to Causey, or to Oslin. For aught that appears in the ^^ 
idenee, the consent of Miller Was to no more than that-t^efimd/ 
m^t be applied to the pikytaent of other debts due by Cawi^* 
^ Odin. Such a consent as that could not, if acted on by 
Causey, injure Oslin. Such a consent could not^ thersfinre^ ' ' 
operate so as to discbarge Oslin from the d^bt to Millear* 
Nothing but a consent to « misapplication of the money could* 
And the burden of showing consent to a n^i^pplication wiff 
qpon Oslin. 

1^1.] This being so, and ther^ not having been made any motion 
1b the Court below fbr a new trial in the Oftse^ this Court ou^ 
not to order a new trial in it, even if it should consider the. 
Court below to have committed some^errorg; for in sudia' 
ease, a new trial could not properly result in any other tcoA 
the old verdict. 

No opinion, however, is expressed as to whether the Court 
erred in any respect or not {Ac^ of 1853~'4-'46.) 

A new trial is refused simply because the verdict was b^094* 
• doubt, right on the evidence. 



« ■ 



• I 



MACON, FEBRUARY TERM, 1855: 437 



* ■ 



-V- 



Cooper v». The State. 



^ 

No. 74.— LEftOY W. Cooper, plaintiff in error, y«. The Statb 

OF Georgia, defendant. 

« 

fU] The Ar»r<;/iid4i«> against the bail In an indictment, is to be issued from 
the Cbnrt of the conntj in.which Oonrt is the indiptment, and not frpm the* 
Court of the county i^ which reside the bail. 

(7a. sa, and illegality, from Pike Superior Court. Decided 
^ly Judge Starke, October Term, 1854. 

, Simiuel Moore being indicted in tbe County of' Pike, gate- 
Vond fbr his appearance, with Leroy W. Cooper as securi^, 
dated December 20tfa^ 1850. The defendant failing to 8jq)ear 
at April Term, 1852, (jBcire fadag having previously issued,)- ' 
judgment was entered against Cooper aJone, for the penalty of 
she bond. A fi* fa. was issued and returned nulla bonoj and « ' 
then this ea. »a. was issued on said judgment, and the defend- 
ant was arrested, in Spalding County. Cooper made his affi^ 
doMft of illegality to said ca. m. on die, grounds — 

1st. That the judgment was void, as being against only one 
of the parties to'tbe bond. 

2d. That there was no reference, in the ca. $a. to the fact 
that ^fi.fa* had been previously issued. , 

3d. That the ca. bo* being issued from the Superior Courts 

' of ^ikQ County, and the defendant residing in Spalding, it wa0 
necessary that a return of non est inventuB be made by tha * 
Sheriff of Pike, before the ea. aa. could have been esMcnted in* 

* Spalding. 

4th. Because, between the giviiig the bond and the rendi- 
tion of judgment thereon, the County of Spalding was created 

. l^ law, and the defendant was and had been wiUiin the limits 
of the new county, aiid that the Superior Court of Pike Coim^ • 
liad, by the terms of the said Act, no power to render siad 
judgment. The Court over^ruled all the grounds taken, and 
this deciapn error is assigned. 

McCuN£,.for plaintiff in error. * 



48a SUPREME COUR* OF GEORGIA. . 



Cooper V9., The S»te. 



By the Oowrt. — ^Bennikg, J. deliy^ing the opimon. 

* 

[1.] The %cire facias On a forfeited bful bond, in an iadictr* 
aent, has to issBe from the Court in which is the indiotment* 
*((7(?6i'« 2)^7. 861, 862.) 
' The indictment in this case was, to a certainty, a^ fint^ in the 
tiourt of Pike Co. The Court of that county was the ope in which 
* the indictment was made. Aud .whether the indictment ever 
got out of that Coort in^the Cowt in Spal£ng, does not« 
appear ; for it does not appeiur whether the offence charged in 
Hhe indictment was committed in that part of Pike which wis 
afterwards converted into Spalding, pr in that part which was 
allowed to remain Pike.» 

« For aught that appears, then, the indictment still remained 
in the Court in Pike County, notwithstanding the Act of the 
Legislature, which, out of a part of Hke Coun^ and purts of ' 
other countiea> made Spalding. 

This being so^ for aught that appear^ the Court in Pike 
was the Court from which the scire facias agamst the bad had 
to be issued. And unless something afqpeared g'omg to show 
diat the Court in Pike had oeased to be such Court, it k not 
to be presumed that it had ceased to be ^oeh. 

There is, therefore, no foundation, mfact^ for the groiad <^ ' 
the affidavit of illegality^ to the effect that, the ca* so. sbouU 
have issued from the Court in Raiding, and not from the 
ComrtinPike. 

The Act of 1851-2 seems, indeed, not to have provided Jbr 
the transfer of criminal cases^ but only of eivil. {ActSf 60.) 

Of the otjier grounds contained nx the affidavit of ilkfali^ • 
Bone were insisted on in tibe argmBmt before thia Courts 

ISie judgment of the Court bdow> over-ruling A0 afitoil^ 
efrilkgiJify, OQght thttrelbre to be affirmed^ 



• ■ • 



^ ' -A< 



* 



• * 



SlACON, FEBRUARY TERM, 1856. 43^ 

Dacy M. The State. 

■ ■ I ■ I I I I ■ I .if II I fc . .!,■ , ,,, 

i * 

' No. 75. — Charles Pact, plaintiff in error, vb. The State of. 

Georgia, defendant./ 

{!.] U 18 no gfoand-ibr a oontimiaiice, tbatthe defen^anfr expects to^proTe^n 
alibi by an absent, witness, on the daj alleged in the indictment, prorided 
the Solicitor General will waive preying the offence on that day. 

[2.] Tboagh the allegation of time is important, it is in no case necessary to 
pr«ve the precise day or even year laid in the indictment, except where a. 
daj Is aTerr^d by way of describing a written hsatmment, record, Ice, or 
irhere time enters into the nature of the ofitoce. 

f3.J Billgeiice is required of .parties and their Counsel in the preparation of 
causes ; 4nd Courts are disinclined to disturb verdicts occasioned by neg^ 
gence ; yet, where justice demands it, it will be done. 

[4.] D bettog prosecuted for a misdemeanor, pleaded a former acquittal, and 
applied to the Clerk for the former indictment preferred for the same offence 
and the order on the minutes of the Court discharging the accused from 
< the prosecution : neither of which could be found. The Court having di- 
rected the trial to proceed, ^there was a verdict of guilty rendereiLagainsi 
the defendant. In the meantime, the search having been continued, whUe 
• the Jury were out, both tlie indictment and the order of discharge were 

fonnd, the former in the possession of the Solicitor General, who had over*- 
looked it in the hurried examination which he made amongst bis papwi. 
There being no doubt frcAn the evidence and a comparkon of the pleadings 
that the ofi*ences were the same : Held^ that under the circumstances, a now 
trial dhotild have been granted. 

Ltdictment for misdemeanor, in Bibb Superior Court. 
Tried before Judge Powers^ November Term, 1854. 
* 

This was an indictment for receiving com from a slave, 
charged in the indictment to have been committed on the Ist 
May, 1852. 

When the case was called for trial, defendant moved a contniu- 
• a&ce, on the ground of the absence of certain witnesses, by whom 
' lie expected to prove an alibi orx the day named in the indictment. 
'The Sol. Gen*l. stating, that he did not expect to prove the of- 
fence on that day, the Court refused the continuance; and this 
' -d^eetsion is assigned as error. The defendant's Counsel thtn 
Iraked for time to plead a former acquittal ; and took some half 
^4KMr to look for ^e record, but being^unable to fliidH^ tscllbt 



• 



n 









440 SUPREME COURT OF 6E0BG-%. 

Dacy M. The Stote. 



T7- 



Sol, Gen*I having examined his papers, into vhose custoclj Ikt 

indiojtment was traced, and not finding tfa& former indiotmeift^* 
' Ibe Court ordered the trial to i»*oceed, the Gqimsel for defend; 

«nt stating in his place, that there was such an isdietmentaiid 

order of acquittal^ which could be found, ii time ware aBowed; 

'and this decision is assigned as error. 

The State introduced one witness, who proved the recelpt^f 
. com from a negro by the defendant, in the early part of M^y, 

1352. The witness did n«t recollect the day^ btit said i^ was 

»ot the 1st. 

Ko other testimony was introduced. 

The Court charged the Jury, that if they believed, fronrdie 
evidence^ beyond a reasonable doubt, that the* defendant re- 
ceived cohi from a negro, without written permission from those 
aulhtfrized to give it, at any time within two years before tlie 

* finding of this presentment^ that they should find the defend- 
. ant guilty. 

, The defendant had previously moved for an acquittal, (m the 
ground that the ofience was not proved on the day charged, 
"which the Court refused ; and on this decision, as well as on the 

charge, error is assigned. 

The Jury returned a verdict of guilty. 

Afterwards, the defendant's Counsel moved in tftrest eljiid^ 
Hiont, and for a n^w trisd, and produced an order of 9^ifft, 
granted at May Term, 1853, granting aa acquittal to the de-, 
fendant, predicated on two successive demands for iariik tmd« 
the f enal Code. He produced also the bill of, indiotm^t, qa 
irhicfa said order was- granted, (which was found anaoog. Ae 
(SnoI. GenTs papers) and which was word for word witiii the 
present indictment, except that the other charged the oSmo^ 
^n the Ist June, 1852, and that iirthe description o{ih»iAmii 
between the words ^' a certain negro man alave" and ^of y^ 
Ipw complexion,'* there weroy in the otber. indibtinent, tba 
'woria^ ^^a wag^er," which are not in the preseat ind«dtaMM. 

• !l?he Court refused the motionfl^ hpldn^ Uie ftoot of iimUlff 
« jp the affra4NM eb^rKddi^ the tfoaulifiip^ita maiki^^ 

« • 

• V. 






MACON," FEBRtARY TERM, 1866- 441 



Dacjt m. The Utate. 



mid sentenoed tbe defesdant to tbirtj day's imprisotimentyiciiC 
pftjonent of coats. 

To yfhith refosal and sentence, the defendant excepts, anA 
error is assigned thereon, as well as on the Other points abova 
noticed. • 

L. N. Whittle, for plaintiff. 

« 

Sol. Gen'l DeGbaffi^nreid, for thcw State. 

J?y the Court, — ^Lttmpkin, J. delivering the opinion. 

[1.] The Court, was right in refusing to continue the case. 
The defendant proposed to prove an alibi by the witnesses who 
were absent; that is, that on tbe 1st day of May, 1852, the 
time stated in the presentment, when the offence was commit- 
ted, he was absent from home during the whole day. To this, 
the Solicitor General replied, that he did not expect to show 
that the misdemeanor was committed on the 1st, but on a sub^ 
sequent day in May. 

[2.1 This he was entitled to do, as the time need not be prov- 
' ed as'laid, unless where it is of the essence of the offence. 
And the facts may be proved to have occurred on any other 
ifj previou9 to the preferring of the indictment. The an* 
tboHties are not only uniform in support of this doctrine, but 
it has been tbe constant course of proceeding in criminal pros- 
eeations, from the highest offence to the lowest. All objections 
to this practice on behalf of prisoners have been repeatedly 
and uniformly over-ruled. (2 ffawJc9 P. C. J. 2 ch. 46 ; 2 
Jiisf.218; 3i6.230; IJIale'sP. 0.861; 2 /J. 179; Fo8t. 
7,8,-1 ^Chitty'8 Crim. Law^ 228; MaNally'B Ev. 496-7, 
€t 9eq.\ 4 StarldeB Ev. 1568; Starkie9 Crim. PI. 68; 2 
gktrk. Ni9i P. 468 ; 1 Phil Ev. 208, 514 ; St. Triah, 587, 
€06, 542, 552 ; Rex.v%. Ohannot% Eolt, 801; 1 Salk. 288; 
Tke^ State vs. Hanney^ 1 Hawks. JL 460 ; Com. vs. Hooting- 
l9ti, 8 Pick. 26 ; 9 Cowen 655; 2 Mason, 40.) 



442 SUPREME COURT OP GEORGIA: 



»m 



DtiQ.y vt. The Stale. 



But where the date o£ a particular faQt is necessary to afi^ 
certain, with precision, the offence charged, it must be proved » 
alleged. Consequently, several exceptions have been made to * ' 
tbe foregoing rule, namely: that it trill not be necessary to 
prove precisely thft time as laid. 1st.. In all ^ases where writ-' 
ten instruments are pleaded, th6 date, if stated, must corre^ 
pond witH the date of the instrument when produced in evi- 
dence on the trial. {Corn, vs, Lyon^ 2 Camp. 307, n. Fre^ 
man vs. Ja^j 4 Campb. 249.) ^d. As deeds may be plead- 
ed, either according to the date which they bear, or to the daj 
on which they are delivered — if a deed produced in evidence 

f 4 

bear date on a different day from that stated in ];he pleadingt 
the party producing it must prove that it was, in fact, deliv- 
ered on the day alleged in the pleading. Sdly. If any tmfls 
stated in the pleading is to be proved by matter of record, it 
must 6e correctly stated. (1 T. B. 656. 4 Id, 590. U' 
JEaaL 508. 1 H. B. L. 49. 2 Sound. 291, h.) The slight- 
est variance in any of these respects, will be fatal in felonm. 
In miademeanors, in some cases, they are amendable at ih6 
trial. 4thly. When the precise date of any fact is necessary, 
to ascertain and determine, with precision, the offence changed • 
or the matter alleged, in excuse or justification, any variance' 
between the pleading and evidence will be fatal. And loithf. 
Where time is of the essence of the offence, as in burglary aai. 
\he like, the oflfence mitet be proved to have been oommitteJ 
in the night-time, although the day on whi^ih * the offence is • 
charged to have been committed is immaterial. la mardec, 
also, the death must be proved to have taken place within s 
year aud a day from the time the stroke was given. (2JBtf»-* 
kin's Ch. 2S, ^90.) ^ ' . •' 

Of course, then, this waiver on the part of the State, de- 
stroyed tho materiality of the testimony. Indeed, it rendered 
it wholly inapplicable to the case. Nor was it forciiig a trifl}' 
by making a'dmiMions which cannot be done in civil suSK* 
Bnt it is like' striking out a count in a writ, or an indtf^iMlfti* 
to which, alone, the a()sent proof referred. 

[3.] We fMTc unanimous, however, that a new ttii ^MljM 



^ 



. MACO*, FEBRUARY TERM, 18S5. ^43 



Duty vs. The State. 



have been granted, after the kidictment in tlu) former case WM 

.found in the possession of the Solicitor Generai, and the or^ 

der of discharge and acquittal upon the minutes of the Co\iti. 

In view of the incalculable importance of tivie to the Courts, 

and the unparalleled exigencies of this busj-worklng age, when 

the habit of wine-bibbing even b discontinued, not so much 

from any moral conriction as to its danger or inutility, as from 

the simple fact, that men cannot afl'ord, as formerly, '* to tarry 

latig at the table I'* I repeat, that in view of all this, we mAy 

concede, perhaps, that some degree of laches was imputable to 

the party. We are called upon by Counsel to aebuke, indig- 

* nantly, the idea, that the profession are to become absolute 

drudges in hunting up papers belonging to the oflSces, &c. Let 

such appeals be addressed to those who lounge in castks of ia* 

dolence. We confess ourselves incapable of appreciating them. 

Svery body mast learn to labor. This is the fundamental law 

•of tfie universe. 



-" Nought is sleeping, 



From Uie worm of painful creeping 
To the cherub on the throne." 

It is true, that our sturdy ancestors held it beneath the con- 
dition of a freeman to appear at the return day of the writ, or 
to do any other act at th^ precise time appointed, (3 Black. 
Com. 278.) But those good old days of ease and indulgence 
are gone forever. And it is a vain struggle to attempt to re- 
tain or revive them. 

£4.] Conceding, as we do then, that Courts are and should 
be disinclined to relieve against verdicts occasioned by the neg^ 
ligence of parties ; still, where justice imperatively demands it^ 
it will be done. No earthly doubt exists but that the- defend- 
. ant has' been convicted and sentenced to a month's imprison** 
' ment in the common jail of tlie county, for an offence from 
which he had been fully acquitted and discharged. Negli- ' 
gence or no negligence, can justice demand such, the sacrifice ef 
'. *tihe liberty of a citizen, in order to preserve a rule ? We can- 
not sanction such a doctrine, especially as the State was not 
^without fault in this matter. Had the books of the Clerk beem 






.4M feOPKEME COURT OF ttfeOBGIA., , 

^- - . ■_ - ■ ^ - - ,"^ ■ I ■ M^W 

Pr^or*and Pe.iumgtoo, cavefttorS) V8. Coggio and IfcRory, propoonders. 

' — •— — ■ ' ■ ■ ■ ■ I ' ij — ' ■ 

l^a^ed and indexed as thej sbpuld have been, the order on the 
mumtoa could have been referred to instanilj* And, thoi 
a^in, the. indictment in the former case, was found in the poft- 
aedsioa of the Solicitor General, who, when applied to, as H^ 
record states, before the trial, denied having it, having over- 
looked i( in the huciied examination of his papers. 

Under all the ciccumstances, odious as' the criioe ma]^ be 
for which Daoy has been convicted, and , notwithstanding he 
escaped through a loop in the Statute, without having been 
. tried upon the merits ; still, shielded as he is under the immu- 
nity of the laws of the land, the judgment against him must be 
reversed and a new toal awarded. 






No. 76. — John Pryor and William Pennington,^ caveators, 
plaintiffs in error, vB. Matthew" Coggin and Robert McRo- 

• • RY, propounders of the will of John Coggin, deceased, de* 

fendants in error. 

■ * 

[];] It is the duty of the Judge to charge the Jury' on aU the materird* points 
sabmitted in a case and sustained b|r testimony, whether he be requeslef 
^ to do 69 in Writing or not. 

* Caveat to the last will and testament of John Coggin, fir^tti 

• the Superior 'Court of Pike County. Tried before J-txi^ 
STAEifts, October Term, 1854. 

4 

i 

» / In June, 1852, John Coggin made this will, and afterwards 

• died. On the trial, it appeared that he was at the time ^ 
wards of seveiity years of age. The witnesses to the will ietfli* 
fied, that in their opinion he was of sound and dispomng wA* 
and memory ; or at least, was competent to make a will ; 9iA 

' ' that he did so freely and voluntarily^ l 



« • 



If^COK, PBBRUARY TERM, 18&5. 445 

■ ' ■ I ■ I ■ ■ ■ ■ 

' Fryorand Pennhkgtoo, caveators, vt, Cuggin and McRorir, propomiders. 

• ^ — ; ^^ — 

It also appeared that the will was written by McRory, his 
aon-in-law, and who was one of the favOre^ legatees under the 
irill. Several olher witnesses gave it as their opinion, that 
testator was competent to make a will, and several testified that 
tkey did not consider him competent. 

Thomas Trice testified, that the testator exhibited to witness 
tbe paper propounded, and also another, and asked witness to 
read them ; and several times, during the reading and before 
and afeerwards, expressed himself dissatisfied with both. He 
asked witness to write him a will. He frequently asked witn^s 
to write him a will ; and after the paper propounded was execu- 
ted, saying he had no will. On one occasfon, witness was at 
testator's house, and Matthew Coggin was present ; and^ testa- 
tor,* several times, asked Matthew for his will, and that 'ht 
wanted witness to do that writing. Matthew gave the old man 
an old letter, and when asked by the witness why he did so, 
h^ replied that he did it to satisfy the old man. His ^ mind 
soon became indolent or forgetful. 

After the argument, the Counsel for the caveators requested 
' the Court to charge the Jury, that ^4f the testatou was dissat- 
isfied with his will, and was deceived, by having a letter hand- 
ed to him in place of it, that this, taken in connection with the 
fact that he- never mentioned having a will aUer it was read 
to him by Trice, and spoke as though he had no will, amounts, 
in law, to a revocation of thie will.** The Court refused so to 
charge, but charged the Jury, that exf^'essions of dissaiisfac- 
tion with the will, and repeated expressions of a desure to makd 
^UKOther will, did not apaount to a revocation. 

Counsel fbr caveators requested die Court to charge the Ju-. 
ry, " that if the testator was dissatisfied with his will ; a'Hd that 
hfiing an old man and nearly blind, he called for his will, and 
was deceived by a party interested in the will giving him an- 
<^er paper, that this amounted to such a fraud as would au- 
thorize the Jury to set aside the will ;" and this, also, the Courji 
'refnsefi to charge. 

The Court below also charged the Jury, that the will wis^s 
Qitt abs^lutdy void because it was drawn by MeB<^ry, whose 



-4«6 . SUPRBSffl COURT OF OE0lR6E4; 

Pryor aad Pconington, caveators, tas. Goggin aird McBoiy, poopooiuler?. 



wife was a ^principal legatee therein ; bpit that if it was di^va 
by McBory, and he was a principal legatee^ and th^e testate 
C£kpaoity, at the time, was at cdl dotibtfuly- thence Jury might 
set s^ide the will on that gr9un4 alone, unless they were sat^ 
isfied, from the evidence, that the testator knew the contents 
of the will when h^ executed it; but thai this rule did not ap- 
ply unless, in their opinion, the testamentary capacity of the 
testator was doiibtfuL « ^ 

The Court* ^Iso charged the Jury, that undue influence, to 
vitiate a will, must amount to moral coercion — ^mnst destroy 
the free agenqy of the testator; that incapacity before the 
will was made, amounted to nothing, if he wa3 of sound aai 
disponing mind at the time ; that it matters not how capricious 
iitie will was — ^how unequally it divided the.property of te8tat<H^ ' 
among hi^ children ; or even if it gave all to a stranger ; yet^ 
if'he had testable capacity at the time — understood the cqq^ 
tents of the will, and executed it voluntarily, no. Court on earth 
could set it a§ide or disturb its provisions. 

The- Jury returned a verdict sustaining the will; and these, 
ch^ges and refusals to charge, are now brought 4ip for revielf. 

McCuNE, for plaintiff in error. ' , 



. Gibson, for defendant in error. 
Bff the Court. — Starnbs, J. delivering the opimon. 

[1.] The alleged error upon which we find it our duty chief- 
ly to observe in this case id, the refusal of the Court below to 
instrudt the Jury that if when he asked for his will the testator 
were deceived by Matthew Coggin's handing to him lUiothdr 
paper in lieu thereof, which he destroyed, &c* this amoimta to 
.a legal revocation. 

It is true, that the request was not Hiade in writing; and ft 
is also true that the Judge did not, in so many word% rdfio^e ao M 
charge ^* but he omitted or failed to, give sucb ^^frastien* 
And the q^yiestipn is raised, wfaedier or iio^ be shoqljiluti^^'HlF 



t 






MACON, FEBRUARY TERM, 1855. 4*r 



, TryoT and PennliigftoD, cavefttors, vt. Goggin and UcBorj, proponndiers. 

n litis, under the circuiDStaiM^es ainl in consideratioB of the facts 
fe eridenee. • 

His* Honor, the Judge, certifies that no request was made tg 
'8im in writing. That intelligent Magistrate cannot m^an to 
intimate thereby, that as a consequence, he was under n» obli- 
^tion to notice the subject, if the requ^ were preferred or 
the point made by the Counsel verbally, «nd was material to a 
right understanding of the case by the Jury. No one know# 
'better than he, that in such case, it is the duty of the Judge to 
give instruction upon the point, whether it be presented in wri- 
ting or "not, if It be properly submitted, and in time. " 

* Such a point was presented in this case. If it were true that 
during the last few days of his life^ when he was ill in bed, the 
testator (knowing what he was saying and doing — and whether 
he did Or not was for the Jury to decide) had asked for his will 
yrith an intention to destroy it, or have it destroyed, and anoth* 
er payer whs given to him as said will, which he did destroy or* 
have destroyed, then this is a point very material indeed to be 
considered before this will can be admitted to probate. If the 
point were made verbally or in writing, and there were any- 
fa6ts to sustain it, it was the duty of the Judge to have called 
attisntion to it. Let us see if there Are such facts. 

' The record shows, that Matthew Coggin, a principal legatee 
aod one of the executors, states that the testator did call for 
'hts- will, when ill in bed, and at the time just stated, and that 
he (Matthew) deceived him by giving to him another paper (ai» 
pid letter) in its stead. It remains only to be shown that that 
letter was destroyed by the testator, or at his instance. 

We are told by Mr. Trice, that a short time previously the 
t^itor had expressed dissatisfaction with both the wills (which 
had been wiritten for him) that he had been dissatisfied a long 

. tame — that be wanted another will — that he did not want eitho* 
of those before him, ami that several times afterwards, (and,* 
as is shown, after the time when Matthew states he deceived 

'Wm with the letter) 'he spoke to him about writing a Will, and* 
*^as diou^ he did not have any will.*' And finally, on the* 
4u^ id^n Tkioe kM saw his, be said to Matthew, after theibr- 



♦ . 







'# 



Am ' SUP^EifE COtJRT OF 6E0Bfi(IA. . 



•• 



Pryer and. Pennington, caveators, r«. Goggin and McRory, propounden.. 

^ ■' ■ ■ ■■ ,.,■— 

13^ had eome id, ^^ Mr. Tricet has come, and I want thai wri- ^ 
•ting done/' Presently afterwards, Mr. Tiice says he became 
yeechless, and nothbg va^-done. 

It is impossibly to deny, that such eirciimstancea afford ^^re*^ 
dnmpdoBs which a Jury might think sufficient to audioruetib^* 
conclusion that the testator asked for his will for the pmrfoee 
of destroying it; and that he afterwards did <kst!roy it, sor sop- 
posed he had done so. 

It is true, as suggested, that on aomcf portion of both th^ days 
when Trice ha4 the interviews with hiw Jt(y which w^ ba^ jM 
referred jArticularly, the testator w4s affected by the paralysis 
with which he suffered, and became ^echless; and it is^posai- • 
ble that this may gp' to indicate that his mind wa^ affected, a)a», 
at the time: but this.wa^ a cOnsideratit^ proper for tbe7ury. 
We cannot tell what is its true value. It doe^ not show, bo^ 
ever, that the other matter should net have been properly sab- , 
' mitted to the Jury- 
Add to these reflections, the fact of 'Matthew Coggin's ad* 
vantage tver the testator, as his nurse, at bis bed side ; his in- 
teirest in the result, and the significfmce of the circumstancas 
upon which we have been dwelling is increased, and these pre- 
sumptions are stretigtbened. We should add, also, the reasoni^da 
Hiptive of the testator (as stated by himself wilii regard to Peo- 
lungton's l&nd, kc.) for desiring to change his will, and t^ 
presumptions increase, that4ie did destroy that old. letter, ai4. 
supposed he had destroyed his will. Finally, it wi}l be obeerv* 
ed, that this old letter was not produced by ibe exeei^oii^^ 
' whose interest it was to produce it ; which circumstance adift 
great weight to the presumption that it was destroyed. 

K these conclusions be correct, the Judge should have ci^td. 
attention to this view of the. case in his charge; aftd have told 
1%e Jury, in effect, that if Matthew had practiced tlii»deeej| , 
, upon the old man, and the latter had destroyed t^ l^lM^ 
/ blinking it was the will, such circumstances, were equival^it In 
\ a destruction or revocation of the wUl itself; aod have left il»< 
ti>. the Jury to say whether or not such Cuts WM in- ^MOtlr 
In eon^iectiofi with his faiAire 90 to do, th^ rinUfirthift 






* 






MACON, FEBRUARY TERM, 1855; «l» 



B#eveB» adm'r, Mc» tw. If attb«w». 



> ■ ■* 



vitrei in myt^g to tbe Jurjr ^at there were two muin queetiau 
•m the Cftse. 1. Did the testator kitow the coBtente of the w31 
MX the time of its execotion ? 3. Was be of disposbg miiid- 
and memory? By ignoring the circumstances on which we 
faaye been commenting^ and by this expression of two leading 
0i main consideration he excluded the idea that there^waa 
ffty other in the case. Whereas, if what we hare said be ri^ht» 
that which the testator had done equivalent to a destruction of 
the wiB, was just as important a question as his knowledge of 
its contests, or the soundness of his mind at the time of its ex- 
fention. The Jury may 'have thus been misled as to the ma- 
teriality or importance of these circumstances. 
'Let the judgment be reversed. 



Hq. 77. — Allsn Rekvbs, administrator, &c. plaintiff in error, 
vi. BoMULVB W. Matthbws, defendant. 

*[1.] Where a plaiotiflT had brought actions against several defendants, for the 
recover)' of certain negroes, the defendhuts having common cause efdefence^ 
^d an agyeemeut was entered into between the parties, that the several 
iflsnes should be determined by one trial, and that such evidence was to be 
adfflit^d on the trial of this case as would be admissible in either of tb« 

' ' cases : Hefd, that bj virtue uf this agreement, a defendant in one of theee 
' eases, though not the immediate party to the icase -which was tried, waa a 
competent witness. 

|t.] An admiiristrator is not, necessarily and as matter of right, entitJed to 
ceeov^propcity because his intestate died in possession of it. 

£3.] .An estoppel inpau results from acts or words, or both, which arc in- 
tended to induce another to act in some matter touching his interest, on 
"Which he does act, and by which an advantage is gained by hitn who 
speaks or acts, or by which injury results to the other party. It is foandeil 
in firaad, or in gross negligence ec^uivalent to fraud. 

[4>} Admissions which do not amount to an estoppel as thus defined, niir 



4 



» • 



* » 



¥ 



I 



4dt BdPBEM^ COURT OF GEOB&IA. 



i^awa » 



S- 



Beeres, adm'r, kc. vt. Mttthews. 



yet be good testiaaOQf against the party maldiig them, Irlien regarded tU^ 
ply ag evidence of title. 

Trover, in Crawford Superior Court. Tried before Judgo 
Powers, September Term, 1854. 

Tnis was an action for negroes, brought by the adnunistra- 
tor of William ReeVes, against the defendant in error, who 
claimed them under the will of William Cfl^veland: 

The mother of the negroes had formerly been the proper^ 
of Cleveland, whose daughter William Reeves married, butha8 
been in ^he possession of Reeves from 1827 until his death ia 
1850. William Cleveland, by a will dated in 1835 dnd pro- 
ven in 1844, had bequeathed these pegroes, after the death of 
W^illiam Reeves,* to the children of his d&ughter, Milly Beeve^ 
t)ne of whom was wife of the defendant, to whom he bequeathed 
them for life. There was much conflicting evidence as to 
whether Reeves, in his life-time; claimed these negroes as his 
his own or not — some witnesses testifying that he did, and that 
he had offered to sell part of them at different times ; and ofh- 
ers testifying, that he admitted the title to be in Cleveland 
and that he had only a life estate ; and that he knew the con- 
tents of Cleveland's will and had given it his sanction, a&cl 
claimed title under it. 

This •cas^'was one of several, brought by the same plaiolil^ 
against the different sons and sons-ip-law of Mrs. ^dilly Reev^ 
involving the same questions ; and it was agreed that this om 
should be tried, and that the issue of it should control £he otk- • 
>r8, and that such evidence be admitted on the trial of the oat 
case, as would be admissible in either of them. 

Upon the trials James M. Reeves, one of the defendants W 
thp cases in question, was offered as a witness fwr the deftfld- 
ant, and objected to on the ground of interest, which' olgedttai 
vas over-ruled by the Court and his testimony receive^ Ai 
this is assigned as error. 

The plaintiff's Counsel requested the Court to cfiftfg* "ft^ 

Jury— '^ 

Ist. Thait if Wittiam Reeves died m possesBkift Jf'iU^^^ 



I 

i 



MACOiT, SIJBRUARY TERM, 1865. «fil 



■n- 



■<.■> 



U«eve8y adm'r, ^c v$» Matthews* 



^TOeft sued for, tken his adminktrfttor is entitled to recover 
fcbem. 

2d. That if Wm. Beeves yielded the negroes back to Clove- 
hmd, without consideratiOD, it is a nudepaetj and cannot be 

enforced. 

* 

3d. That although Wm. Reeves may have admitted that t*ho 
.pi:opertjr was to go to the children of Milly Reeves after his 
death, yet, if the Jury believed that the negroes were given to' 
Milly Reeves i^ her life-time, they vested in her husband, Wm. 
Beeves ; and any promise without consideration, by him, ia * *. 
void. 

Which charges the Oonrt refused to give,' but charged the 
^ury, that if WilUam Reenres admitted that the title to the ne« 
ipoes w€» in Cleveland ; and, after Cleveland's dea4h, admit* 
ted that he held the negroes under his will, that such admis- 
aicm^ if unexplained, bound him and bound his representative,, 
^e t3<mirt charged likewise, that if such admissions were made 
by Wm. R^ves, either in express words or by his* general con** 
jbet) to the executor of Clevdand or to either of the defend^ 
•Jits, although they may not have been acted on by the defend- 
ants or the executor, yet, Wm. Reeves and his representative 
is eatc^p^d thereby^ and will not be allowed to claim die pro- 
{fdHy fgainst such admissions. 

Whick charges and refusals to charge, ure assigned as error* 






W. k W. C. PoB^ for plaintiff in error. 



^ • 



, f CuLVBRHOUSE, for defe?idant in error. 

* 

I ^ the Courts — Stahii es, J. delivering the opinion. 

[1.] Th^ point first made in this case . viz : that upon the 
tIkdtniBsibility of James Reeves' testimony, is contndled by the 
agreement entered into betwe^i the parties, (which is set fortk 
in -^e sUlement of facts accompanying thia case,) to the effect 
t sa^ evidence was to be admitted on the trial of one case 
W9»dd.^6 admisMbia m eillker «f Aem-r-a 8l^[Hi)atton wUi^ 



« 



i 



4H SUPREME COURT OF GEORGIA, 

■ ■ ■ .' '■ ;*! ■■ 

Beeyefi, admV, ^kc v$. Matthews. 

seems to have been adopted for the^exdnshre par pose of oliTift- 
ting just sach an objection as that made here. • 

[2-3 The Court was right ih refusing to charge, that if Wfl- 
Uam Reeyes died in possession of the negroes sued for, tfaea 
his administrator is entitled to recover. This point was settled 
by this Court in the case of Yeldell vs. ShinhoUter^ (15 Oa. 
189) ; and for the reasons which influenced that decision^ we 
refer to that case. 

[3.] The other points submitted make necessary a slight con- 
sideration of. the nature and character of an estoppel tn pai9* 
We need not pause to discuss the difference between soc^ mT 
estoppel and a technical estoppel. Suffice it to say, that this 
kind of an estoppel results from aoty or words, or both, whieb 
are intended to induce another to act in some matter tooekiflg 
his interest^ on which he does act, and by which an advantage 
is gained by him who speaks or actSj or by which injury re- 
sults to the other party. That is to say, one person, by his 
admissions or conduct, shall not be aHowed to influence ats- 
other, with whom he is dealing, and lead him into aline of eon- 
duct prejudicial to his interest, unkoyi llie pHrty esto|iped be ail 
off firom the power of retraction. 

In ail cases *' where an act is done or a statement made by i 
party, the truth or efficacy of which it wo«ld be* a ftaod on ftk * 
part to oontrovert or impair, there the character of an estoppel 
shall be given to what would otherwise be mere matter of erf- 
dencey and it wiH therefore becoiae binftng iipen a Jury eveft 
in the presence of proof of a contrary nature." {Stephen* «*. 
Baird, (9 Cow. 274.) WeUand Co. v$. Hatkawtsg, (8 Weni. 
483.) 

Of comrse, admissions which are made i& good laHli ^ If 
mistake, not the result of gross negligence, do not fall wi^in 
such definition, for this sort of estoppel (being adopted by the* 
Courts of Law from the Oouptk of B^t^ must b« famied fa- 
fraud or in gross negligence amounting to fraud. (1 St^ry ]%. 
§§286, 991.) Brw^r v%. Boe. ^ W. R. R. (h. {^JfeU 4«t) 

Let us try the point in question by this PuTiL Bow wiie 
,these:dofendai>U fagured by theseraamysfaas^f WitJipiiiJtotfM^ , 






- MACON, FEBRUARY TSRM, 18&S. 459 



ReeveSj adm'r, kc. vt. Matthews. 



Mpposing them to have been made, and supposing that the/ 
inflsenced the di^tribiition of the property? They were put to 
so expense by suQh distributicm, and have lost no rights by i^ 
and have been rather benefited than injured by the same. 

Though there is no issue here between the executor and tbo 
{daiBtiff in error^ yet we mity remark, that the former is not 
injured. He has discharged his duty, or what he supposed hki * 
^ty, .and eannot be liable for this distribiition, should the 
question ever be made 'With him. 

Hating ascertained this, let us look to the charge, whidr 
was, that ^^ if the Jury believed, from the evidence, that Wik- 
4iAm Reeves adniitted, either expressly or by his general con- 
duct to the defendants, or either of them, that the property m 
dispute was held by him for life under the will of Cleveland, 
and at his death belonged to defendants, and confiding on theM 
admissions, acted upon the same in any vfay^ then the admia^ 
sions.are conclusive on the plaintiff, and defendants must re- 
cover.'* 

Now, if we apply the principles which we have just undexM 
Stood governs in such cases, we find this instruction deficieat^* 
because the Court tells the Jury that tiie admissions are coneii^ 
aive, &c. if the defendants acted upon them in any tvatf. jTbe 
mlQ declares that the party must 8o acf that an advantage wA 
be gained of him, or an injury result to him, unless the other if 
estopped, &c. Bat the Court s^s, he shall be estopped, if he 
act oil the admissions in any way. This is plainly too loosf| 
and was of a character which might mislead the Jury. If the 
record had shown any such action on the part of the defend* 
tots, as marriage of the daughters for example, having suca 
property in po^ssion ; or if it had appeared that by reason of 
snch admissions, a daughter had claimed such property, ani 
this was generally known, and so claiming it she married^ these 
thixkfp would illestrate the rule. 

Befierence was made in the charge to admissions made by. 
Reeves before the death of William Cleveland, and it was ar- 
gued th^ the latter may have acted upon them, and have made 
a dii^ppsition if^ favor of his grand-children, other than he wodt 



« 



434 SUPBB&IE COURT OF GBORQIA. 

• 

Strawbridge vs. Mann et ah 

§ 

(bye made. This should have been shown, if any thing like 

* this were true. And in the absence of testimony going to show 
that such admissions ever came to the knowledge of Williaio 
Cleveland, and influenced him in any manner^ nothing is prov* 
en amounting, as we have seen, to an estoppel in pai^. 

^ The change of Court, as to the effect of these admissiong, 

• considered simply as testimony, ,was correct. 

[4.] The point made uppn the refusal to charge as requested 
in the second request of Counsef for the plaintiff ii^ error was, 
that if William Reeves derived title from Cleveland to the wo- 
aian Esther, a bare, promise, without 'consideration^ as to what 
disposition should be made of her after the death of his wife^ 
was void. 

; The doctrine thus contended for b correct enough in itself; 
k|t we are not sure, so far as it has reference to a promise that 
it would have been authorized by the facts. So far aa it re- 
ntes to admissions made by Reeves against himself, go.ing to 
show the character of his title to this slave and her increasei 
tbey may be looked to as evidence of such title ; or if such 
.^ere made and acted on in the way tee have pq^inied outy the/ 
may amount to an e8to|)peL 

. I^et the judgment be reversed. ' 



■*— r 



Ko. 78, — John J. Strawbridge, plaintiff in error, vn. BL T. 
^ I Mank €i al. defendants. , 

f 1.3 In 1841 , ?kfi.fa, is issued, and on it is entered nulla bona. In 1847, a eo. to. 
10 issmed m p\Mce of the /./a. In 1853, the ea. «a. is ezecated: JMd; that 
when the ea. «a. was execated, the judgment had not become void, imdcr 
« the Act of 1823, as to dormant judgment^. 

« Certiorari, in Bibb Si]qE»erior Court. ' Decision ]^ «^w^ 

* 



I 
I 



MACON, FEBRUARY TERM, 18^. ' 4SS 



Strawbiidge vs. Mann «t aL 



-i — r 



On ITorember 24th, 1841, John J. Strawbiidge obtained a 
judgment, in the InferiiMr Court of Bibb County, agabst H. T« 
Mann and Samuel Moore ; and on the next day, the 25th, fi. 
fa. was issued tbereoa, on which a return otnuUa bonavftA 
made, Dec. 30, 1841, dnd a receipt for costs entered by the 
Clerk^ July lllh, 1843, and no further entry. On the 17tb 
March, 1847, oa. aa. was issued on said judgment, and an en- 
try of arrest of the defendant, Moore, and bond and security 
taken, March 10th, 1853. At the next term, Moore not ap- 
pearing, the plaintiff moved to forfeit his bond ; upon which, 
Counsel for defendant moved to set aside the ca. sa. and de- 
clare the judgment dormant, because no return had been made 
on the fi, fa, or ca. %a. for seven years preceding the arrest^' 
and thai the fi. fa. was void because issued within four days 
after the judgment. The Inferior Court sustained the motion 
and ordered the arrest to be discharged, and the judgment te 
%e declared dormant. On certiorari to the Superior Court,' 
the Judge sustained the proceedings of the Inferior Court and 
cEsmissed the certiorari; and this decision is assigned as er« 
ror. 



"W. & W. C. PoE, for plaintiff in error. 

KuTHBRFORD, for defendant in error. 

By the dourt. — BbnnIno, J. delivering the opinion. 

Was the judgment dormant at the time of the arrest of 
Moore, the defendant therein ? 

This is the only question. 

The arrest took place within less than seven yeiuti from the 
date of the ca. $a. The date of the ca. $a. was within lees 
than seven years from the date of the judgment. The ca. ««l 
had been preceded by a fi. fa. on which was an entry of nmi- 
Id'tona. 

Such being the facts, was the judgment void by the oper%^ 



4&6 ' «UPREME COURT OF GEORaiA. 



a » 



Stsawbridiire vs. Mann ei al. 



tion of the Aet oommonlj called the Dormant Judgment *Act? 
TJ&e first flection of that Act is m these words : '^ AH judg- 
xfteats, that hare been obtained since the said 19th day at 
December, 1822, and' all judgments that may be hereafter ren- 
dered in any of the Cotirts of this State, on whidi no execmtioA 
vhall be sued out, or whidi executions, if Stted out, no return 

. * "ahall be made by Ae proper officer' for executing uid return- 
ttig the same, within seven years from the date of the judgment, 
abaU be void and of no effect: J^revided^ that notUng in this 
Act contained shall prevent the plaintiff or plaintiffs, in suck 
judgments, fvom renewing the same within the expiration of 
Ute said seven yeiirs, in cases where, by law, he or they would 

* be otherwise entitled so to do, but the lien of such revived 
jitdgipents on the property of the defendants thereto, shall op- 
erate only from the time of such revival." 

'This Statute, with respect to this section of k, is one of dtoae 
^ which this Court 'has applied the prinoiple o{ equitable Inter- 
'jactation. That principle is one which makes a Statute in- 
^ude a case which, though not within the words of the Statute, 
is within the mischief aimed at by the Statute; or exclude a 
case, which though within the words, is not within the misohi^ 
This principle, in both of its modes of operation, has, by this 
Court, been applied to thk Statute ; in tbe first of the modes- 
in Sooth V9. Williams, {2 Kelly, 252) ; in the second, in Wi- 
Uy et al. vs. KeUey et al. (3 Kelly , 275.) In Booth v$. WUr 
Uam$j one entry had been made within seven years from the 
jate of the judgment. That case, therefore, was not nfMm 

. the words of the Statute ; yet, the Court considering the case 
%o be within the mischief, held it to be ineluded within like 
Statute. In Wiley et al. vs. Kds^ et a2.. there had been ao 
return or entry during a period of seven years. That ease, 
Aibt^ioiteyWas within the words ot the Act, as they had been 
^^nstrued by the Court, in Booth vs. Williams; and yet, tins 
ftae was.con^eved, by the Court, not within the misciiiaf; 
4ind therefore, not within the Act 

Let us, then, applying this principle of interpretatioA W%^ 
#liiliila, ftee if tbi« case lis Witbin the Statute. . 



» « 






1 



k 



MACON, FEBRUARY TERM, 1865/ 457 

k * 

I 8trawbridge vt. Mann et at. 



.x^. 



And irst — if tbe case is within the Statute at all, it most 
be because it is within tbe migchief; for it id not within the 
W9rd$. There was an entry upon the/, fa. within fewer than 
ieven years from the date of the judgment. 

Wafi the case, then, within the miwhteff What was the 
ttischief theStatute wished suppressed ? It was some mischief 
wilicfa the Statute thought could be suppressed, by an entry's 
IMng made upon executions once ev^y i^ven yeftrs. So, in 
fleet, he)d this Court in BooiK vi, Wtlliatni. But what posr 

* dkHe mischief is there which could be suppressed by an entry** 
Wing made on executions once everj seven years, which would 
W^ he equally suppressed by the happening of what happened 
hi-tiiis ease-^-'which was, an entry ef no property, made wiUiin 

' seven years of the date of the judgment — a return into office 

• ff the/./a.,ioad6, within seven years from the date of the en- 
tsy — ^an iastung of a ca, m. occurring on the return of the /. . 
fi. — occurring, within seven years from. the date of said entry. 
Lastly, an arrest under the ca, $a, made within seven years 
irom die issuing of the ea. $a. ? I can oonceive of none. 

* If there is none, then what happened in this case, was auffi* 
tMit to prevent the ease flrem being within the mischief whick- 
it wad the object ef the Statute to suppress ; and so, to pre* 
TMit it from being within the Statute. 
' K And this ease is distinguishable f^om that of Booth v«. WU^ 

* *lklms, in tbia: that in that case, there was no returh <d the.jfi. 
/<l« into effice with an entry standing on it of nulla bona-^n^ 
]00aing of a ca. «a. on the return ef the fi. fa. — two things, 
loth of which, in this case, happened within the. first seven 
jears after tbe date of the judgment— two things, which, taken 
together, must be considered as calculated to be fully as ben* 
ifieiid^ creditors of or purchasers from a defendant infi.fa. 

' aa would be any mere entry ou the^. fa. made by the Sheriff. 

And this leads me to remark, that the mischief which thia 

Statute was intended to suppress, was, if we are to judge by 

^e preamble of the Statute which this amends, or by the prih 

, Ti§6 to die first section of this, itself, not a mischief to whicH 



« 



458 . SUPREME COURT OF GEORGIA. 



•*Hte 



Btrawbridge V9, Mann el oL 

^|l'» ' I -11 III I T ly ^L^^m^-^^mm^m^mm-^ 

defendants in judgmefit were subject, but a miBchieC to whidi 
the creditors o{y a,ndt\iQ purchaeers from sucli defendants wert 
subject. But in this case, the party asking the benefit of tht 
remedy, is neither suc^ a purchaser nor such a creditor. U4 
id one who stands in the place of sach a defendaxit^ or it a 
place no better than hid. 

Upon the whole' I may say that for these reasons and p^ 
haps others, a majority of this Court consider this case to b^ 
not within the Statute ; and iSo, that the judgment of ^he Cknfft 
bdaw ought to be rerersed. 

As for myself, it would not be right for me to leave the im- 
pression, that I think this Statute ^uch as to require kn entry 
to be made on executions once every seven years, to keep judg- 
ments fromi becoming dormant. I think the Statute such, that 
if one entry is made at any time within seven years froA the 
*date of the judgment, it will be sufficient to keep the jiidgmeiit 

. from falling within the Statute, and from becoming <Jor Jiant. 
1 am sure that the worolz of the Statute are such that if this is 

' dope, it will be sufficienh And in my opinion, the rule of 
rules in the interpretation of Statutes, is to follow the worck, if 
their meaning is plain. This rule, it is true, I should fee) my- 
self at liberty to depart from, in the case of some old EngH^ 
Statutes, and some Statutes of our own which pursue old Eng- 
lish Statutes, such as the Statute of Frauds and Statutes of 

* Limilation ; and in the case of a few other Statutes ifith re- 
ipect to which, as with respect to those named, a different rale 
has been used so long as to have become as well known as tbe 
words of the Statutes, arid to have been recognized in varioos 
ways by the legislative power as the true rule. 

But as a general thing, with respect to the Acts of our owa 
Legislature, I should feel myself rigorously bound down t^ th# 
word?. The words of those. Acts are, what the great majority 
of the people of the State shape their actions by. It is thfi 
words only, that are published to them — and when, after tiej 
have followed the words of the law, they are told by Uie Cooi;^ 
that they have not followed the law, the^ feel, ,ti^ for tkesfti. 






• • 



MACON, FEBRUARY TERM, 1855. 459 

^ ■ » * — ' ■ , 

Phillips V9. The State. 

idne law has* been tarned into a snare. And it is difficult to sajp 
\haX they have not the right so to feel. 

I am aware of nothing in the. Statute under consideration, 
ihat requires any departure from the rule, that the words, if 
their meaning is- plain, must govern. . 

At Comnlou Law, the lapse of time served merely as a ground 
for presuming a judgnlent paid, until shown to be uopaid^ So 
* Was it still more decidedly by our Statute of 1812. (CobVs 
Dig. 496.) This, it s^ems to me, is not a bad rule. Why, 
therefore, should we strain a Statute, to make the Statute re* 
peal more of the rule than the Statute would, without straining, 
repeal? The Statute, without any straining, will find a number 
of cases -to operate upon. Theae let it have. But why not 
leave the rest to the old law — that law which, for so many cen- 
turies, England has found to work well — that law which most, 
if not all, I believe, of the other States of this Union have 
adopted or enacted and still keep in force. 
* Of course,. therefore, I concur in thinking the judgment of 
ihe Court below ought to be reversed. 



No. 79. — Charles Phillips, plaintiff in error, vs. The State . 

^ OF Georgia^ defendant. 



[l.J The 12th section of the 7th division of the. Penal Code, provides — that 
" Any person who shall draw or make a bill of exchange, due bill or promis- . 

' soTj note, or indorse or accept the same in a fictitious name, shall be guUtj 
of forg<erj :'' ffeldj that under this Statute, it is not n^ cessarj that the in- 

, dictment should allege that the act was done " tcitfi intent to defraud.*' 



Yorg^ry^ in Bibb Superior Court. Tried before Juige Pow- 
sa8',.!Noveiaber Term, 1854; 



m SUPREME COU&T OP GEORGIA- 

^ — ^■^^■^^^■M— ^i^ ■ ■ ■■■■■ ■■■■» ^■■■■■■1 ■■ »^i ■ ■■■T '■ 

Phillips vs. The State. 



This wap aa indictment for the forgery of a promissory not# 
for Twenty Dollars, delivered to Henry Tiadall by the prisoD- 
a*, signed with the name of " H. C. Neitb & Son, No. 27, Bay . 
street) Savannah.*' 

t 

' The evidence showed that the prisoner had previously lor* 
rowed the sums pf Five aiKi Twelve Hollars from Tfaidall, re- . 
Presenting hi^ name to be Neith, and claiming to be one of * 
the said firm of H. C. Neith k Son. The note was gfiren in dift- 
charge of these two sums, adding three dollars ^' for the use (^ 
the m(mey.'' Prisoner had registered his name at the hotel 
as GhaFle^ Phillips, before the giving the note. 

It appecured that there was no such firm in Savannah as ^'B. 
C. Neith & Son." 

Counsel for prisoner requested the ,Court to charge, Aat il 
was necessary to prove thdt the note was actually made and 
signed by the prisoner, and that 4he delivery of th^ note by 
him is not conclusive proof that he made and signed .it. And 
'* also, that it must be proven that the fictitious name was as* 
sumed for the purpose of defrauding Tindall ; and that if il 
appeared that he had used the name before the oonmiiasion ef 
the forgery, it was evidence from which they might infer tbat 
it was not assumed for that purpose. On the fitSst and fourth 
grounds of request the Court charged as requested, but de- 
clined giving the second and third. 

This IS assigned as error. • 

Lamar & Lochrane, for plaintifi' in err<ft>. 

Whittle, for The State. 



Bjf the Court. — Lumpkin, J. delivering the ophikm. 
[1.] There were four requests made of the Court hf C^' 



u 



' f 



^ MACON, PEBRUABT TERM, 18*6. 461 

PhillipB vs. The State. 



ael for the prisoner, when th6 evidence was closed in thccase,' 
viz: First J That it was necessary to prove that the note was 
made hj the prisoner. 

Second^ That it was made by him in a fictitious name, witb 
intent to defraud Tindall, the payee. 

^ . Thirdy That it must appear, from the evidence, &at the • 
fictitious name was use(>by prisoner with a view to perpetrate 
the particular fraud alleged to have been committed ; and that 
if it was committed — that is, if the money was obtained before 
the fictitious name was used, the Jury might infer that it was 
not used to perpetrate a fraud. 

Fourth, ^hat the mere delivery of a note is not conclusive 
evidence of it^ execution. 

The Court gave the Jury the first and fourth requests as de- 
sired, but declined giving the second and third. 

The defendant was indicted under the 12th section of the 
7th division of the Penal Code, which is as follows: "Any 
person who shall draw or make a bill of exchange, due bill or 
promissory note, or indorse or accept the same in a fictitious 
name, shall be guilty of forgery ; and on conviction, be pun* 
ished by confinement an^ labor in the penitentiary, for any 
time not less than two years nor longer than seven years.'" 
(Cobb's Digest, 603.) 

It is clear, that under the law the ofience is complete, pro- 
vided it is made satisfactorily to appear, from the evidence, 
that the note was drawn and. delivered in a fictitious name* 
Under the 1st section of this same head of the Code, the gen- 
eral offence of forgery is defined ; and there it is made neces- 
sary to allege, jjq the indictment, and consequently, to prove, 
on the trial, the intent to defraud. But in the particular spe^ 
eies of forgery for which the defendant is prosecuted, as wiU 
fae seen from the Statute, no such requirement is made. The 
()<mrt is bound to presume that this omission was intentiondL 
The law makes the act the erime^ and infers a criminal inteiil 
from the act itself. 

Such was the , outline of the instructions submitted by hie 
Heaor, Jt»dge Powb&s, io .the Jury ; and notwithstanding iJif 



4 
1 



I * 



« • 



462 SUPREME COUBT OF GEOEGIA* - 

■■■''■' ' ■■ ■ 

Smith ei al. vt. The Slate. 

, • ■ ■ • ■ V 

l&genious argmneat of oar broCher Loychrane, we most say we , 
find no fault in it. 



Kb. 80. — ^William T. Sjm ith, et al plaintiffs in error, vs. Thb 

State of Gborgu, defendant. 

i 

[h] la Bibb Superior Court, it is the practice for the Court to call up crimi- 
nal cases for trial whenever the Splicitor General annonnces himself ready. 
At November Term, 1853, the case of W T S, a (defendant indicted for mis- 
demeanor was called, and he not being present, Lis Counsel stated that bjr 
an agreement, as he supposed, between himself and the Solicitor General 
. certain other cases were to be tried before this; and consequently, he had 
permitted his client to go home, but that he would have him in Court in 
ten or fifteen minutes, and claimed indulgence for this time. The Solicitor 
General did not remember having made any such agreefment, and moved to 
enter judgment on the recognizance ; the Court granted this leave, refused 
the indulgence asked, and ordered final judgment Before it vras entered, 
the prisoner made his appearance in Court, but the Court refused then to 
take up the case, or to open the order for final judgment: IleUij that this 
was error in the Court. 

§ 

Motion, in Bibb Superior Court. Decided by Judge Pow- 
ers, November Term, 1854. 

This was a motion to open the filial' forfeiture <^a scire fa- 
* etas issued on a bond for appearance of a party indicted^ the 
final judgment not having been entered, and was based on the 
.following facta : 

William T. Smith, indicted for a misdemeanor, had given 
bond for appearance, with John P. Smith as seeuri^; and 
fyling to appear at Novemb^ Term, 1B53, the bond was ht* 
flsited and $eire facias issued thereon. At November TenUi, 
1854;, the indictment being called up at the iastaaee of Ike 
^olieitor General, and the defendant not i^oipeariBg, Us Com- 
Miy Mr. Lo^rane, staled thai be understood die Sfl^skor Qati 






MACON, FEBRUARY TERM, 1866. 468 



&Bith €t al. vs. The State. 



aral to hate agreed with him that certain other cases should 
be called up before this, and had disnfissed the defendant from 
attendance ; and he asked for ten or ^t^en minutes time to 
send for him. The Solicitor General not admitting the exist* 
ence of such an agreement, the Court refused the request of 
defendant's Cotms^l, and immediately took up the 9cire faciai 
^-the Solicitor General said he would take final judgtnent, and 
'the Court made an entry to this effect on his docket. 

Shortly afterwards, but before final judgment was entered, 
Wm. T. Smith came ipto Court — offered to pay costs of $ci»fa. 
and his security offered to surrender him ; the Court said he 
bad passed on to other business and would not go back. The 
CiounseL afterwards moved to open the final forfeiture, and to 
' irrest the judgment, thereon; which motion the Court refused, 
and the defendant's Counsel excepted to that decisioB. It ap- 
^ared from the certificate of the Judge, that it is the practice 
in. Bibb Superior Court to allow the Solicitor General to call 
Wp orimhial cases as he is ready for trial. 

tiAMAR & LocHRANE, foT plaintiff in error. 

Whittle, for The State. 

t 
By the Court. — Starnes, J. delivering the opinion. 

It is our opinion that the Court erred in ordering final judg- 
ment upon this recognizance, for the following reasons : 
' 1. Because of the agreement between the Solicitor General 
and the Counsel for the prisoner, as it was understood by the 
latter. Such a misapprehension or mistake by Counsel has 
been recognized as a good ground for a new trial. It is not 
controverted but that the representation of the Counsel was 
^made in good faith. All the facts show that there was no in- 
teintion on the part of prisoner or bis Counsel to evade a trial ; 
and therefore, we think the Counsel was fairly entitle to the 
aKgbt indnlgeiioe a^ed, or to have been^fui^^qpon some other 



464 SUPREME COURT OF GEORGIA. ' 

x^ . . : . c : 



Smith et al. tt. The State. 



reasonable terms before judgment ^as entered upon the scire- 
facias. 

2.' Because the case was taken up out of its regular order* 
It is said tbat this is an arrangement common in the Superior 
Court of Bibb County; that the pressure of business makes 
the practice expedient, b j which the Solicitor General may caB 
up any criminal cause at any period of the term, when he '» 
ready to try ; and that defendants mu^t be held rigidly to dus 
rule. 

This practice may be expedient. We will not say it is ndk 
so. £ut it certainly is a very unequal one. Without distm^ 
iDg it, we will now only say, that where such a practice doeis 
obtain, where this great 'advaQtage ia giren to the proseettting 
officer for the State, there is certainly the more cause wiry a 
reasonable indulgence to the prisoner should be granted. TSct 
why he should be indulged' generally, or relieved from a rigi4 
enforcement of the law ; but a cause why he should have ac- 
corded to him an indulgence reasonable and just, under tte 
oirctimBtances ; and Buch, we think, was the charactet* of ditt 
asked for here. 

8. Because this defendant was surrendered before final jndg* 
tttnt on the scire facias, as the bill of exqeptions shows. 

In this judgment, securities aie iQterest^d ; and their ri^ts 
tee to be considered. We are all, as a Court, fkmiliar widi 
the practice which allows a security, upon a recognisance, to 
4ischarge himself at any time before final judgment, by sur- 
rendering the prisoner and paying the costs of scire faeias. 
We were of the opinion that there was some Statute on thift 
Subject, but have not been able to find it. The practice may 
be of Common Law origin. At all events, it is % reasonable 
practice — and a just one, as applicable to this 'particular case. 

Let the judgment be revesed. 



* 



MAOOK, F8BBUAKT tBRM, lfl66. 4^ 



* V m m 



• • 



• 



""Hayoeso^. The State. 

I 

JDsK^ifi £« Haynes, plaintiff is error, vs. The Statb 07 

G BORGIA, defendant 

{!•} A« to faow far the credit of impeached witocsse^i may be considered •• 
rcatorod, depends much upon the nature as well as the extent of the corrob- ' 
orating testimony, viz: whcthtr they be corroborated as to the warn, ra- 
ther than as to immaterial IsctP ; tlso, to the number of particulars In 

' wltloli tbey are corroborated. 

ftJJ To reduce a homicide from murder to manslaughfer, tl« alayer is aft 
., otxiigttdt before the mortal .wound is giten, to retrtat fVam his domioU or 
kis fiunily. 

£3.] If one entitled to the Joint use of a well, go there to draw water for hia 
fiunily, and upon a sudden affray, in the heat of passion, take the life of ib«, 
other joint-tenant, in consequence of a sudden violent attack made 'vp«& * * 
kkm by the latter, the killing will be nianelaugbter. unless made necessary 
ta save himself from daath or some great bodily barm. 

{4.} Before the law of necessity can ejcist, a cause of necessity must exist 

£5.] To constitute justifiable homicide, se defcndcndo^ the slayc r must be &ult- 
less ; he must owe no duty to the deceased — be under uo obligation of la# « 
to make his own safety a •eeondary object ; otherwise, he is amenable fo 
ike law of the land, whhoat any immunity under the shield of neiDasaity . ■ 

[C] This Court stands pledged, by its past history, to abolif h, to the axteoi 
of its power, all exclusionary rules which shut out any fact from the Jujgr 
which may assist them in the ascertainment of the truth of the issue com-« 
mitted to tlieir trial and decision. 

Murder, in Fulton Superior Court. Tried before JudM 
Earner, October Term, 1854. 

While iiqpannelling the Jury in this case, the St&te put 
iq>o& the prisoner one Keuben Hajnes^ and also one WiHiam . 
Mg Williams, without first administering either the oaths pre- 
scribed hy* the Statute of December, 1843, or the oath pre* 
scribed by the Act of 1853, to wit: ** Have you any conscies- 
tloas somples with regard to capital punishment." The bill 
of exceptions states that the prisoner accepted both the Jurors, 
iritlioBt requesting the oaths to be administered. 

The State also put upon the prisoner one Thomas A. W^ 

* 



• 



'» 



• * 



m SU?RBME COURT OF aEOBOlA> 



-t-^m^mmt,^ 



Hajnes m. The State. 



•* * I !■< 



Hams, who was accepted by the prisoner, and was leqtdrad ^ 
be sworn in chief. Before' the oath, in chief, was admnusteiv 
ed, the Joror, himself, Toluntarily stated to t^ Court thathr 
was under the age of twentj-one years ; wA for this caose, he 
was set aside by the Court, .^^ without the coBsent, and eantnip* 
ry to the express wish of the prisoner." J. W. Cason one of 
the tales Jurors, before he was pat upon the prkoner, stated 
under oath, that he had a sick child at home vAa re^[iured his 
personal attention ;, and for this reason, asked to be^dia^diacged 
from serfiog as a Juror. The Court excused this Juror, wkb- 
out the consent of the prisoner. 

After the bill of iDdictment was read to the Jury, tjie esse 
' opened by the Solicitor General, and a portion of the evidence 
on the part of the State had been received, ^^a' Juryman by the 
name of Robert W. Fleming was, by the Court, and witllcMrt 
the consent of the prisoner, permitted to separate from hia Al- 
low- Jurors, under the charge of a Bailiff sworn to attend luii^ 
and go to his house in the city, and there remain some two 
hours, under the charge of the Bailiff, and then return to the 
. Jury, the said Juror having first sworn, that he had ^f^% 
sick child at home who required his personal attention.'* 

Among the trior9 appointed by the Court, was a Mr. Bemaii, 
f n Attorney at Law then residing in Atlanta, Fulton Coun^ ; 
after the trial was over, it was made to appear to the Cfanrt, 
that Mr. Beman had not resided in Atlanta six months, ao^ 
not more than three or four months, before the jtrial. 

After the first forty-eight persons summoned as Jurors wen 
^posed of, other tales Jurors were summ^ied 6y the Sheriff; . 
and out of which second set of tales Jurors, the balance of ike 
Jury was made up. 

After the evidence and the argument closed, the CooBSCt 
for the prisoner asked the Court to charge the Jury as fet 
lows: 

Ist We ask your honor to charge the Jury, thtt altlkettf^^ 
drunkenness will net excuse the commission of a crm^> and ^ 
though ^'a prisoner cap derive no privilege, from ib$imtm9tk^ 
untarily contracted by him ;*' yet, voluntary drMljBBiMHifiiNl-. 



* « 






MACON, FEBRUARY TERM, 1855. . . 467 



m in !•■ 



%A 



Haynes w. The State. 



indktmettfc fcr sitnfder, '^ the intozioation of defendant raaj 
he taken into consideration as a cireamstance, to show the act 
HVB not premeiKtated/' 

2d. We ask your Honor to charge the Jury, that a threat 
jaade mder excitement, no matter from what cause this excite- 
nent emanated, will not authorize a Jury to presume that an 
ftoi done ali^r that threat made was deliberately done, and that 
% homictde eommitted without any mixture of deliberation^ 
wlu^ever, cannot bo murder in the law. 

8d» We ask the Court to charge the Jury, though voluntary 
drankenness cannot excuse from the commission of crime ; yet 
%iien, as upon a charge of murder, the question is, whether the 
Mt done irn^ premeditated or done only from sudden heat and 
^myttlfifi the fact of the party being intoxicated, has heesk held 
ta he a circumstunee proper to be taken into consideration. 
* itik. That being intoxicated is no excuse for crifne ; yet evi- 
dpnee of drunkenness may be admissible to the question of 
malice, to show the dharacter of the homicide. 

6th. We risquest your Honor to charge the Jury, that if the 
' pwoner was sensible of what he was about to do and did the 
%et mieiWtiartdUy^ still, if the Jury are. satisfied, from the evi-> 
^ce, tiiat the kilHag was the result of a fear for his life ot 
flMrmoiB bodily harm induced by the improper unlawful act of 
' ieteased at the time of the killing, still, the Jury must, from 
ibe eiridence, determine whether this homicide was the result 
of malignity cf hearty or whether it was imputable to human 
innni^ 

i 0th« Th^ if the Jury believe, from the evidence, that Haynes 
Ittd been put in possession of this well and premises, Haynes 
HM not, by die law, compelled to run firom a trespasser, leaving 
Mt property to the mercy of the trespasser; but that, by the law, 
lit may legally oppose force to force, and that he may legally 
«ppM6 whatever fmroe the pressure of the ciroumstanoes de* 
Mnded, to prevent a felony or to jMrevent some serious, dan-, 
yious, bodily harm. 

«9A. That if the prisoner, when at the .well, was where he 
Ml » Iqgd figpbt to be^ Hiat be had a right te mMift diera 






4 

; « 

t m * 



468 SUPREME COURT OF GEORGIA* 

* i 

■ ■■ ^i<i M »iW I >■■■■■■ mmm ^nUmm^^iA^ 

Haynes vs. The State. 

■ ■ ■ ■ ■ :— . — ■ ^ . 1 

and there protect bis property or his person; and in Boeh case^ 
he is not obliged to retreat, bat may legally porsue his adver- * 
sary until be finds himself out of danger ; and if, in scH^a e(mf 
fliot, Haynes killed Griggs, it was justifiable. 

CHARGE OF THE COURT: 
This is a case, The State vs. Dennis E. Haynes and Qeorg^ 
Lofton and John M. Brown, for murder-— and th^ prfaon^,' 
Haynes, having severed on the trial, yon will consider tUsosse^ 
as against Haynes only. Ton have listened patiently and i^ 
tentively to the argument of Counsel. It now remains fbr tht 
Court to give you its views of the law which it deems appfioiMtf 
to the ease. You are judges of the law as well bb the feets." 
I desire your attention while I endeavor, as olearly and eonabi**' 
ly as I can, to give you my view* of the law, but you are jM 
absoltUelf/ bound by the law as given in charge by the (kalt. 
You have the right to be judges of it yourselv^. <, You are ikm 
exclusive judges ef the facts detailed by the witnesses. Tfllit 
indictment is « before you. It alleges that Dennis E. Hi^pM, 
on a certain day mentioned in the biH of indiMomt^ at • M^t 
tain place mentioned therein, did of his malioe afbrelboi^l%* 
imlawfuUy, wilfully and feloniously kill and murdet James;!. 
Griggs. To this charge the prisoner has plead not guilty, ant* 
thus has an issue been made up in which the Stote hdds' Air 
affirmative. The State must fuUt/ prove the prison^'a gii3^ 
•as charged in the bill of indictment, which you wiilhaf^ befei# 
you. The State, I say, must fully prove the guilt beyoiriW' 
reasonable doubt, of the crime as charged, before you ean fifed 
him guilty. Permit the Court to call your attention to g o B W < i * 
the rules of evidence as applicable to this ^ase. It is tbe yif 
vince of the Court to decide upon the admiasibtlity of eviJ h artU 
It is your province to judge for yomrselves^ what fiMteAaNm^' 
deuce eatablidiiee. You are excliisivdy to judge at""!*'' 
weight of the evidence and the crecBbility of liie 
Prisoner's Counsel contend that some of the WiUMfeMi 
been imj^eaehed. One mode of impftaehiftg idtoMk* & 
t|94il9^o^tiQi! w^M^ies, who testify A^ .thi )H pi 



t • 




r 



* 

. • MACON, PSBRUARY TBRM, 1865* 469 

Haynes m. The State. 

mt ■ . ' I . ■ I 1 , ■ ■ — — ,— 

^tb the general ehoraoter of the witness for tnith and veracity * 
ilk tiie neighborhood in which be lives, and from their knowledge 
*0f thi^ oharaeter they would not believe the witness on his' 
e^tii in a Court of Justice. If anj witnesses have been thus 
ji^qieaehed, jou have the right to set their testimony aside en- 
itftHj; and it is your duty to do so unless the testimony of suck 
Uttness is eorroborated by other witnesses, whose credibility 
has not been attacked ; and corroborated, you will give it such ' 
weight as you may think it entitled. The credit of a witness 
may be materially affected or totally destroyed by the manner 

' •f giving evidence, as by an ineonsistent statement of factk, 
kA, As to the doctrine •'^/abe in one point false in dH,'' if a* 
' witness swear wilfulfy ftUse in one material point, you may disre»' 
gutd his entire testimony, unless corroborated by the evidence' 
^some Unimpeached witi^ess or witnesses, unless it be attrib- 
vted to mistake or madvertence, want of memory, &c. If there- 
tea been any evidence in this cause impeached by any of these- 
ftries, you are at liberty to believe or disbelieve it, as you think * 

. proper. An accomplice, or one indicted in the same indict* ' 

• ^ent, not on his trial, is a competent witness — as to his credi* 
bittty, thk is a matter entirely for you to consider^ — ^take into- 
ooneidtration his relative position to the case. ' 

The Court charges you that the fact of his being indicted 9M ' 
«a aceompUoe, is a circumstance against his credibility. The 
weight to be given to such testimony, you must judge exclu* • 
sively for yourselves* Where a threat is proven to have been 
iBfde and susceptible of two constructions, the one an innocent, 
•tile other a criminal construction, the rule is, that you should" 
j^ve such threat that construction most favorable to the prie-'^ 
oner. But if yoti believe any threat was made by the prisoner = 
wUeh is only susceptible of a criminal construction, you should' 

' give that constinction. You are the exclusive judges of thSi^ 

^A crime or misdemeanor shall consist in a violation of a 
public law^ in the commission of which there shall be a union^' 
o#')eiirt operation of act and intention or criminal negligence 
. ^^Ml pmm>h ^aU be considered of sound mind, who is neithei" 






470 flKJFBSOfS COURT OF OEOBC^IA. 



-Ua 



Haynes vs. The State. 

I| ^ ■■■ ■ W I ■!.■ I I ■ I .1 > I 



■*■« 



jm idiot, ik lunatic or afflicted bj insant^, or who hftth anrived 
at the age of foorteea years, or under that age, if such peiSMi 
.knew the distinctibn between good and evil." ^^DrankeBBe» 
shall not be an excuse for ai^y crime or misdemfianor, imleai 
tfuch drunkenness was occafiioned bj the fraud, artifice or eoA* 
triranoe of other person or persons, for the purpose of hari^ 
crime perpetrated, and the person or perscms so oavstng- 
•aid drunkenness for such malignant purpose, diall be cwsid* 
ered a principal, and suffer the same puniahment ad would hare, 
been inflicted on the person. or persons eommittfing the offisnce, 
if he^ she or they had been possessed of sound reason aad dis- 
er^on/' ^^ Homicide is the killing of a human being oi any 
. age or sex, and is of three kinds — murder, manslai^gliter and 
JvBtifiable homicide." 

Before you can find the prisoner guilty of any offe»oe, you 
IBust be satisfied, from the evidenoe, that there was a .killing. 
Is Griggs dead ? If so, from the evtdeiice, who was the slay- 
«r ? If you are satisfied on these two points, n% ; that Qngff 
it dead, and that prisoner is the slayer^ then yo^ may inspire 
wdhat kind of homicide has been perpetrated in this otse — mnr- 
dar, manslaughter or justifiable homicide ? ^^ Murder is the un- 
lawful killing of a human being in the peaoe of Ae State, hf 

* a person of sound m^ory and discretion, widi maliee afore- 
thought, dther express or implied." The killing must bo nn- 
lawful* Justifiable homicide would not be an unlawful killiag. 
Sien what is malice ? ^'It is of two kmds^-^expiees and ia- 

' pUed« Express malice is diai deliberate intrntion, nnlftwfully. 
to take away the life of a fellow-creature, which is manifested bj 
•sternal circumstances capable of proof." Maliee shall be iofr* 
jplied when no considerable provocatiim appears, and wkeii a& 
tbe dircumstanoes of the killing show an abandoned and bi^J%- 

. Mnt heart There can be no murder without malioe, etther 
wpress or implied. You have heard what malice is. TSmm 
must be • deUber^Ue intention, unUwffuUj/ to take mmj Ifft^ 
fto^ constitute murder; a deliberate deeign umltnrfu^ to kiB. 
Vitor instance, ezpreis maUoe may be ahown by pfienma IbrMli 

. ta take away^the life af unather^ made reoemt^f 4(^f» f^U |4^ 



MACON, FEBRUARY TERM, 1856. . 471 

Hajnes m. The SUte. 

img. Implied nuJioe may be illustrated m I did it a few days 
ago, in charging the Jury in another trial for murder then be- 
ftre thi» Court: As if one were forioosly to ride or drive 
^broogh a crowded street, and carelessly kill a person by ri- 
^fing or driving over him, though there might not have been a 
dblibetate intention to kill ; yet, his conduct, evincing such 
ie^less disregard <^ human life, malice might be implied. Now 
h tt for yon to say whether Griggs is killed ; if so, by whom 7 
And if ydn find, from the evidence, that prisoner killed the de- 
ceased, and^hat the killing was done with malice, either ex- 
press or implied, then you ought to find the prisoner guilty of ' 
snurderJ 

^* Justifiable homicide, is the killing of a human being by 
commandment of the law, in execution of public justice^-by 
^nnission of the law, in advafiCement of public justice — ^in 
■self-defence or defence of habitation, property or person, against 
one who manifestly intends or endeavors, by violence or sur- 
prwe, to commit a felony upon either ; or against any persons 

.who manifestly intend or endeavor, in a riotous and tu« 
&nltuons manner, to enter the habitation of another for th^ 
purpose of assaulting or ofiering personal violence to any per^ 
•on dwelling or living therein." Now if is contended by pris- 
mer's Counsel, that this is a case of justifiable homicide. This 
Is a question for you to determine for yourselves, under the law 
mud the evidence. To f revent a mere trespass, is not sufficient 

, to justify a homicide* Homicide is not justifiable unless the 

. killing is to prevent the party killed from committing a felony. 
(Here the Court stated to the Jury what constitutes a felony 

. imder the law.) If, after persuasion, remonstrance or other 

gentle measures used, a forcible attack and invasion on the 

property or habitation of another cannot be prevented, it shall 

be justifiable homicide to kill the person so attacking or inva- 

tding the property or habitation of another ; but it must appear 

tfiat such killing was absolutely necessary to prevent such at> 

^ack or invasion, and that serious injury was intended or might 

mcerae to the person, property or family of the person killing. 

If ft person kill another in bis defence, it must appear thart 



■ 






• 



472 SUPREME COURT OF GEOBGIA, 

* Hajnesiw. Tha State. 



.the danger was so mrgenl a&d pressing, al the 4»Bie of tiie 
ing, that in order to save bis .own life, the kiltitEg <^ the other 
^as absolutely necessary ; and it most appear «lsa, diat iba* 
|>er8on killed was the assailant, or dutt the dagger in goMl 

. faith endeavored to dedine aoy fnrtlier struggle before Aa 
mortal blow was given. All other instaaete whkdi stoad upM 
the same footing of reason and justice as these enmnoatedi 
shall be justifiable homicide. A bare fear of any of these of- 
fences, to prevent which this homicide is alleged to have been 
committed, shall not be sufficient to justify the kiQing. |t 
must appear that the circumstances were sufficient to exdle 
the fears of a reasonable man« and that the party killing reaify 
acted under the influence of these fears, and not in the spirvt 
.of revenge. Take all the ciccuqaatances into considereJli(Ni. 
.Where was it? Who was there? Why was the prisoaer 
there ? For what purpose 7 What did he do ? What did 
deceased manifeMy intend to da? Did he intend to commita 
felony ? If you believe deceased intended to commit a fdony 

' on the prisoner, his property or habitation, then prisoner was 
justifiable. Was there any felony perpetrated or intended le 

» be perpetrated ? Were rocks thrown ? Pid they hit prisoner, 
or fall harmless at his feet? Was deceased rushing on him 
with a weapon likely to produce death ? Was a felony » 
ten<ted to be oommitted? Was it necessary to take Gtig/f^* 
life, to prevent the felony, or did the prisoner have reason %> 
apprehend that Griggs intended to inflict upon prisoner soi». 
serious bodily harm ; and did prisoner really act under Uie v^ 
fluence of these fears, and not in the epirit of revenge ? A 
bare fear will, in na case, justify a kilUog. What did Griggs. 
do ? What weapons did he use ? Did Haynes retreat? Did 
Griggs assault Haynes with rocks or pole ? Was the danger 
urgent ? So urgent that Haynes could not retreat ? In the 
opinion of the Court, Haynes was not justifiable in tajdiig 
Gnggs' life, if he could have avoided it by a retreat In safSa^. 
Was he influenced by fear at the time of the killing, or wHs Jbs 
actuated by deliberate revenge ? Had Bfaynes, as a reascwMt 
man, reason to apprehend dapger of his life«--^.iit 






t • 






MACON, FEBRTTARY TERM, 1856. 478 

Haynes vs. The State. 



'^ter diese fears 7 If he could have retreated and did not, in 
Ae opimon of the Court, this is not justifiable homicide. The 
daager nrast-have been urgent and pressing, and there must be 
auflh circumstances as Trould justify a reasonable man in so be- 
Beving. As has been read by Counsel, {Leffrede*$ case,) in 
tlte case of the person who with the pistol loaded with powder 
only. If Origgs acted so as to alarm the fears of a reasona^ 
ble man, and to justify a reasonable man in the belief that his 
Hfe wa6 in danger, even though it was not ; still, if the prison- 
er acted under the influence of such fears, then is he justifia- 
ble. 

As to that which took place at the house previous to the day 
of the killing, that is to be considered by you only so fkr as to 
ascertain whether there was malice or not in the prisoner. If 
there was any such provocation as would justify pris. ; yet, if he 
■'liad had time to cool, after provocation, before the killing, then 
such provocation cannot avail him. 

As to the possession of the premises and the well. In the ' 
opinion of the Court, if the Sherifi* put the prisoner in possess- 
ion, even if his possession be joint with Origgs ; still, Haynes 
would have as much right to go to the well or into that part of 
the house as he had been put into possession of, as Griggs had. 
He would, if he was in possession, have the right to break the 
lock without being considered a trespasser; and it would have 

* been a trespass for Griggs to lock up the well to prevent 
Haynes from getting water at it. The property spoken of in 
the Statute as an habitation, means a dwelling, kitchen or 
buildings contiguous to the dwelling. A store-house, even if 
the owner do not live in it at the time; and even a well, if in 
the curtilage. You have no right to kill, in protecting any of 
these from a mere trespass, but you may to prevent a felony. i 
If the well were locked by Griggs, it was a trespass only ; or 

' if in Griggs' possession, and Haynes broke the lock, it was only 
a trespass in Haynes ; and in a trespass of this kind, in tho 
defence of this kind of property, the party killing cannot le-. 

VOL. xvn-00 



.V 



«T4 SUPREME COURT OF GEORGIA. 

- * ' ■ ■ J M I ■ 

Hajrnes pi. The State. 

gaily justify the killing. It is for you to saj, under tbe eri* 
4ence, who had the possesaicm of this well ; and it ia for yon 
to say, whether this is a case of justifiable homidde; aad if 
you find it justifiable homicide, you will acquit the prisoner en- 
tirely. There is yet another kind of homicide ; and if the ev- 
idence shows the prisoner guilty of that kind of homicide, then 
it is your duty so to find him. (Here the Court read that part 
of the Penal Code in relation to voluntary manslaughter and 
involuntary manslaughter.) I allude to manslaughter. Man- 
daughter is the unlawful killing of a human creature without 
malice, express or implied, and without any mixture of deUk' 
oration whatever. Which may be voluntary upon a sudden 
heat of passion, or involuntary, in the commission of an im- 
lawful act or a lawful act, without due caution and circumspec- 
tion. Now is this a case of manslaughter, undeir this defini- 
tion of that offence 7 If so, is it voluntary or involuntary man- 
slaughter? Was there any actual assault on Haynes by 
Griggs? Provocation by words, threats, menaces or' contempt- 
uous gestures, shall, in no case, be sufiScient to free the person 
killitig from the guilt and crime of murder. Was there anjf 

' , assault or attempt to commit a felony by Griggs upon Haynes 1 
(The Court read a definition of an assault in the Code.) If 
there was, and there was not sufiicient time to cool and for de- 

• liberation, between such provocation and the mortal blow given, 
and there was no malice, either express or implied, then yoi. 
should find the prisoner guilty of manslaughter. Was there % 
combat ? Was there any fight between prisoner and deceasedt 
Who was the assailant ? Then what produced this k^ling? 
Was it on account of that sudden impulse of passion, 8npj>oi3ed 
to be irresistible? If so, then it was manslaughter only, tf 
there was time, between the provocation and homicide, suffi- 
cient for the voice of reason and ^humanity to be heard, then 
the killing should be attributed to deliberate revenge, and the 
killing will be murder. If you believe that Haynes had mal- 
ice before the killing, and had gone to the well to draw wafel^ 
and that Griggs then made an assault upon him, so fi^roe Mif- 
Joduce Haynes to kill him under the influence of mtdeii 



♦ 



*• « .' 



MACON, FEBRUARY TERM, 1855. 475 



HnyneB w. The State. 



mon, before lie had time to reflect and cool, this is manslaugh- 
ter only. 

The license to practice law. What effect that shall have on 
yomr minds, as evidence, is for you to say. This instrument 
proves only the fact, that Haynes was admitted to practice 
. law, and it does not prove any other fact. If the prisoner re- 
lies on this license to prove his good moral character at the 
^tirne of the killing, the license will not do so. Good moral 
'character, at that time, must be shown in another way by wit- 
nesses. As to Griggs* character, Haynes can't justify under 
Griggs' violent, overbearing or dangerous character alone, but 
you may look into that character of Griggs', to ascertain the 
motives under which Haynes acted, and to satisfy your minds 
on the ground of fear and apprehended danger from Griggs. 
To avail Haynes of Griggs' character, it must appear that 
Haynes was acquainted with Griggs' character for violence, 
fcc Look into this to see if Haynes was or was not reasona- 
bly actuated by fear. (Here the Court took up one written re- 
quest to charge ; and reading over the first ground, he said : 
The Court has already read you the Code upon the subject of 
drunkenness, and will read it again.) 

** Drunkenness ^11 not be an excuse for any crime or misde- 
meanor, unless such drunkenness was occasioned by the fraud, 
artifice or contrivance of other person or persons, for the pur- 
pose of having a crime perpetrated, and then the person or 
persons so causing said drunkenness, for such malignant pur- 
pose, shall be considered principal, and suffer the same punish- 
axent as would have been inflicted on the person or persona 
Mmmitting the offence, if he, she or they had been posaessed of 
■sound reason and discretion." If a parl^ kill another under 
tiie influence of voluntary drunkenness, it is the same as if he 
lull another when he is sober. 

As to the 2d request : The Court gave the 2d request in 
^large, as requested, and stated abw, that a threat which he 
lV0iild not have made, in his cooler momenta, or made under 
•teoi^anraiit of any kind — ^thiais entitled to very Utde weigbtt 



476 SUPREME COURT OT" GfflORGIA.. 



IVMB^i 



Haynes vs. The State. 



« I 



But if he were excited by a spirit of revtenge or malice 
Griggs, that may be regfurded with much greater weight inL 
^oomdering the question of malice. (Here the Court read the 
Sd request, and said this doctrine I think, is correct, if thero 
was snch a phrenzy as to make the prisoner unaccountable; 
but in this case the Court refuses to give this ground in charge^ 
to its full extent.) (Here the Court read the 4th request, and 
said, if he made threats while he was drunk, they were not en- , 
titled as if made sober.) Fifth request. The Court charged, 
as requested in that ground. Sixth request. . The Court said 
this is true, as to the force : but if Griggs was a trespasser 
and Haynes took his life, he cannot justify, even if it waa hi$ 
'Oton property. He ought to have retreated before the mortal 
blow was given, in order to justify the killing, if he could hare 
done so without danger to his life or person. This may be ta- 
ken into consideration to show whether there was malice or no^ 
(Here the Court read the 7th request and said, the Court will 
not so charge, but the Court charges, if Griggs only intended 
to commit a trespass, prisoner had no right to kill ; but he 
ought to have retreated, if he could have done so without injo^ 
ry to his life or person ; and if the prisoner retreated and was 
purstied by Griggs, and you believe from the evidence, that 
Haynes, so retreating, to save his own life, or to prevent Griggs 
from inflicting on his person some grievous bodily harm — under 
fluch circumstances, he can justify the killing. As to doubts, 
you must he fully satisfied that the prisoner's guilt has been 
fully made out by the evidence ; and it is the business of th#* 
State to make out this proof fully. No preponderation of ev- 
idence is sufficient, unless, to your satisfaction, the goilt of 
' the accused, is beyond reasonable doubt. If the evidence satis- . 
fies you as reasonable men, beyond reasonable doubt, that it 
sufficient. You are not to look for mathematical certain^, as. 
2 and 2 make 4. You have taken an oath, that you hare no 
prejudice or bias resting on your minds, either for or against 
^he prisoner at the bar ; that you are impartial ; look well into 
the evidence as delivered from the stand, and to the law; ani 
tf you believe the priscoier i8,giutey ofaoy wmo, sagr 9o;..«njl 






mkom, rBBKOAssx tbbm, nss. 4m 



Hajnea iw. The Sut«. 



t^j VfbaX dime that is ; and if ycm believe him gpulty of no 
«rinie^ render a verdiet of not guilty. 

Here the GoimBel reminded the Court, that he had not 
flharged as requested in the argument, to wit: that if Griggs,, 
tt the time of the killing was rushing on the prisoner with a 
weapon likely to produce death, and thus excited' the reasona- 
Ue fears of Uaynes thereby, so that he feared that if he did 
feet kiU Griggs thattbe said Griggs would kill the said Haynes, 
arin^ti^ponhim a serious and grievous bodily ham ; andif 
Haynes shot Griggs really under the influence of fear, and to 
prevent this felony, then Haynes is justifiable. And the Court 
•here <^iarged the Jury, if Griggi was using a weapon likely t# 
produce death, and was in striking distance of Hayxies, at the 
lune the fatal blow was given, or if Haynes was, by this weap- 
en, put in fear of his life or serious bodily harm, and really acl* 
id under such fear, he is justifiable. 

The Jury returned the following vevdict: 
• We, the Jury, find the prisoner, Dennis K Haynes, gnil^ 
of murder, and reconmiend him to mercy. 

The prisoner, by his Counsel, B. H. Overby and A. W. 
; Hammond b Son, moved to arrest the judgment on the follow- 
ing grotindd.: Because — 1st. It is appwent, on the face of the 
indictment, that the allegatlond in t^e bill of indictment are 
oontradictbi^ and repugnant; and therefore, contrary to law* 

2d. Said indictment charges two distinct offences, of differ- 
ent grades, against three different persons, in the same bill of 
* indictment, and in the same count, which is bad. 

8d. Three distinct offences cannot be legally joined by the 
BBme indictment, of different grades, against different persons; 
. and therefore, this indictment is bad, and a good ground in 
arrest of judgment. 

The Court, after hearing argument, over-ruled this motionu 

The prisoner, by hb Counsel aSDresaid, then moved for a 
new trial on the following grounds: 

lst« That the finding of the Jury is ccmtrary to law and tbf 
lOfidence given on the trial of said ease. 
'^ fid. fhat the Terdiot was eostrarytio the charge of the CoiirC»^ 



* 



' 4TS SUpRmm COURT OF aSOKGIA. 

* ' l I 11 - r « , 1 .1 II ft-r*-T- , T i IF 

Haynes vs. The State. 

, ' ^ ; , , I 

3d. After the Jury was charged witii the cose and had heard* 
'a portion of the testimony given in the case, said Jury separa- 
ted, b J Robert W. Fleming, one of the Jurors impanndled to 
try said cause, having left his fello^- Jurors and gone to Us owii 
house, where he remained about two hours^ without the coasents* 
of the prisoner or either of his Counsel — it being made to ap* 
pear to the Court that he had a very sick child at his house in 
the city — and' the Court permitted such Juror to go home to see 
said child, where he remuned ^bout two hours, mrder cl^ge 
of a Bailff, appmnted by the Court for that purpose. 

4th. It was error in the Court to appoint, aK a trior of tte 
Jl^, Henry D. Beman, who was not at the time entilled to a 
i^te in the County of Ftilton for the members of die Leg^da- 
tttre in this State, there being no objecdon to said Beman by- 
die prisoner or his Counsel at the time. 

5^. l%at the Court erred in permitting die tret Juror attd* 
the secpnd Juror sworn, to be put upon the prisoner, widieiit 
being sworn upon his voir dire^ or without being asked whether 
they had any conscientious scruples as to capital puniskaent 

6th. That the Juror, Jesse Jenkins, after he w«w sworn to 
try tibe prisoner as a Juror, held a conversation wHb one Bmhh 
leel Langston, widiout the Court's or prisoner's ocmseBt, h^S(M^ 
the Jury was impannelled. (Addenda.) On swearing ssM 
Langston, be stated that Jesse Jenkins, a Juror, after he had 
been before the triors, came back to where he was sitting be- 
fore he went before the triors, and voluntarQy commenoe^ ^" 
conversation with said Langston, and asked said Langstte tf he 
thought he would get home that night? and the said Langstbn 
toM the said Jenkins that he thought not ; tiiat he thonght-to 
wto good for tiie week, or words to that effect. And the said 
Juror furtiier Said if I had not made the remark, thM^if HuQttt^- 
org were not satisfied, that he wotdd satisfy if he had t6 putt elf 
his shirty Overby woidd not have taken him. 

7th. That one of the Jurors, William McWillimns, afiiMr be* 
was sworn to try the said causcy held conversation f^itlr&etff 
Vf. HarviHe, without tiie consent of the pHiK>n^ tir ObAk- 
(Aitfenda.) Ifir. HarviUe, sworn, says: ''9hW alW«M II » 



I • 



* 



•MACOar, l?EmXJ ART TERM, 185&. 4m 

r-; « 

HAjmeft lu. The State. 

liumB, tbe aeeond Joror^ one of th^ triors, came back into tbe ' 
Court ro9m and said a Juror who had been put on the triors. 
vas AO badly scure4 be could not talk ; and not bearing what 
Bsid McW^U^^kB^ daid, said MoWiUiams repeated it; and that 
tibiatis all the conversation be reoolleots. 
. 8tb» That a Jumr, Tho's H. Williams, was put upoft tbe 
prisoner without any preliminary questions being asked by the 
Solieitor General and accepted by the prisoner; and after 
* that^ the CojBurt, on its own motion, discharged the Juror, coa- 
tirary to the Express wish of the prisoner, it being shown to the 
Court ttii4isr oalh^ of Juror, that he was under 21 years of age. 

9ih. It was error in the Court to discharge J. W. Cason, 
0ue of the tales Jurors, upon his own motiou, without conseat 
of tbe i^iBotier. (Addepku) The said Cason, on his oatib, 
paying tikiit his wife was sick and H^iuived his p ors — al alte»- 
tiouy at ^t lime, at home, on that accoml. The Court evr^d 
ia not arresting the judgment upon the ?erdict for the grounds 
. slated m iha melion to arrest. 

10th. It was error in the Court to diarge the Jury, that the 
license of tbe prisoner as an attorney at law, was evidence of 
lU^thing but his being an attorney at law ; and that they eoukt 
4ioi regard this as evidence of his peaceable character, at the 
Ipilie of tbe killing. 

11th. Prisoner's Counsel asked the Court to charge Uie Jury,, 
if they believed from the evidence, the defendant was in tbe 
i%htful possession of the well and appurtenances, at the time 
of the Jiomioide, that he was not bound to retreat from any at- 
tack of deceased, but could justifiably oppose force to f<Nroe'; 
«atod that the Statute gave defendant the right to defend bis 
person and property against any one who manifestly intends to 
commit a felony on either. The Court refused to give this 
.charge, but charged tbe Jury, that the defendant was bound to 
•retreat if he could, without danger to himself, before the mor^ 
tal blow was given ; and that the property mentioned in the 
Btatttte had reference only to the habitation of the prisoner — 
vamoke-hottse, kitchen or ^ch property, on which a felony could 
/MjSOnomitted; or if prisoner had a etorci even if be diid 



480 






SUPREME COURT OF GEORGIA. 



■ ■ ■■ 



Haynes vs. The State. 



iK>t live at it; and diat any thing tiiat to<^ place at the htam 
or well previous to the evening of the killing, was only t& be 
taken into the confli4er&tion for the puqioee of aseertaimng 
malice on the part of Hie prisoner ; which charge and retort^ 
to charge, the Counsel for the prisoner says was error in die 
CSomt; that the well might be within tM cartilage, and dna 
might he the snbject of^a felony. 

12th. The Ooort erred in refusing to charge &e Jury aecor- 
•ding to the written request famished to the Cddrt, he^s^ he 
commenced his charge by prisoner's Oounsel. 

ISth, The Court erred in charging on every grcund of dM 
written request handed him by the Counsel of the prisoafar, be- 
fore he commenced his charge, in not charging as iloquerted, 
-and especially as to the fifth ground; because the Court, as lo 
that ground, merely obse*)rved that he had already charged ^i% 
'wkhout reading the request handed him, to tiie Jury. 

14th. Counsel for prisoner moved the Court to^rant a nam 
trial on this ground, because the v^tUct of the JWy was deei- 
dedly and strongly against the wei^t of evidence given in the 
cause. 

15di. l%e Court ^red in compelling the Counsel fir the 
prisoner to announce, before the ver£ct wa» received by tli^ 
Solicitor General (after the Jury was called by the Cleikttd 
said they had agreed upon a verdict), or read by die Jury to 
tiie Court, ^Hiether prisoner desired to poll the Juiy, aMKn^ 
prisoner's Counsel insisted before the Couit that the verdkt 
should be . first read. And the Court, on request of prisottsr, 
polled the Jury before verdict was read, und^r the pnu^iee if 
the Courts in such cases. The Court gave, di^n, the piivSqt 
to the prisoner to poll the Jury after the verdict had been rsaii 
whioh he decKned. 

16th. That in polling the Jnry, the Court erred m adoagef 
each several Juror, « as called up, before tibe verdict was leai 
to him in open Court, ^^ is that your verdict ?" 

17th. It was error in the Court to charge the imj Stt-dlt 
subject of threi^. When one tjireatene to take aitay ^9Sb^ 
9Xiotimy reosojdy, brfore the kUlmg, is efridep«e^i«£rj|VWft 



MACOK, FEBRUARY TERM, 1855. 481 

^^— — » III- ■ ' ^"—^^ 

» 

Hajnes w. The State. 

malice) and the Court having so charged, Counsel for the pris- 
oner say it was error. 

18th. The Court erred in its illustration of implied malice, 
SB applied to the case before the Court on trial. 

19th. It was error in the Court to charge — " if the prisoner • 
ooidd have retreated and did not, in the opinion of the Court 
Ais IS not justifiable.** And the Court having so charged, 
the prisoner says it was error. 

20th. Prisoner introduced George Blackstock, who swore he 
flaw Griggs between sun down and dark on the evening of kilJ- 
ing, throwing rocks and chunks from the road over the palings 
into hi»lot ; had his coat off, his sleeves foiled up, bare-headed, 
appeared to be angry ; was swearing and was alone. 

On motion of Solicitor General the Court ruled out this tes- 
timony. 

After hearing argument, the Court over-ruled the motion for 
» new trial. 

To all of which decisions and rulings of the Court, prisoner, 
' by his Counsel, excepted and now assign the same as error. 



Ovbrby; Hammond & Son, for plaintiff in error. 



Sol. Gen. Bleckley, for defendant in error. 

By the Court. — Ltjmpkin, J. delivering the opinion. 

Counsel for the prisoner having relied on six grounds only 
ftr a reversal of the judgment in the Court below, the rest be- 
ing waived in the argument, the decision will be restricted to 
tfie first five — this Court declining to express any opinion as to 
the weight of the evidence. 

* • Ought the testimony of George W. Blackstock to have been 
rejected ? He swore that between sun down and dark, prece- 
ding the night on which Griggs was killed, he saw deceased 
growing stones and chunks from the road, over into the yard 
0f his lot ; that he was alone, with his coat off and his shirt 

'VMZTn.-61 - 



» ^-..,, 



t . 



• • 



482 ' SfTPEEMSI COURT OF GB&RCttA. 



** 



t 



Ha}mes vs. The State. 



dlfieves rolled tip; and that he was cursing and app^arri to 'be- 
in an angry mood. 

It will be borne in mind that the controYersy in this case iSy 
not whether Haynes killed Griggs. As to that, there is ne 
' ' . &pute. Bnt the question, and the only one ie, did he do it undw 
Bneh circumstanoes as will mitigate the ofieifee to manslaughter, 
or even make it justifiable homicide in self-defeiice ? And in 
ord^r to arrive at a correct conclusion upon tjiis point, it ishst- 
perta^t to as