Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017125703 Cornell University Library KFG 45.1.C65 General digested index to Georgia report 3 1924 017 125 703 A GENERAL DIGESTED INDEX TO GEORGIA REPORTS -INCLUDING 12 3 KELLY 4to'i0 GEORGIA REPORTS, T. U. P. CHARLTON'S " R. M. CHARLTON'S REPORTS, DUDLEY'S REPORTS, and GEO. DECISIONS, parts I. & 11. COMPILED BY T. R. R. COBB & W. W. LUMPKIN. ATHENS, GA: CHRISTY & KELSEA 18B2. Entered accordingro Act of Congress, in the year 1852, By Thos R. R. Cobb and Wm. W. Lumpkin, In the Clerk's Office of the Northern District of Georgia. TABLE OF TITLES, DIVISIONS AND SUB-DIYISIONS. ABATEMENT 1 ACCESSORY 2 ACCOMPLICE 2 ACT OF GOD 2 ACTION 3 ADMINISTRATORS AND EXECUTORS -7 1. Appointment, Qdalification and Removal 7 2. Pq-weks, Duties and Liabilities 9 S. Sales bt 14 4. ExECUTOES de son tort 16 5. dlstkibution of estates 17 6. Bonds : Suits thbkeon, Liability of Sureties 20 7. Returns, Accounts and Commissions ••• • 22 8. Suits by and against 23 9. Letters Dismissoet 30 ALLEVIATING LAWS , 30 AMENDMENT 31 1. In Supreme Court 31 2. In Superior and Inferior Courts S2 (o.) At Common Law 32 (6.) In Equity 36 S. Of Official Returns 38 APPEAL 89 1. From Ordinary 39 2. In Superior or Inferior Court. (o.) By giving Bond and Security 39 (6.) In forma pauperis 41 (c.) By Executors and Administrators 41 Ti. TABLE OF TITLES, DIVISIONS, Ac. ARBITRAMENT AND AWARD 46 ARREST 48 ARSON : 48 ASSIGNMENT 49 1. At Law 49 2. In Equity 50 3. FaAUDULENT ASSIGNMENTS, AND HEEEIN OF ASSIGNMENTS BY InSOL- TENT DeBTOBS 61 ASSUMPSIT 65 ATTACHMENT 68 1. When it Lies ; and Affidavit to Obtain 68 2 . Attachment Bonds 69 3. Subsequent Proceedings 60 4. Amendments op Attachments, &o 61 5. Lien of 61 6. Void Attachments 62 7. Attachments for. Contempt 62 ATTORNEY 63 AUGUSTA 65 A UTREFOIS ACQUIT. 66 BAIL 67 1. In Civil Cases 67 2. In Criminal Cases 69 BAILMENT 70 BANKRUPT LAW OF THE UNITED STATES 72 BANKS AND BANKING 74 BANK BILLS, CHECKS AND POST NOTES 79 BASTARDS AND BASTARDY 81 BILLS OF EXCEPTIONS 83 BILLS OF EXCHANGE 87 BILL OF PARTICULARS 39 BLACK ACT 9 GEORGE 1 90 BONDS - 90 1. Generally 90 2. Official Bonds 93 3. Bond for Titles to Land 96 4. Injunction Bond 917 5. Suits on Bonds, Parties, &c 917 BRIDGES '.'.'..'.'. IQQ BY-LAWS i(ii CERTIORARI jq2 CHARGE OF THE COURT '.'.'.'...".'..".'.'..".'..! ]04 CHARITIES AND CHARITABLE USES .'..'..' 108 CITIZENS ' ■■ jQg CLAIMS AND CLAIM CASES 109 CLERKS TABLE OP TITLES, DIVISIONS, &c. vil. COLLATERAL SECURITIES US CONSTABLE , 114 CONSTITUTIONAL LAW '. 116 1. General Principles 116 2. Laws Impairing the Obligation of Controts 123 3. Ex Post Facto and Reteospectito Laws 125 4. Laws taking Private Property for Public Uses 126 5. Laws Affecting Trial bt Jury 129 6. Laws Containing Matter Differing from the Titles 130 T. Laws Imposing Taxes 130 CONTEMPT 182 CONTINUANCE 133 CONTRACTS 136 1. Generally : Valid and Void 136 2. As Affected by the Statute of Frauds 140 3. Construction of Contracts 141 4. Suits Upon 143 6. Reformation and Rescission of, see Equity, I. e. CONTRIBUTION Ui CORONER 146 CORPORATIONS 146 1. Charters : Rights and Liabilities 146 2. Rights and Liabilities of Members 149 3. Officers and Agents : Powers and Liabilities 152 4. Forfeiture of Charter, and Dissolution of Corporation 152 COSTS 153 1. In Civil Cases 153 2. In Criminal Cases 155 COUNTIES AND COUNTY OFFICERS 156 COURTS 158 1. Superior Courts : Jurisdiction, &o 158 2. Inferior Court's " • 161 3. Courts of Ordinary " 162 4. City and other Special Courts. 164 5. Justice's Courts 1^4 COVENANT. 16^ CRIMINAL LAW 16S 1. Indictment and Pleading : Vbkdiot, Judgment and Sentence. . 168 2. Evidence ^^^ 3. Practice • ^ ' ' 4. Particular Offences 181 5. General Painoiples 1^4 DAMAGES ^50 DEBT ^^^ DEBTOR AND CREDITOR 193 DECEIT 1^'' viii. TABLE OF TITLES, DIVISIONS, &c DEEDS 199 1. Geneeallt : Constrdction, &o 1^^ 2. Pboof of : and herein of Lost Deeds 203 3. Registet 205 DEVISE AND LEGACY 20G DUWER 212 DURESS 215 EJECTMENT 215 ELECTION 219 EQUITY 221 1. JCRISDICTION. (a.) General Principles 221 (6.) Account 231 (c.) Fraud and Mistake 232 (d.) Specific Performance • - 236 (e.) Reformation and Rescission of Contract 23"? (/.) Trusts and Trustees 238 (A.) Debtor and Creditor, and herein of " Creditor's Bills" and " Marshalling of Assets." 241 (i.) Other Cases 247 2. Injunction : Geanting and Dissolution 252 3. Pleading. (a.) Generally 260 (6.) Bills' 261 (c.) Demurrers, Pleas and Answers 262 {d.) Bills of Review; of Peace ; of Interpleader 264 («.) Multifariousness 265 4. Evidence 267 5. Decrees ,• 268 6. Practice: and herein of Amendments 270 7. Laches and "Waiter 276 ERROR 277 1. Generally : when it Lies, &a 277 2. Of the "Writ, Assignment, (fee 279 ESCAPE 281 ESCHEAT 282 ESTOPPEL 282 ESTEAY 284 EVICTION 284 EVIDENCE 285 1. General Principles 285 2. Documentary Evidence, Books, (fee 288 3. Interrogatories; Depositions; Discovery at Law 293 4. "Witnesses : Opinions, Examination, &c 296 5. Paeol Evidence: Admissibility, .... 486 26. Where P entered into a special written contract with R, as an over- seer for the year 184*7, and was to receive a stipulated portion of the crop at the end of the year, for his services, and in the month of Au- gust, R dismissed him from his employment, without sufficient cause or provocation; whereupon P,in the month of November of the same ACTION. year, iastituted his action against K, to recover damages for a breach of the contract: Held, that the action was not premature^ brought,- and that in regard to this particular class of special contracts, where the overseer or agent is wrongfully dismissed from the service of hia employer, he has his election of three remedies : 1st. He may bring his action immediately for any special injury he may have sustained in consequence of the breach of the contract by the defendant. 2d. He may wait until the termination of the period for which he was employ- ed, and then sue upon the contract and recover his whole wages. 3d. He may treat the contract as rescinded, and may immediately sue on a quantum meruit for the work and labor he actually perform- ed. Rogers vs. Parham. 8 G-a 190 27. If the declai ation allege a special contract for the rent of mills, to be paid in repairs, and ifr is proven on the trial, the plaintiff cannot recover on the common count for a qiumtum meruit, but will be held to the special contract, and the measure of damages is the value of the repairs agreed to be made, and the loss sustained by the failure to make them. Baldwin vs. Lesseur. 8 Ga "?! 28. The next of kin of a decedent cannot sue for his property without administration. Heed, Guardian, vs. Wood et. al. Ga.Decis.part II. . IW 29. Creditors and heirs, as a general rule, can only sue third persons through the representatives of the estate. The exception is, where there is collusion, insolvency, unwillingness to collect the assets when called on, or some other like special circumstance. Worthy et. al. vs. Johnson et. al. 8 Ga 236 SO. In Georgia the person injured is not bound to prosecute the offend- er to conviction or acquittal, before he is entitled to bring an action for the civil injury, except in treason and felony by the Common Law. Adams vs. Barrett. 5 Ga. 404 31. The Act of 1826, authorizing judgment to be entered up against the principal and surety on the appeal, is only cumulative, and the party may still proceed to enforce the judgment against the surety, by writ of scire facias, or action of debt on the appeal bond, as at Common Law. The Bank of Charleston vs. Moore. 6 Ga 416 82. When A is indebted to B for so much money loaned, an action for money advanced will not lie in favor of C. Davies, cashier, vs. Byrne. 10 Ga 329 See Abatement, 2. Pleading, passim. Ademption of Legacy. See Will. ADM'RS AND EX'RS— I. AppomiMENT, etc. ADMINISTRATORS AND EXECUTORS. I. APPOINTMENT, QUALIFICATION AND REMOVAL. II. POWERS, DUTIES AND LIABILITIES. III. SALES BY. IV. EXECUTORS DE SOJf TORT. V. DISTRIBUTION OF ESTATE. VI. BONDS, SUIT THEREON, LIABILITY OF SURETIES. VII. RETURNS, ACCOUNTS AND COMMISSIONS. ■\'III. SUITS BY AND AGAINST. . IX. LETTERS DISMISSORY. I. APPOINTMENT, QUALIFICATION AND REMOVAL. 1. In an application by two of the next of kin in equal degree, for letters of administration with the will annexed, the Court will give the pre- ference to the one having the greatest interest under the will. Soskiris vs. Morel. T. U. P. Charl 69 2. Upon an application for letters of administration de bonis non, upon the estate of an intestate, where all the distributees at law have died since the intestate, the Court will grant the letters to the person enti- tled to the estate, to the exclusion of the next of kin of the intestate. Clay i},s. Jaeltson. T. IT. P. Charl - 71 3. The application of a creditor for letters of administration should not be denied because the evidence of his debt upon its face is barred by the Statute of Limitations. ] Blade, et al. vs. Jones, Adm'r. et. al. 2 Kelly 306 10. The several Statutes of Georgia, giving sureties who have paid off fi. fas. the control against their principals, extend to the executors or administrators of deceased sureties. Nor will the principal be al- lowed to show that the executor is an executor de son tort. Harris vs. iG-a 621 V. DISTEIBUTION OF ESTATES. 1. The exception in favor of judgments, mortgages and executions, con- tained in the Act of 1*792, prescribing the priority to be observed by executors and administrators in payment of debts due by the estates of their testators or intestates, applies only to such executions, judg- ments, and mortgages as existed in the lifetime of the testator or in- testate, and had created a lien upon their estates. Bomgaux.vs. Bev- an. Dudley '. 110 2. If there be bond debts, and the executor, &c. be sued upon a simple contract debt, he may neither pay it nor suffer the plaintiff to recover in his action ; for if he do, and he have not assets besides to satisfy the debts due on bonds, he must satisfy so much out of his own estate as he has so paid, or suffered to be recovered from him ; for in case of 18 ADM'RS AND EX'RS— V. Distribution of Estates. an actiou brought, it is his duty to set forth iathe pleadings, the debt due upon specialties, in bar of such action. Ibid. 3. The nature of the debts at the time of the testator's or intestate's death, is to regulate the priority of then- payment, by the executor or administrator : and no preference can be created, either by greater diligence on the part of the creditor, or by the acts of the executor or administrator himself. Ibid. 4. A factor's lien for a general balance, accrued in the lifetime of his principal, does not attach to property coming into the factor's pos- session after the principal's death, by order of his representative. Alexander W. Willy vs. JR. (h W. King. Georgia Decisions, pari II... 7 5. An executor or administrator cannot create a lien on property of the estate, for a debt due in the lifetime of the decedent, to the injmy of other creditors. Ibid. 6. In the distribution of assets of an intestate, judgments rendered against the intestate, rank next to debts due the public. Davis et. al. vs. Smith et. al. 5 Ga '. 2H I. Judgments obtained against the administrator, rank no higher than the demands on which they are founded. Ibid. 8. Promissory notes are upon the same footingwith "bonds and other obli- gations." Ibid. 9. A covenant of wan-anty, when broken, is a specialty, and the dama- ges are to be paid rateably with bonds and other obligations. Ibid. 10. A surety who has paid the debt of his principal is subrogated to all the rights of the payee in the distribution of assets. Ibid. II. Where a judgment was rendered against an intestate in his life-time, as principal, and his surety, and the surety has paid off the same since the death of the intestate : Held, that such payment, under the Stat- ute of this State, had relatioii to the date of the judgment, so as to enable the surety to remunerate himself out of the property of the principal. Ray, Adm'r, vs. Dennis. 5 Oa 357 12. A dies leaving a wife and no children, but grand children living : Held, that the grand childi-en, under om- Statute of Distribution, take per stirpes and not per capita. Odam et. al. vs. Oaruthers, Ad'mr. 6 Ga 39 13. The "last 01 only child," as used in the Statute of 1804, as amended ADM'ES AND EX'RS— V. Dibtkibution of Estates. 19 by the Statutes of 1841 and 1843, refer to the only mrviving child of the mother. Holder and Wife vs. Harrell. & Ga 125 14. A dies intestate, leaving a -widow and one child. The widow mar- ried the second time and gave birth to a child by the second husband. A'a child dies intestate : Held, that the estate of the child descended to th0 child by the second marriage, to the exclusion of the mother. Ibid. v 15. An infant in ventre so, mere at fhe time of the intestate's death, but who was bom within the ordinary period of gestation thereafter, is entitled to inherit from such intestate, in a distribution among collat- erals. Morrow vs. Seott. 1 Ga '..... 536 16. In paying the debts of a decedent, mortgages have a general lieu on the estate on the same footing with judgments, in the or- der of priority of date. Frances Moore vs. Gei'main T. Dortic and J. Clayton, ExWs of Eugene D. Gooh, deceased. Georgia Decisions, part II. 84 Vl. An heir or legatee is not entitled to take possession of any part of the estate of his ancestor or testator, until it be delivered to him by the act of the legal representative, or the law. Albriston vs. Bird. R. M. Charl 93 IS. Funeral expenses, regulated by the circumstances of the deceased, and the usage of the country, constitute a lien or debt on the estate of the deceased, superior to all other claims. Palmes et. al. vs. Ste- phens, a. M. Charl - • . 56 19. Money may be taken in execution, if in possession of defendant. Rogers vs. Bullin's AdrrCx. R. M. Charl 196 20. Where money is made by a Sheriff at the suit of A, who has a le- gal or equitable claim to it, the Court, on the return of the writ, will, on motion, direct the Sheriff to pay the money over to an execution against A. Ibid. 21. And when such money was made at the suit of A, as administra- tor of B, the Oom-t will direct it to be paid over to an execution against A, as administrator of B, where it appears to be the eldest judgment against the estate of B, and no interfering or conflicting claims by the administrator or other parties are shown to exist. Ibid. 22. "Where a party comes into a Court of Equity to ask its assistance to interfere with the legal administration of the assets in the hands of the executor or administrator, he should at least state a clear prima facie case on his part, to justify such interference. Mills et. al. vs. Lumphin, Adm'r. 1 Kelly 513 — 514 20 ADM'RS AND EX'RS— VI. Bonds, 162 47. In an action by a bill-holder against a stockholder, founded upon the nth section of the charter, -which declares that the persons and prop- erty of the stockholders shall be pledged and held bound, in proportion to the amount of shares and the value thereof, which each individual may hold in said bank, for the ultimate redemption of the bills or notes : Meld, that the value of the stock was to be estimated accord- ing to the valuation placed upon it by the 2d section of the charter : viz. one hundred dollars. Jbid. 48. The cashier of a bank may do, independently of a board of direct- ors, whatever properly appertains to his office ; and one of these acts is to pay the debts of the^bank, by a transfer of negotiable securities. It is not, therefore, competent to show that such a transfer is void, by proof that it was made after the board of directors had resigned, and when the presidency of the bank had been assumed by a person who was neither an officer or director : Held, fkrther, that such a trans- fer, made under such cii'cumstances, is valid in law, but that it is ad- missible to prove these facts upon an issue of fraud, in fact, or not. Carey, Assigned, et. al. vs. Giles, RMeiter. 1 iS^a -.•»..-..... 9 49. An assignment made by an insolvent bank, to pay an existing debt to acrfedifor, is not void in law, by the General Law, or under the Act of 1818, because the amount of effects assigned is larger thaa Would be Seasonably sufficient to pay the debt, and because there is a stip- Xilation that the excess shall be returned to the bank. Ibid.. BANK BILLS, CHECKS AND POST NOTES. 1. A party Who pl'OVes the loss of a bank note, is entitled to have the same established as a lost paper, by pursuing the method prescribed by the rule of Court, and to I'equire payment of said established note from the bank from whence it issued. Waters vs. Bank of Georgia et al. R. M. Gharl. J 193 80 BA.KK. BILLS, CHECKS AND POST NOTES. 2. But he will be compelled, before payment of the same, to indemnify the bank from all liability on the original note. Ibid. S. The setting apart of bank bills, as a pledge or security, by a banking company, is not an issuing of such bills as currency. Collins vs. Central Banh etal. 1 Kelly 460 4. If the holder of a bank check neglect to present the same for payment within a reasonable time, and the bank fail in the meantime, the draw- er is discharged from liability, to the extent of the injury he has sus- tained by such failure. Daniels vs. Kyle and Barnett. 5 Ga 24S 5. The same doctrine applies to all holders, whether payees or transfer- rees. Ibid. 6. The Bank of Columbus made an assignment of its eflfects, and its char- ter was afterwards forfeited by a judgment of the proper Court, at the instance of the State. The Legislature subsequent to the forfeiture, aflBrmed the assignment, and placed the assignee upon the footing of a receiver. In a suit by the holder of the bills of the Bank against the assignee: Held, that a demand of payment of the bills, made by the plaintiff on the receiver, after the forfeiture, did not entitle him to recover ten per cent, damages, under the Act of 1832. Carey, As- signee vs. Gretn. 1 Ga 79 7. The Act of ISSY, making it penal in a bank to put any instrument in cu-culation, payable at a longer date than three days, applies to post notes only. Carey, Assignee, vs. McDougald. 1 Ga 84 8. In suing on bank bills, it is not necessary to describe them by .setting forth the numbers and letters. Carey, Assignee, vs. Green. 1 Ga.... 79 9. When the value of depreciated bank bills at a particular time, is to be proven, the proof should apply, with reasonable certainty, to that time, and hearsay cannot be admitted to prove their value. Bethune vs. McGleary. 8 Ga. 114 10. "Where the charter of a bank renders the stockholders liable after the transfer of stock, unless sixty days' notice of the sale is given in one of the public gazettes of the State, and provided the transfer is made six ' months before the failure of the bank, all stockholders who have given notice are exempt, unless the failm-e occurs within six months there- after. All other stockholders are liable for the redemption of the bills, whether they have transferred or not. Lane vs. Morris. 8 ©o. 114 11. The notice of the sale by the stockholder need not specify the name of the purchaser. Ibid. BASTARDS AND BASTARDY. 81 1 2. A suapension and failure to pay specie on demand, to bill-holders gen- erally, is sufficient to enable tlie bill-holder to sue. He need not prove a special demand in his case. Ibid. 13. The right given the bill-holders to go upon the stockholders for the ultimate redemption of the bills, is independent of any claim upon the assets of the bank ; one which may be asserted directly in his own name, and which the assignee or receiver could not enforce, as it con- stitutes no part of the effects of the bank. Ibid. 14. A bank bill, issued by an institution, taking its franchise from State authority, for the mere legal conveniences of a corporate body, is not a bill of credit, within the inhibition of the Constitution of the United States. The State vs. Calvin et at B. M. Charl 151 Baron and Feme. See Husband and Wife. BASTAEDS AND BASTARDY. 1. In an indictment under the 26th section, 11th division of the Penal Code, for bastardy, it is necessary to charge distinctly that the de- fendant is the father of the bastard child, Locjce vs. The State. 3 Kelly 535 2. The facts that the defendant is the father, and that he has failed or refused to give the bond in pursuance of law, for the education and maintenance of the child, constitute the offence. Ibid. 539 3. An indictment is sufficient, which charges the defendant with being the father of the child, and that he refused to give bond, when required to do so in terms of the law. Walker vs. The State. 5 Ga 491 4. A bastardy warrant reciting that the defendant has been charged, upon the examination of a single woman, with being the father of a bastard child, is admissible in evidence to prove the arrest, although it does not specify that he was brought before the Justice to give security, &c. Ibid. 6. 'Where the General Assembly by an Act declare, "that the name of S. J. "Wells be changed to S. J. Rakestraw, and that she be, declared le- gitimate and capable of inheriting, and like privileges in law as if she had been born in lawful wedlock: Held, that inasmuch as the illegiti- mate child was not, by the Act, made legitimate to any particular 11 82 BASTAEDS AND BASTARDY. person, the only effect of it was to change the name. Mdmondson and Wife vs. Dyson. 1 Ga 512 6. Bastards may be made legitimate and capable of inheriting, by an Act of Parliament. The Legislatm-e of Georgia possesses, the same power. JBeall, Adm'x, vs. Beall andBeaU. 8 Ga 210 I. "When an Act of the Legislature is passed, legitimating W and E to A B, their reputed father, and authorizing them to inherit from him, his assent will be presumed, more especially when the reputed father lives five years after the law is passed. Jbid. 8. While it is true, that too much countenance ought not to be given to the indulgence of criminal desire, nor encouragement to the increase of spurious offspring, still that policy may well be doubted, which would reject all provision for illegitimate children, and suffer them to be cast naked and destitute upon the world. Jbid. 9. Illegitimacy will be viewed with much less favor in criminal proceed- ings, than in mere questions of property and succession. Ibid. 10. Virginia, and many other States of the Union have, by Statute, adopted the rule of the Civil, in opposition to that of the Canon and Com- mon Law, whereby ante-nuptial children are legitimated by the subse- quent marriage of the parents, and the recognition by the father. Ibid. II. Courts and Judges, eminent for their learning, have regarded bas- tards as having strong claims to eqiiitable protection. Ibid. 12. There is a growing tendency every where, and especially in this country, to relax the ancient rigor of the law in respect to bastards, and to look to the Penal Code and to the guilty parties for the prohi- bition and prevention of fornication and adultery, rather than visit the vengeance of the law upon the innocent heads of the unfortunate off- spring. Ibid. IS. The law, in its humanity, will not deny to those who have been the authors of their disgrace, the power to re'pau' the mischief, as far as they can, by gift, will or legislative enactment. Ibid. 14. An Act, legitimating bastards, is purely legislative in its character, and not prohibited by the Constitution, and which should not only be supported, but construed favorably by the Courts. Ibid. Bequest. See Devise and Legacj/. BILLS OF EXCEPTIONS. 88 BILLS OF EXCEPTIONS. 1. The constitutional ■writ of certiorari is applicable to the errors of in- ferior jurisdiction, contra-distinguished from the " Inferior Court" — the judicial writ of certiorari is alone applicable to the " Inferior Courts" as before distinguished. £Jx parte, Simpson. R. M. Chart. ■ . Ill 2 The necessity of exceptions and 20 days' notice, applies only to the judicial writ. Ibid. 5. It seems, that if a party seeks to avail himself of an error of the Court, 80 as to carxy up his case by certiorari, he must reduce his ex- ceptions to writing at the time, and tender them during trial. Dow, Taylor & Go. vs. Goldsmith. H. M. Chart 288 4. And where no exceptions have been tendered during the term, but were presented to the individuals composing the Court separately, and on a succeeding day, and were thus signed by them, and such exceptions were contradicted by a statement signed by the same Judges, the rule was refused " upon the great irregularity of the proceedings." Ibid. 288 6. It is not necessary that exceptions should be taken in the Court be- low, in order to bring up a decision of a Court of Ordinary. Baser vs. Marlow et al. R. M. Chart 642 6. The bill of exceptions must be drawn up by the party or his attorney, within the time prescribed, and must be certified and signed by the presiding Judge, within that time. Doe ex dem. Truluck vs. Peeples et al. 1 Kelly 2 1. The certificate of the Judge below, being without date, the Court will presume in favor of public officers, in the absence of all proof to the contrary, that they discharge their duty in compliance with the law. Ibid. 8. The errors complained of should be plainly and distinctly specified in the bill of exceptions. Ibid. 9. The giving of bond and secmity, upon the carrying up of cases to the Supreme Court, is optional, not compulsory. Ibid. 10. The bill of exceptions will operate as a supersedeas only where bond and security has been given, or affidavit filed, in conformity with the Act organizing the Supreme Com't. Ibid. 84 BILLS OF EXCEPTIONS. 11. Where no bond has been given, or affidavit filed, the opposite party is at liberty to proceed to enforce his rights, in the Court below, by execution or otherwise. Ihid. 12. The Supreme Court will not take cognizance of any testimony whatever, that is not certified up according to law. Smith vs. Ker- shaw. 1 Kelly 260 IS. Bill of exceptions not having been signed by the presiding Judge within four days after the trial below, case will be dismissed upon mo- tion. See title Writ of Error, Smith, Adm'r. vs. Burn et al. 2 Kelly 263 14. Testimony on trial below, not embodied in the bill of exceptions, case will be dismissed. Ibid. • 15. Where the bill of exceptions to the decision of the Court below, on a demurrer to a bill of review, was duly certified by the presiding Judge thereof, which contained a clear statement of the points made and decided by him on the demurrer, as well as the grounds of the decis- ion, it was Held, the formal order overruling the demm-rer, and the special reasons of the Court below for its judgment, were not indis- pensably necessary to the hearing of the case in the Supreme Com't. Carey, Assignee, vs. Mice, Receiver. 2 Kelly 40T 16. General rules concerinng. Tarver vs. Rankin. Z Kelly 213 17. Where the bill of exceptions does not embrace the material facts upott which the judgment of the Court below was rendered, and which are indispensably necessary to enable this Court to review the judg- ment of the Court below, the writ of error will be dismissed. Cowles & Ward vs. GlarTc. 2 Kelly 882 18. May be taken and tendered at any time within the thirty days prescribed by law. Carey, Assignee, vs. Alexander, Judge. 4 Ga.. 609 19. Where the evidence is sufficiently set forth in the bill of exceptions, to enable the Court to understand and decide the points of law ex- cepted to, the writ of error will not be dismissed. Adams, Adm'r, vs. Barrett. 5 Ga 404 20. The wi-it of error will be dismissed, if no original notice of the sign- ing and certifying of the bill of exceptions is filed, as required by the Statute, nor will an acknowledgement of service of a copy notice of the filing of the bill of exceptions, be considered as a compliance with the Statute. Anderson vs. The Darien Bank. 5 Ga 682 21. If the bill of exceptions bears date previous to the trial of the cause. BILLS OF EXCEPTIONS. 85 and there is nothing in the record by which it may be amended, the ■writ of error must be dismissed. Perry i: Peck vs.Higgs. & Ga 43 22. If thirty-five days intervene between the signing the bill of excep- tions and the suing out and serving the writ oi error, citation and notice, the wi'it of error will be dismissed. Ibid. 23. Where the bill of cxceptionais signed and certified only eight days before the session of the Supreme Court for that judicial district, the writ of error should be made returnable to the next succeeding term for that district, such being the first term, within the meaning of the amended Constitution. Chapman vs. Stiles. 6 Oa 11-3 24. Notice of the filing of a bill of exceptions is not suflScient ; it must be notice of the signing and certifying. Duke, Adm'r. vs. Trippe. 6 G-a 380 25. The errors complained of below, must be specified in the bill of ex- ceptions. Weathers vs. Doster. 6 Oa 22*7 26. If no notice of the signing and certifying of the bill of exceptions is served on the opposite party, and filed, as the law directs, the writ of error will be dismissed. Haygood, Adm'r, vs. Neal. 6 Ga 452 2'7. The assignment of errors cannot enlarge the bill of exceptions, but must be superseded by it. Smith et al. vs. Mitchell. 6 Ga 453 28. The notice of the signing of the bill of exceptions, mnst be signed by the party or his counsel. Ihid. 29. It must affirmatively appear, either by the certificate of the presiding Judge, or the transcript of the record, that the bill of exceptions was signed and certified within thirty days from the adjournment of the term in which the cause was heard. Oloudis vs. 2'he Bank of Tennes- see. 5 Ga. 481. Russell et al. vs. March. 6 Ga 491 30. It must appear that the bill of exceptions was filed in the Clerk's office of the Court below. Hid. 31. The fact must appear affirmatively, that the bill of exceptions was sRgned within the time prescribed by the Statute. Justices, &c. vs. Sarrington. 6 Ga 6 18 32. The notice required by the Act of 1845, is of the signing, not the _^Zm^ of the bill of exceptions. Zaramore vs. Christian's Hx'rs. 7 Ga 59 83. When the Clerk of the Superior Com-t certifies that he sent up the original notice, together with the bill of exceptions, Ac. and it is not BtLLS OP EXCEPTIONS. found, it will be presumed to be lost in its transmission, and after suit- able proof, a copy may be established. Jefferson us. The Mayor, &c. 1 Ga 181 34. An acknowledgment of service of the "bill of exceptions, citation, and notice of the filing of the citation," is not a compliance with the Statute requiring notice of the sj^reinj' of the hill of exceptions. Ibid. 35. The notice of the signing of the biU of exceptions, must be filed in the Clerk's office of the Court below. Wells vs. Hasty. 1 Ga 158 36: The record of the cause should contain in itself, and without refer- ence aliunde, all the papers, exhibits, depositions, &c. which were given in evidence in the Court below, and which are necessary to the hear- ing in the Supreme Court. Stubhs vs. The Central Bank. 7 Ga.... 258 Z'l. If the admission of improper evidence is assigned for error, the sub- stance of it must be set out. If it was not material, its rejection was no ground of error. Ibid. 38. The rule of Court requires that a brief of the oral, and a copy of the written evidence, shall be "embodied in" the bill of exceptions. It is not regular, therefore, to annex it to the bill of exceptions, and refer to it as an exhibit, particularly, unless the identical document receive the authoritative stamp of the presiding Judge. Ibid. 39. The Act organizing the Supreme Court, requii-es that the bill of ex- ceptions should be true and consistent with what transpired in the cause. To comply with the Statute, it should contain the whole truth, or at least so much thereof as is necessary to the proper hearing of the cause in error ; and if it is defective in this respect, the presiding Judge will be justified in refusing to certify and sign it. Ibid. 40. Only so much of the record of the proceedings of the Court below need be filed in this Court, as is necessary to a proper hearing and determination of the cause. Eillen vs. Sistrunk. 1 Ga 281 See also, Papot vs. Gibson. 7 Ga 529 41. Service of the notice of the signing of the bill, by the plaintiff in error, inperson, is not in compliance with the Statute organizing the Supreme Court. Henderson vs. Henderson. 7 Ga 421 42. The Supreme Court has no power to alter or amend the bill of ex- ceptions. Harrington, Adm'r, vs. Roberts and Wife. 6 Ga 610 4a. The Supreme Com-t will hear a cause upon a case made. Papot vs. Gibson. 7 Ga 529 BILLS OF EXCHANGE. 8*7 44. The ■writ of error will be disraisaed, if more than ten days intervene between the filing of the original notice and the certifying of the transcript of the record. Crawford, Governor, &c. vs. Ferryman. 1 Ga. 558 45. Under the Act of February, 1850, all defects in the bill of exceptions, writ of error and citation, may be amended instanter, and without costs, in conformity with the record of the cause below. Higgs vs. Huson. 8 Ga SIT 46. After a bill of exceptions has been signed and certified by the Judge of the Superior Court, and filed with the Clerk, his control over it is at an end. Heard vs. Heard. 8 Ga 880 47., Under the Acts of February, 1850, the original bill of exceptions must remain in the Clerk's oflSce below, and a copy transmitted to the Supreme Court, as a part of the transcript of the record, or ac- companying the same, and if this is not done, the cause will be strick- en from the docket. Ibid. 48. Where the Clerk of the Superior Court sent up the original, instead of a copy of the bill of exceptions : Held, that the matter could not be relieved by suggesting a diminution of the record. O'Neal et al. vs. O'Neal. 8 Ga 439 49.,The brief of the evidence filed on a motion for a new trial, is not a part of the record to be transmitted to the Supreme Court, and it does not dispense with the necessity of incorporating in the bill of exceptions a bi'ief of the oral and copy of the written evidence. Wetmore vs. 9 Ga 546 BILLS OF EXCHANGE. 1. J. E. W. one of the mercantile firm of J. E .W. & Co. of Savannah, (whose commercial house was in Liverpool,) whilst in the latter place, di-ew his individual bill in favor of the plaintiff, on his house in Sa- vannah, who accepted the same, but afterwards suffered it to be pro- tested for non-payment : Held, that the payees of said bill were en- titled to take out process of attachment against the individual estate of the non-resident drawer, as drawer, in addition to the remedy by ac- tion against the firm of J. E. W. & Co. as acceptors. Richardson et al. vs. White. R. M. Charl 58 2. The payee or indorsee of a bill of exchange, may, in default of pay- BILLS OF EXCHANGE. ment, sue all the parties to it at the same time, and an action against one will not debar his remedy against the others. Ibid, 3. And such payee or indorsee may maintain his action against the drawer, without previously suing the acceptor. Ihid. 4. The master of a vessel consigned to 6, wrote a letter by H, the pilot who carried the vessel out, informing G that the ship had crossed the bar in safety, and requesting G to pay H $35, the amount of pilotage due, " and oblige your obedient, Ac." H indorsed on the letter—" Pay to L, or order." D, a creditor of H, sued him, and garnisheed G, (as the creditor of H) who returned under oath that pre- viously to such garnishment, L had presented such letter, indorsed as above, and that he (G) had promised to pay the amount to L. Quere? if such letter was a bill of exchange, or an order in the nature of a chose in action. Dibble vs. Oaston. R. M. Gharl. 444 ."). Sold, that if considered as a bill of exchange, the indebtedness of G, as acceptor, created a liability to L, the then holder, and not to H, who had parted with his interest in it. Ibid. 6. Held, also, that if it was a chose in action, the indebtedness of G, was created only by hia promise, and that this being made to L, pro- duced a privity of contract between G and L only, and that there- fore G had never been the debtor of H. Ibid. I. In suit upon bill, note, or other instrument, appearing upon its face to have been altered, the plaintiff is not required to produce evidence to explain it, where it is declared upon, as altered, unless the same is denied by the defendant on oath, under the Judiciary Act of 1799. Tedlie vs. Sill. 2 Kelly 131 5. By the Statute of 2fith Dec. 1826, notice of the non-acceptance of a foreign bill, drawn and indorsed in this State, and not payable at a chartered Bank, is not necessary to bind the indorser. Sartridge vs. Wesson. 4 Ga 101 9. A party who acquires title to a bill or note before due, but with ex- press notice of a defect or incumbrance, is so far identical with the previous owner, that his declarations or admissions while owner, may be receivedin evidence against such party. Olantonvs. Griggs. 5 Ga. 420 10. One who buys a note, bill, or other negotiable security, bona fide, and for value, after it is due from one who has no title to it, acquii-es no title kgainst the true owner. Thomas, Adm'r, vs. Kinsey. 10 Ga.. 421 II. "Where a bill is indorsed to A B, cashier of the Bank of Augusta: Held, that A B might sue in his own name, or the bank may sue, and a Buit in the name of A B, cashier, 15. The claimant cannot, for the purpose of protecting himself, show paramount title in a third person. Ibid 16. While the claimant may show thejudgment satisfied, he mustprcrt^e that the payment was made to the plaintiff or the person holding le- gal control under him. Ibid. 1 1. Where a plaintiff in j?. /a. founded on a judgment quando, levies on a negro claimed by a third person, proof that the negro belonged to the intestate at his death, and has never been in the possession of the ad- ministrator, nor controlled by him since his appointment, is sufficient to remove the omas. Allen vs. Matthews. 1 Ga • 149 18. Upon the trial of a claim case, where the claimant claims through a judgment of foreclosure, on a mortgage made by the defendant in. fi^ fa. to his vendor, the plaintiff in fi. fa. may impeach thejudgment and mortgage, and prove it fraudulent on the trial. Williams, Adm'r, vs. Martin. 1 Ga. S11 19. When mortgaged property is levied on under a judgment of fore- CLAIMS AND CLAIM CASES. Ill closm-e, and a claim interposed, the plaintiff in execution must prove title to the property in the defendant, at the date of the mortgage, or make out a prima facie case, by proof of possession in the mortgagor, at that time, before the claimant is put upon an exhibition of his title. Butt, Trustee, vs. Ifaddox. 1 Ga 49S 20. Where the property is claimed by a trustee : Held, that the mort- gage deed and judgment of foreclosure, (although the mortgage recites that the property is and has been, for some time, in the possession of the claimant in his natural character, and although the mortgage deed is attested by the claimant as a Magistrate,) do not raise a prima facie presumption of right and title in the mortgagor to the property. Ibid. 21. An order of the Court of Ordinary, directing the sale of lands be- longing to an estate, isa judgment of a Court of competent jurisdiction, and cannot be attacked and impeached collaterally, by an heir claim- ing such lands. Hence, when land is claimed at administrator's sale, ad- Tertised and offered under such order, it is not competent for the claimant to prove that the estate was settled, and the land divided without an administration, and that there were no debts to be paid. McDade, Adm'rx, vs. Burch, Adm'r. *? Qa 659 22. On the trial of the right of property under our claim laws, the pos ■ session of the defendant va.fi. fa. after an absolute sale of the proper- ty, is prima facie evidence of fraud. Carter vs. Stansfield. S Ga 49 23. Where, on the trial of the right of property in a Justice's Court, the same oath was administered to the Jury as that of Special Jurors in the Superior Court : Held, not to be error — the oaths being substan- tially the same. Ibid. 24. The privilege allowed to claimants, by the Act of 1821, of capricious- ly withdrawing claims once, must be exercised before a verdict has been rendered for damages in favor of plaintiffs in execution. It cannot be done afterwards, so as to take the case out of Court, not- withstanding an appeal has been entered. Attamay, Guardian, vs. Dyeretal. 8 Qa ; 184 25. A sells land to B, and gets judgment on the notes given for the pur- chase money, and levies on the land in the po3ses.sion of C, who inter- poses a claim: Held, that upon the trial of this claim, it is not com- petent for A to set up his lien as vendor, but that he is forced to go iato Equity to assert it. Colquitt vs. Thomas et al. 8 Ga 258 26. Upon the trial of a claim, it is not competent for the claimant to prove the bona fides of his purchase by conversations between himself and his vendor", at a time subsequent to the purchase. Ibid. 112 CLAIMS AND CLAIM OASES. 27. The claimaiat, under our laws, being entitled to the custody of the property in dispute, may contract with third persons as to the posses- sion thereof, and such third persons will be answerable only to the claimant. Bnt if the claimant be a feme covert, and incapable from such disability of interposing a claim, coming wrongfully by the pos- session herself, she can . confer no rights on others. Hardwick vs. Hook, Receiver. 8 Qa 354 28. A claimant cannot setup an outstanding title in a third person, to protect himself and defeat the plaintiff in _^./a. Beers et. al. vs. Daw- son, Ex'r. 8 Oa 556 29. The Claim Laws are cumulative, permissive, not mandatory. Wliit- tington vs. Doe ex dem. Wright. 9 Ga 23 30. A surety on a claim bond, against whom judgment for damages and ' costs has been given, together with the claimant, and who has paid oSiheJi.fa. is entitled, under oui' Statute, to control the same, for the purpose of reimbursing himself out of his principal. Keith vs. Whel- chel. 9 6*0! 179 31. When the Petit Jury in a claim case have returned a verdict giving damages against the claimant, and the verdict is appealed from, and pending the appeal the claim is withdrawn i Held, that the case goes on as to the question of damages, and stands for trial as before, and no execution can issue for the damages until the appeal is disposed of. StricJcland vs. Maddox et al. 9 Ga 196 32. Upon the trial of a claim, upon an issue between the claimant and the plaintiff in execution, upon the question of fraud in procuring a dis- charge in the Bankrupt Court by the defendant iu_^. fa. the mercan- tile boots of a firm of which the defendant in fi.fa. was a member before his application, are admissible to show that he was the owner of an interest in that firm not returned in his schedule. B 35 21. In general, what a party says, is not evidence in his favor, unless it be a part of a conversation, some other part of which has been already given in evidence ; but where the declarations of the party accompa- ny the act, it becomes a part of the transaction, and is admissible. Ibid. 22. The declarations of a defendant, antecedent to the fact, are some- times admissible, as tending to explain and reconcile his conduct, and to discover the qito animo with which the act was committed. Ibid. 23. Threats, accompanied with occasional acts of personal violenee, are admissible, to justify the reasonableness of the defendant's feai-s, pro- vided a knowledge of the threats is brought home to him. Ibid. 24. Repeated quarrels may be given in evidence, to establish the tnalo animo, but you cannot go back to a remote period, and prove a partic- ular quarrel, unless it be followed up with proof of a continued differ- ence, flowing from that source. Ibid. 25. The character oi the deceased, for violence, may be given in evi- dence, to show the motive of the slayer, where there is doubt whether the act was done in self-preservation. Ibid. 26. As a general rule, all evidence should be admitted, which will go to 176 CRIMINAL LAW— II. Evidenok show the state of feeling between the parties, at the time the offence was committed. Ibid. 27. If a libel appears in a man's handwriting, and no other author is known, it turns the proof upon him ; and if he cannot produce the composer, he is presumed by law. to be the man. Giles vs. The State. 6 Ga 276 2S. The original indictment, with the verdict and judgment of convic- tlon thereon, against the principal in the Jirst degree, is admissible in evidence to prove his guilt, on the trial of the principal in the second degree. Studstill vs. The State. 7 Ga 2 20. The record of the trial and conviction of the .principal in the first degree, is conclusive evidence of the conviction, and prima facie evi- dence of his guilt, upon the trial of the principal in the scco»(? degree ; and the onus lies on the defendant, to show that the principal in the first degree ought not to have been convicted. Ibid. 30. The confessions of the principal in the first degree, are admissible to prove his guilt, on the trial of the principal in the second degree, but not to prove the participation of the latter therein. Ibid. 31. It is not competent to prove that the defendant is of weak mind, where it is admitted that he is neither idiot, lunatic, nor insane. Ibid. 32. On the trial of the defendant indicted for murder, it is competent to give in evidence all that was done by the defendant at the time of the killing, and which constitutes a part of the entire transaction. Meese vs. The State. 1 Ga 273 S3. On the trial of a slave in this State, for a capital offence, the war- rant and preliminary proceedings had before the committing Magis- trates, alleged in the indictment, ought to be given in evidence on the trial, so as to show that the Inferior Court properly had jurisdiction of the offence with which the slave is charged. Judge, a slave, vs. The 3 Ga 173 34. "Where the evidence shows a concert of action between two parties in relation to a homicide, the Court may, in its discretion, admit the acts and declarations of one accomplice to criminate the other, touch- ing the common object, and such discretion will not be controlled by the Supreme Cowt, except in case of manifest abuse. Malone, alias Hall, vs. The State. 8 Ga 408 35. On a trial of slaves or free persons of color under the Act of 1860: Held, that it was illegal to admit in evidence the opinion of the com- CRIMINAL LAW— III, Praotioe. Ill mitting Magistrates, that the person charged was guilty of a capital oifence. Allen, a slave, vs. The State. 9 Qa 492 8 6. Where the prisoner is put upon his trial, a Jury impanneled and sworn for the purpose of trying him, and then a nolle prosequi is enter- ed without his consent, the plea of Autrefois Acquit-will bar any sub- sequent indictment for the same offence. Reynolds vs. The State. 3 Kelly 66 Si. In an indictment against a free white person, under the Act of 1840, for being accessory after the fact, in the receipt of stolen goods from a slave: ,HeZ(i, that in order to convict the defendant, the State must prove that the slave stole the goods. Simmons vs. The State. 4 Ga. 465 SS. A libel should not be read to the Jury, until the defendant has cross- examined the witnesses proving its publication. Taylor vs. The State, i Qa 14 39. On the trial of an indictment against a bank officer for embezzling a large sum of money from the bank, evidence going to show that he ■was in straightened circumstances, and was dealing to a large amount, shortly before the larceny, in the purchase of lottery tickets, thereby creating the necessity upon him for the use of large sums of money, is admissible for the consideration of the Jury : especially when cor- roborated by confessions of the prisoner himself, of lai'ge losses in the lotteries, about the time of the larceny. Bulloch vs. The State. 10 Oa. 46 40. On the trial of an indictment against a free white citizen, the State may give in evidence the confessions of a negro, when extorted by the pain of punishment, provided they are proved by a white person, not as independent testimony, but as an inducement and in illustration of what was said and done by the accused, he being present, con- senting that the negro should tell all he knew. Berry vs. The State. W Ga 611 III. PRAOTIOE. 1 . Where an indictment is about to be presented against a Justice of the Peace, for mal-practice, the Court will hear a motion for a continu- ance, until the witnesses of the defendant may be present. The State vs. Pettihone. T. U. P. Charl 300 2. The right of a prisoner, under the laws of Geoi'gia, to have a copy of the indictment, and a list of the witnesses who gave testimony before the Grand Jury, is waived, by not making the demand before arraign- ment. State vs. Oalvin et al. R. M. Oharl. 142 1'78 CRIMUiTAL LAW— III. Peactice. 3. The Court, on motion of the Solicitor General, and upon reasonable notice to the prisoner, (charged with felony, or with a crime which might subject him to penitentiary imprisonment for three years) will permit the names of witnesses to be indorsed on the indictment, who did not give testimony before the Grand Jury, and such witnesses may be examined before the Petit Jm'y. Ibid. 4. But without such notice, such witness cannot be sworn or examined. Ibid. 5. Where principal and accessory in a felony are jointly indicted, it is a matter of discretion with the Solicitor General, whether they shall be jointly or severally tried, particularly when they have joined in the general issue. Ibid. 6. The Court will not compel the prosecutor to elect, upon an indict- ment charging the prisoner with larceny, and receiving stolen goods, etc. where it appears by the indictment, that the charges relate to the same transaction, modified to meet the proof. State vs. Sogan. R. M. Gharl. 474 7. It seems that if an existing indictment be altered by the prosecuting officer, and submitted, thus changed, to the Grand Jury, who again retui'n " true bill," thereon, such informality will not destroy the se- cond indictment, even though nol. pros, be subsequently entered on the minutes, in reference to the first indictment. State vs. Allen. R. M. Charl 618 8. Where one of three defendants, jointly indicted, elects to be tried separately, under the provisions of the Penal Code, the trial, as to him, is to be considered in the same manner as if he had been sepa- rately indicted for the ofience. Jones vs. Tlie State. 1 Kelly 616-18 9. When defendants, jointly indicted, elect to be tried separately, it is the privilege of the prosecuting officer, who asserts the affirmation as to their guilt, to detei-mine which of them he will fii-st put on trial. Ibid 10. Under the 19th section of the 14th division of the Penal Code, no entij of nolle prosequi, shall be made after a case has been submitted to the Jury, except by the consent of the defendant. A case is submit- ted when the prisoner has been arraigned, the plea of not guilty filed and the Jury impanneled and sworn. Newsom vs. The State. 2 Kelly. 60 11. Before a Jury is impanneled in a criminal case, a nolle prosequi may be entered at the pleasure of the prosecuting officer ; but when once the accused is put on his trial, and a Jury sworn for that purpose, it is the right of the defendant to have them pass upon his case ; and if, CRIMINAL LAW— III. Pbaotice. 179 after thus submitted, a nolle prosequi shall be entered on the bill of indictment, ■without the consent of the prisoner, it amounts to an ac- quittal. Reynolds vs. The State. 3 Kelly 66 12. As a matter of practice, the libel should not be read to the Jmy, until the defendant has cross-examined the witness proving its pub- lication. Taylor vs. The State. 4 Go, 14 13. The owner or manager of a slave, charged with a capital offence, when acting as the counsel of his slave on the tiial, can lawfully waive the number of Jurors required by the Statute to be impannel- ed for the trial of such slave, and consent to take the first twelve on the Jui-y list. Alfred vs. The State. 6 Ga 483 14. On the trial of a slave, charged with a capital ofiFence, and a ver- dict of guilty, the Court will not interfere to grant a new trial on the ground that the evidence was not sufficient to authorize a verdict, where there is some evidence for the consideration of the Jury, and no error in law apparent on the face of the record. Ibid. 15. Under the 18th section, 14th division of the Penal Code, a defend- ant is entitled to make his demand for trial at the first, second or any subsequent term of the Court. Denny vs. The State. 6 Ga 491 16. Where, upon demand made, the Court passes an order that the de- fendant be tried at the nexttei'm, or discharged, the legal inference is, that the Court did its duty, and^hat there was at that time a Ju- ry impanneled and qualified to try the cause. Ibid. 11. Where, under a demand, a defendant is finally discharged, the bet- ter practice is, that the order of discharge recite, that at that term there was a Jury impanneled and qualified to try the cause. Ibid 18. Wheredefendants, indicted jointly, sever on their trial, it is the priv- ilege of the State's counsel to elect which shall be tried first ; and where issue is joined upon a plea of Autrefois Acquit, by one defend- ant, before he announces himself ready for trial on the merits, and that issue is disposed of, this does not amount to an election by the State, and the other defendant may be placed first on his trial. Studstill vs. The State. 1 Ga 2 19. The absence of a witness, the object of whose testimony is to im- peach another witness, expected to be introduced by the State, is good ground for a continuance ; but if the witness, on the part of the State is not introduced, the Court will not grant a new trial, notwithstand- ing the motion for a continuance was refused. Ibid. 20. Where a defendant, who is indicted for murder, made a motion to 180 CRIMINAL LAW— III. Pkactice continue his cause, on the gi-ound of the absence of two material wit- nesses, who had been subpoenaed, it is no error for the Court to post- pone the trial, and compel the attendance of the witnesses, by the process of the Court. Reese vs. The State, 1 Ga 373 21. Where a defendant, indicted for murder, moves the Court to continue his cause, on the ground that there was great excitement and preju- dice against him, in the public mind, so that he could not have a fair trial, and, to support his own affidavit, introduced two witnesses, who contradicted defendant's statements as to such public excitement : Seld, (hat it was no error in the Court to refuse a continuance. Ibid. 22. Upon the trial of a slave, for a capital offence, when the evidence on the prosecution has closed, and the cause submitted to the Jury, on both aides, further evidence cannot be admitted, on behalf of the prose- cution, against the defendant. Judge, a slave, vs. The State. 8Ga.., IIS 23. There is no restraint on the power of the State Attorney, to enter a " moHe jorosejai," on any bill of indictment, with the concun-ence of the Court, provided the case hasnot been submitted to the Jury. Dur- ham vs. Tlie State. 9 Oa 306 24. The 18th section of the 14th division of the Penal Code, allowing any person, against whom a true bill of indictment is found, for an offence not affecting life, to place on the minutes of the Court a demand for trial, and entitling the accused to be absolutely discharged and ac- quitted of the offence, if such person is not tried at the term at which the demand is made, or at the next succeeding term thereafter, is im- perative in its language, and admits of no exception ; trial or acquittal, are the only alternatives. Ibid. » 26. Where the offence has been recently committed, and the party ac- cused imprisoned during the whole time which intervened between his arrest and trial, it is good cause of continuance, in a capital case, at the first term after the bill is found, that the defendant cannot come safely to trial, on account of the excitemeatin the public mind against him ; and the affidavit of the prisoner, when made and filed in terms of the law, cannot be contradicted or traversed, either by a cross-ex- amination or aliunde proof Bishop vs. The State. 9 Ga 121 26. A defendant in a criminal cause, at the 2d term, moves to continue, on the ground that a material witness was absent, who had been sub- pcenaed and recognized to appear, and his expenses tendered to him, and that he expected to prove by him, that one of the witnesses ex- pected to be introduced, and relied on by the State, said "that if hard swearing would send defendant to the penitentiary, he should go :" jHeZd, that the showing was sufficient. Fox vs. The State. ^JGa.... SIS CRIMINAL LAW— IV. Particular Offences. 181 2Y. It is not competent for the Court to refuse a continuance, after a le- gal showing has been made, upon the ground of the Court's private knowledge of the good character of the witness, sought to be im- peached by the testimony of the absent witness, and the Court's want of confidence in the integrity of the party moving the continuance. Ibid. 26. It is the duty of the Court to keep the Jury together, in a criminal case, from the time it is submitted to them, until they are finally dis- charged from its consideration. Berry vs. J' he State. 10 (?a 511 29. Should the counsel, on both sides, unite in petitioning the Court to permit the Jury to disperse, there would, perhaps, be no impropriety in granting the application, at any rate, in the trial of petty offences ; still, it is a discretion which should be very cautiously exercised, un- der any circumstances. Ihid, IV. PARTICULAR OFFENCES. 1. The Act 9th George I. commonly called the '' Black Act," is not in force, in Georgia. Tlie State vs. OampbeU. T. XT. P. Chart 166 2. On indictment for swindling, the proof was, the defendant had, by false representations, induced the prosecutor to purchase and pay for a tract of land, which defendant had already sold and conveyed to another ; on motion, to enter nol. pros, for defect of proof, prosecutor not having tested his title by action of ejectment, the Court overruled the motion. State vs. Doosier. Dudley 155 3. And indictment for burglary, will not authorize a verdict of "larce- ny, by privately stealing in the house." The offences, under the Penal Code of Georgia, are distinct, in all their properties. Burglary must be committed in a dwelling-house, and "larceny from the house," in a house " other than the dwelling-house." State vs. Moloney. R. M. Gharl • S4 4. The 49th section of the 6th division of the Penal Code of Georgia, pre- scribes the punishment to be inflicted on a person who shall falsely and fraudulently make, sign or print, &c. any counterfeit note or bill of a bank, .S,000 of the $5,000 placed therefor the payment of his debts, that the cestui que trust was entitled to an account from the trustee therefor, and to have the same invested for his benefit. Napier vs. Napier. 6 Ga. 404 16. Trusts intended by the Courts of Equity not to be reached by the Statutes of Limitation, are those technical, continuing trusts, which are not at all cognizable at Law, but fall within the proper, peculiar and exclusive jurisdiction of Courts of Chancery. Thomas vs. Brins- field. 1 Ga 154 17. Courts of Equity have jurisdiction to compel trustees to account for the trust funds in their hands, especially where the accoimts arecom- plicated, and from the facts alleged in the bill it appears, aflSrmative- ly, a discovery from the defendant is necessary to obtain a decree, Keaton vs. Greenwood. S Ga 97 18. The right of a creditor to force a stockholder to pay his unpaid sub- scription for stock, in an insolvent bank, is a case of purely technical and direct trust, to which the Statute of Limitations does not apply. Hightower vs. Thornton. 8 Ga 486 19. If a party is to be constituted a trustee, by the decree of a Court of Equity, on the ground of fraud, his possession is adverse from the time the circumstances of the fraud were discovered. Harrison vs. Adcock etal. o Ga 6 S 20. The Statute of Limitations does not begin to run against express EQUITT — I. JuEisDicTioN — (A) Dehtcr and Creditor, &c. 241 trusts created by the act of the parties or the appointment of la-w, so long as the trust continues, and is acknowledged to be a continuing, subsisting trust, for the reason that the possession of the trustee is the possession of the cestui que trnst ; but when the trust is denied by the trustee, and he claims to hold the trust funds or trust property as his own, adversely to his cestei qiie trust, the latter having knowledge of that fact, the Statute will begin to run in favor of such express trus- tee from the time of such adverse claim or possession. Keaton vs. Greenwood. 8 Ga 97 21. The Statute of Limitations will begin to riiain cases oiimpUed trusts, created by decree of a Court of Equity, in favor of the trustee, from the time of his possession, as it would do in a Court of Law, for the reason, that his possession never was the possession of the alleged ces- tui que trust. The relation oitrustee and cestui que trust never, in fact exists, until the decree of the Court establishing that relation. Ibid. 22. Although the Statute of Limitations applies to constructive trusts, yet, it is not available where the legal remedy has not been barred. The Statute does not begin to run in favor of a trust estate against a debt contracted by an agent thereof, until a return of nulla bona against the agent, or his insolvency be legally ascertained. The practice of exhausting the legal remedy against such agent before proceeding in Equity against the trust estate, is in furtherance of justice. Wylly et al. vs. Collins & Co. 9 Ga 223 28, A Judge at Chambers has no power, upon petition, ''to order a sale of trust property. Arrington vs. Cherry. 10 Ga 429 24. In order to raise a trust, by the promise or agreement of a party, which a Court of Equity will execute, it must be founded on some mer- itorious or some valuable consideration. Yarborough et al. vs. West. 10 Ga ill 25. If a trust fund is in danger of being wasted or misapplied, a Court of Equity will interfere at the instance of any one interested, and by the appointment of a Eeceiver, or in some other way, grant relief. Jones vs. Dougherty. 10 Ga 273 26 . If the trustee omits to act when required by duty to do so, or is ■wanting in necessary care and diligence in the due execution of the trust, a Court of Equity will interfere. Ibid. (h) DEBTOR AND CEEDITOR : AND HEREIN OF " CREDITOR'S BlLIiS," AND " MARSHALLING OF ASSETS." 1 A. creditor at large, or one whose debt has not been carried to judg- -31 242 EQUITY— I. JtiEisDicTioN— (A) Debtor and Creditor, ] 25. To allow the road tobe cut up into fragments, and separate por- tions sold at differenfsales, in the different Counties through which it passes, to different purchasers, would not only sacrifice the rights and interests of creditors, but defeat the objects and intentions of the Legislature in gi-anting the charter. Ibid. 26. Any creditor who has a claim upon the fund, but who is not a nomi- nal party to the suit, may make himself a party thereto in fact, by coming in and presenting his claim under the decree, and submitting himself to the jurisdiction of the Court, for its settlement and adjust- ment, upon the fund to be distributed. Ibid, EQUITY— I. JcKisDioTioN— (i) Other Oases. J61 27. If he neglects or refuses to come in and entitle himself to the benefit of the decree, Equity will not assist him to set aside and annul the proceedings under it. Ibid. 28. A party who goes into Equity to seek relief against an usurious con- tract, who has paid principal and legal interest of the debt, must aver that fact in his bill ; and if any remains unpaid, that he is ready and •willing, and now offers to pay the balance. Peacock vs. Terry. 9 Ga ISi? 29. Demurrer sustained for want of equity, where it appeared by com- plainant's bill that they held the senior grants to the land in dispute, and that the junior grants, issued by the State of Georgia to defend- ants, were examinable collaterally at Law, the State having no title to lands thus granted, and such grants having issued contrary to the prohibition of a Statute. Commissioners of BrunswicJc vs. Dart. R. M. Gharl 497 30. Equity will not relieve an .administrator after t^o ]-aAgm^nta de bo- nis testatoris audi de bonis propriis have been successively recovered against him. Bostwick vs. Perlcins, Hopkins & White \ Kelly . ..HI- 4^0 81. A purchaser of land who is in possession, cannot have relief in Equi- ty against the payment of the purchase money, upon the mere ground of a defect of title before eviction. McQ-ehee et al. vs. Jones. 10 Oa. 127 32. If he is in possession under a deed, with covenants of warranty, he must resort to his covenants ; if under a bond for titles, he must re- sort to his bond. Ibid. 33. If however, the obligor is insolvent or without the jurisdiction of the Court, and there is no property within the jurisdiction, which would be liable to the satisfaction of his damages, and there is an outstanding title paramount to his, the purchaser will be entitled to relief against the payment of the purchase money, to the extent of his damages before eviction. Ibid. 34. The insolvency or non-residence must be distinctly alleged, and the defect of title, with every other fact necessary to enable the Court to decree on the title and assess the damages. Ibid. 35. It is only necessary for remainder-men and reversioners to state their case in the terms of the Act of 1830, in order to entitle them to the remedy therein provided ; they need not specify in their bill the threatened wrong or probable ground of possible injury, to enable them to obtain the assistance of the Court to avert the peril. Jackson Oa 118 48. To authorize a Court of Equity to interfere in cases of trespass, there must be something particular- or special in the case, for which a Com-t of Law cannot afford adequate redress. Ibid. 44. An allegation that the tenant will be homeless, for want of means to procure another habitation, will not authorize a Court of Equity to EQUITY — II. Injunction: Gkantinq and Dissolution. 267 restrain the officer, by injunction, from placing the purchaser at Sher- iff's sale in possession of the premises. Ibid. 45. The Court will dissolve an injunction, on ^the coming in of the an- swer of the defendant, who alone is interested, negativing all the facts and circumstances charged in the bill, and upon which its equity is based, though all the defendants have not answered. Dennis vs. Green, Adm'r. S Cfa 197 46. So, if the deceased was a necessary party to the final decree to be rendered, but not interested in the injunction, a motion to dissolve the injunction need not be postponed until the representatives are made parties. Dennis vs. Green, Adm'r. & Ga. 197 47. A denial in the answer, from information and belief, is not sufficient to dissolve an injunction. Coffee et al. vs. Newsmn, Ea^r. 8 Ga.... 444 48. Where the equitable facts are not charged to be within the knowl- edge of the defendant, and he merely denies all knowledge and be- lief of them, the injunction will not be dissolved on the bill and an- swer alone. Ibid. 49. If the equity of the bill is not denied, either from ignorance or oth- er cause, the injunction will not be dissolved. Ibid. 50. The answer of an executor, that he was not privy to the fraud charged against his testator, and that he did not believe the facta alleged in the bill against him, from his confidence in his integrity, is not suf- ficient to dissolve the injunction to restrain proceedings at Law, in favor of the estate. Ibid. 61. In particular cases, the Court will retain the injunction, though the answer fully denies the equity of the bill. Ibid. 62. A files his bill, charging that he is the owner of four shares in an estate represented by B ; that he purchased property from a former repre- sentative of the estate, and gave his notes therefor, with an under- standing that they should be paid, by allowing him the said shares ; that judgment had been obtained on the notes, and praying an injunc- tion of the judgment, and the execution of the agreement: Held, upon the answer distinctly denying that the estate owed the complainant anything, and stating that the fonr shares claimed in the bill had been paid to him, the injunction was properly dissolved. Fordvs. Tyson, Adm'r. 8 Ga 466 53. An injunction will be dissolved upon the coming in of the answer, fully denying.the equity of the bill. Jones vs. Joiner etal. 8 Ga 562 54. On motion to dissolve an injunction upon coming in of answer, excep- 33 258 EQUITY — II. Injdnction: Geantinq and Dissolution. tions filed are no objection to the motion, unless they affect the answer in the parts relating to the grounds of the injunction. Lewis vs. Leak et al. 9 Ga 95 55. Where the ausw^er of the defendant is not responsive to the bill, but sets up affirmative allegations, in opposition to, or in avoidance of the complamaut's demands, the answer is of no avail in respect to such allegations, on a motion to dissolve an injunction, and if replied to, the defendant, on the trial, is as much bound to establish such al- legations by independent proof, as the complainant is to sustain his biU. Ibid. 56. Although it is a general rule in Chancery practice, that on the com- ing in of the answer, plainly and distinctly denying all the facts and circumstances upon which the equity of the bill is based, that the Court will dissolve the injunction ; yet in some particular cases, the Court will continue the injunction. The granting and continuing of the process must always rest in sound discretion, to be governed by the nature of the case. Jlolt et al. vs. Tlie Bank of Augusta. 9 Ga. 652 57. Held, that under the charter of the Griffin and West Point Plank- road Company, and under the General Law, the Inferior Court of Pike County may rightfully instiiute suit in Equity, to restrain them from violations of their charter. The Justices, &e. vs. The Griffin, 12. In general, if a fact is charged in a bill, which is within the defend- ant's knowledge, as if it is done by himself, he must answer positively, and not according to his remembrance or belief. The rule is not inva- riable. Carey, Assignee, vs. Jones. 8 Ga 516 13. An exception is where the fact charged has not occurred within six years. Ihid. 14. A defendant in his answer cannot charge himself with the receipt 264 EQUITY— I. PiEADiNG— ((f) Bills of Review, So. of goods, or the proceeds thereof, and also discharge himself, by al- leging that he has "accounted therefor. Dennis et al. vs. Ray, Re- ceiver. 9 Ga 449 15. If the lapse of the period of limitations appear with certainty, on the face of the bill, and there is nothing stated to avoid it, the objec- tion may be taken by demm-rer. Caldwell vs. Mcmtgmnery and Wife. 8 ffa 106 16. As to effect of judgment on demurrei-, to a bill of review. Carey, Assignee vs. Giles, Receiver. 10 Ga 9 17. In a bill filed by legatees against an executor, for an account of usu- rious interest, made upon the funds of the estate, he must answer as to the amount of money loaned ; at what rate ; when and with whom usu- rious contracts were made ; how often renewed, and what profit he re- alized ; appending an account of the whole to hia answer, according to the best of his knowledge, information, remembrance and belief. Beall, Ex'r, vs. Blake et al. 10 Ga 449 18. When a defendant has in his power the means of acquiring the in- formation necessary to enable him to make the discovery called for, he is bound to mate use of such means, whatever pains or trouble it may cost him. Ibid. 19. When a plea to a bill in Chancery is adjudged a good defence in part, and ordered to stand for an answer, it is a sufficient answer to so much of the bill as it covers, unless by the order, liberty is given to the com- plainant to except. Ibid. 20. When a defendant consents to answer, or having pleaded is ordered to answer, he must answer fully. Ibid. 21. As to demurrer after amendment filed, see -BooiJA et al.vs. Stamper. 10 Ga ". 109 22. Upon demurrer, the Court will not inquire into the regularity or competency of an amendment to the bill, previously allowed by the Court. McGehee et al. vs. Jones. 10 Ga 127 (d) BILLS OF REVIEW: OF PEACE: OF INTERPLEADER. 1. In a bill of interpleader, where there are two parties claiming of the complainant, the same demand, it is no objection that one has been carried to judgment. Griggs vs. Thompson etal. Qa. Dec. part !•••• 146 2. The ground of equitable jurisdiction in such cases, is the doubtful ti- tles of the defendants. Ibid. EQUITY — III. Pleading— (e) Mxdtifarioumess. 2B5 3. Where a decree ia Equity has been before the Supreme Court, on- a writ of error, aud the judgment of the Court below affirmed, a bill of review will not lie to reverse such decree, for error apparent on the face thereof. Rice et al. vs. Carey, Assignee, i Oa 668 4. When a decree is rendered in favor of A against B and C, B in a bill filed to review that decree, is entitled to make C a party complain- ant, without his authority and against his wishes. In such case, how- ever, C is entitled to sever. Hargraves vs. Lewis. 6 Qa 207 5. Where a decree sought to be reviewed, appears on the record to have been entered upon a voluntary settlement of the parties, a bill of re- view will not lie, although the original decree be irregular. Hargraves vs. Lewis. 7 Ga 110 6. A bill of review will not be entertained where it would be unjust and unconscientious to disturb the first decree, or where the same re- sult would inevitably take place on a re-bearing. Ibid. I. What is the limitation to bills of review in this State ? Quere. Ibid. 8. Under our present system, will bills of review lie for errors appa- rent upon the record? Quere. Ibid. 9. In ordinary cases, the effect of a judgment overruling a demurrer to a bill of review in Georgia is, to throw open the decree reviewed to a new hearing. If, however, the error in law sought to be reviewed goes to the denial of the complainant's right to maintain the original bill, then the judgment on demurrer is conclusive against him, and may be pleaded in bar, unless reversed. Carey, A ssignee, et al. vs. Giles, Receiver. 10 Ga 9 10. Where a bill of peace was filed for the purpose of restraining a de- fendant from prosecuting his action of ejectment: Held, that the principle upon which a Court of Equity interferes aud grants relief in such cases, is to suppress useless litigation, to prevent multiplicity of suits, to restrain oppressive litigation and to prevent irreparable mischief. Bond, Murdoch et al. vs. Little. 10 Ga 395 II. A Court of Equity will' not interfere until the complainant's right has been sa^is/fflcionZy established at Law, nor in a doubtful case. Ibid. (e) MULTIFARIOUSNESS. 1. Multifariousness defined. Butler et al. vs. Durham. 2 Kelly 419 2. A bill filed by the maker and sureties to certain promiseory notes, which were given to an administrator for purchases at his sale, against S4 266 EQUITY — III. Ppeading — (e) Mvltifarkmmesa. one into -whose possession they wei-e delivered by the psiyee, who had absconded, to indemnify him, and also one of the complainants, who were joint sureties on the administrator's bond, for losses sustained by them in that character — to have said notes cancelled, upon avei'- ments that they were paid before they were transferred, and that the defendant had instituted three suits upon them at Law, the first of which was dismissed, the second also dismissed, after plea and proof of payment, and the third still pending ; and with the further averments that the defendant had been fully indemnified as surety on the bond, from other sources, with a demand that defend- ant answer the allegations, and a special prayer that said notes be delivered up to be cancelled, and a prayer for general relief, is a sin- gle bill, and not demurrable for multifariousness. Ibid 418 3. A bill filed for a general account and settlement of a partnership, may embrace evei'y object necessary to the final and complete^adjust- ment of the concern, without being demurrable for mnltifariousness, Wells and another vs. Strange. 5 Ga 22 4. A bill demm-rable for multifariousness, may be dismissed by the Court, of its own accord. Warthen vs. Brantley and Daniel 574 5. This objection is not favored by the Courts. Ibid. 6. A bill filed for the settlement of two firms, is not multi&Tious, where the defendant is the same, and the settlement of the one fii-m is indis- pensable to the 'Settlement of the other. Ibid. 1. One defendant cannot demur for multifariousness, on account of the joinder of anothei- defendant, who does not object. Ibid^ ■ 8. To sustain a bill against the charge of multifariousness, it is not indis- pensable that all the parties should have an interest in all the matters contained in the suit ; it is sufficient if each party has an interest in some matter in the suit, which is common to all, and they are con- nected with others. Worthy et al. m. Johnson ef al. % Ga 236 9. To protect a bill from the charge of multifariousness, it is not neces- sary that the interest of the parties be the same, as to all the matters embraced in the suit ; it will be sufficient if they have a common in- terest in one or more, which are connected with the rest. Booth and another vs. Stamper. 10 Ga 109 10. A bill for one year's support of a decedent's family, and praying an account of the co-partnership, against his executors and •& surviving partner, and charging a combination, is multifarious, and one of the causes of complaint will be stricken out. Silcox et al. vs. Nelson et al. Ga. Decisions, part 1 24 EQUITY— IV. Evidence. 26'7 IV. EVIDENCE. 1. The answei- of one defendant in Equity, is evidence against a co-de- fendant, who is his piivy in estate. Morns vs. Foote et al. Qa, Decis- ions, part II , , , 119 2. How far a defendant's answer is evidence for him, see Eastman et al. 1 Kelly, , 170 8. "What parts of the answer must be proved. Ibid. 4. A co-defendant to a bill in Equity, who is made so for mere form's sake, and against whom no decree is prayed, may be examined as a witness, on the trial of the cause, if necessary. Ragan et al. vs. Echols. 5 Ga -71 5. Parol evidence is inadmissible, to prove any contract different from the written agreement, nnleBS from fraud, accident or mistake, the instru- ment fails to speak the intention of the parties. Wynn, Shannon ^ Co. vs. Cox. 5 Oa SIS 6. Charges in a bill by a distributee against an administrator, that he had frequently called on him to account and pay up : Held, to be immate- I'ial, and when denied by the answer, need not be proven. FaU,Adm'r, vs. Bimmons et al. 6 Ga 265 1. "Where an answer is responsive to a bill, defined. Meld vs. Howell. 6 Ga 423 8. To authorize the admission of parol evidence in a case, a suffi- cient foundation must be laid therefor in complainant's bill, by making such averments as will constitute fraud, or from which a. Court of Equity will presume fraud. By "Wakkee, J. Mohson, Adm'r, vs. Har- well and Wife. 6 Ga 689 0. "Where no replication is filed to an answer in Equity, and the parties go to trial upon the bill and answer, the whole of the answer, whether responsive to the bill or not, is taken as true. Baldwin vs. Lee. 1 Ga. 186 10. "Where a grantor goes into Chancery to avoid his own deed, on the gi'ound of insanity, the burden is upon him to prove it, at the time the deed was executed, the law presuming sanity. But if habitual insan- ity is proven, previous to the execution of the deed, the presumption of law is, that it continues to the time when the deed was exe- cuted; and the burden of proving sanity, at the making of the deed, is devolved upon the other side. Sicken «s. Johnson. 7 Ga 484 2fi8 EQUITY— V. DEOREEa. 11. The admission ot ex parte afiidavits, is an exception to the general rule, and is allowable only in waste, or in cases where irreparable mischief might ensue. Lewis vs. Leah et al. 9 Ga 95 12. Where a bill alleged that there was a debt dueon a judgment by the co-partnership firm of E. W. <& J. D. in favor of C. B. and that s,fi. fa. had issued thereon, which had been paid off by T. C. & G. J. T. as in- dorsers; and upon the trial, a fi. fa. was offered in evidence, in favor of C. B. vs. E. W. D. as principal, and J. D., T. C. and G. J. T. as indor- sers : Held, that the evidence was properly rejected, on the ground of misdescription, there being no offer to amend so as to make the alle- gata and probata correspond. Dennis et al. vs. Say, Receiver. 9 Ga.. 449 13. The answer of one co-partner to a bill in Equity, filed against the co-partnership, which contains admi^sions againsl the interests of the company, although not filed as an answer in the cause, may be read in evidence as a wi'itten admission, on due proof of its execution. Ibid. 14. The answer of a defendant is evidence for him, only so far as it is responsive to the call of the bill for discovery, or necessarily connect- ed with the responsive matter or explanatory of it. Lee vs. Baldwin. 10 Ga 209 16. When requested to do so, it is not only the province, but the duty, of the Court, on the trial of Equity causes, to instruct the Jury what portions of the defendant's answer are responsive to the complainant's bill, so that the Jury may understand from the proper source, what is legal evidence for their consideration. Beall, Adm'x, vs. Beall and Beall. 10 Ga 342 V. DECREES. 1. Relief may be granted under the general prayer of a bill, where it is consistent with the case made by the bill, and not inconsistent with the specific relief prayed. Marine and Fire Ins. Bank vs. Early et al. K M. Charl 279 2. A decree in favor of a party, dying pendente lite, is void, and may be set aside by subsequent original bill. Keith vs. Willingham. Geor- gia Decisions, part II. 161 S. So of a decree in favor of a person who never existed, or has been beyond seas seven years. Ibid. 4. But as to other parties, such decree is conclusive, and cannot be re- versed by new original bill. Ibid. EQUITY— V. Deceees. 259 5. Where a decree in Equity, against a guardian, is silent as to the time when he committed the devastavit, and wliere the surety was discharged by the Ordinary, before the suit was 'commenced in which the decree was rendered, the decree itself is insufficient to charge him upon the bond. Bryant, Chtardian, et al. vs. Owens and Wife. 1 Kelly 372 6. "When the plaintiff, in the first instance, is entitled to a discovery, the Court will not only give him the discovery, but will, (on a proper prayer for that purpose,) decree the appropriate relief McLaren vs. Steappe. 1 Kelly Sit 7. The "eventual condemnation money," secured by an injunction bond, is the amount ultimately fixed and settled by the judgment or decree of the Court. Lockwoodvs. Saffold. 1 Kelly 73-'4 8. Where there is a special prayer and a general prayer, the complain- ant under the general prayer, may have such other relief only, as is consistent with the case made in the bill and with the special prayer. Btctler et al vs. Durham. 2 Kelly 420 9. A decree in Equity, in this State, need not recite the pleadings and proofs in the cause, as in England. Saunders vs. Smith, Adm'r. 3 Kelly 126 10. A decree in an Equity cause, for a specific sum of money, under the ] 3th Rule of Equity Practice, established by the Judges in convention, under the authority of the Act of 1821, may be enforced by a capias ad satisfaciendum, against the defendant. Jbid 12'7' 11. Final decree in Equity void, unless through the intervention of a Jury. Hargraves et al. vs. Lewis. 3 Kelly 165 12. In a bill filed to «njoin the collection of a judgment against the sm-ety on a usurious contract, by the principal, an order passed at Chambers, before the return term of the bill, directing the principal^and legal interest tendered in the bill, to be accepted by the plaintiff, in full satisfaction of the judgment, is in the nature of a final decree, and void, because the Judge of the Superior Court, as Chancellor, has no right to pass such an order; nor can he decree, finally, in any cause, without the intervention of a Jury. Ibid. 13. In a bill in Equity, every material fact to which the plaintiff means to offer evidence, must be distinctly stated. No facta are properly in issue, unless charged in the bill ; nor can relief be granted for matters not charged, although they may be apparent from other parts of the pleading and evidence ; for the Court pronounces its decree, secundum allegata et probata. Robson, Adm'r. &c. vs. Harwell and Wife. 6 G-'a. . 539 270 EQUITY — VI. Peaotioe: and herein of Amendments. 14. Where a decree was obtained in favor of legatees, against the exec- utors of the testator's will, for their legacies under it, and the execu- tors have admitted assets in their h&uds sufficient to pay them : Held, that property which had been distributed to another legatee, under the will, with the assent of the executors, could not be first seized and sold, in satisfaction of such decree against the executors alone, when it did not appear that there was any deficiency of assets, to pay all the legacies, and the legatee, whose property was taken, was no party to the decree; notwithstanding, it was declared by the decree, that it should be a lien upon, and bind the whole estate of the testator. The estate of the testator, in the hands of the executors, is first liable for the satisfaction of the decree, before such portion of it as had been distributed to legatees who were not parties to the decree, and who had been in the possession of it for several years, with the assent of the executors. Scranton et al. vs. Demere et al. 6 Ga 92 15. "Where, by a decree of a Court of Equity, a specific sum of money was decreed to be due to the maker of an unuegotiable promissory note, by the payee thereof: Held, that such decree could not be impeached by extrinsic evidence, so as to impair or defeat the equitable right of such maker, to set-off such decree for the full amount thereof, against such note in the hands of an assignee, for a valuable consideration, but who had never given any notice to the maker of the note, of such as- signment. Guerry vs. Ferryman. 6 Ga 119 16. When a cause in Chancery is submitted, on the bill and answer alone, to the Jury, and the answer plainly, fully and positively denies all the facts and circumstances charged in the bill upon which the complainants' equity is founded, no decree can be rendered in favor of the complainants. The BucTcersmlle Bank et al. vs. James Hemphill et al. 1 Ga 396 17. The decrees or judgments of a Court of Equity, ai-e embraced with- in the Dormant Judgment Act of 1823. Curry vs. Piles. 8 Oa 32 18. It IS no objection to a decree thatit is entered by consent. Hardwidc vs. Hook, Receiver. 8 Ga 345 19. As to effect of judgment on demurrer, to a bill of review, see Oarey, Assignee, vs. Giles, Receiver. ] Oa 9 VI. PRACTICE: AND HEREIN OF AMENDMENTS. 1. Where the title is in dispute, afid facts are necessary to be ascer- tained, to determine such dispute, it will be referred to a Master in Chancery, to examine and report thereon. Bolton vs. Plournoy. R. M. Charl 126 EQUITY — VI. Pkaotioe: and herein of Amendments. 2*71 2. Although the practice in Georgia is, to associate a Special Jury with the Judge of th« Superior Court, in the determination of Chancery causes, there is no law which imposes the necessity of such associa- tion. McGowan vs. Jones et aL K. M. Oharl 184 3. The death of one defendant to a suit in Equity, only abates the pro- ceedings yaoaa! him. Howard va. Bank of Darien. B. M. Chart 216 4. In this State the right of appeal from a Special Jury, to a hearing be- fore another Special Jury, exists in Equity cases. Pool vs. Barnett. DvMey : 8 5. Costs do not always, in Chanceiy, follow the event of the cause ; they rest in the sound discretion of the Com't. Pearce & Co. i)s. Chastain. 3 Kelly 230 6. Under the Act of 1838, authorizing the service of writs, rules and or-- ders in Equity, by publication, it is necessai'y that four months shall elapse between the first and last publication, and that the publications shall also be made once in each of the four months next preceding the term at which tdefendant is called upon to plead and answer. Smith, Adm'r, et al. vs. Thompson. 3 Kelly ^ .- 25 5. If a cause is not reached in its order, on the docket, by the exercise of reasonable diligence on the part of the Court, the effect is a contin- uance by the Oourt. Ihid. 8. According to the rule of Equity Practice in this State, the decree need not recite the pleadings and proofs in the cause, as in England. Saunders vs. Smith, Adm'r. 3 Kelly 126 9. The affidavit of one of the complainants, verifying injunction bill, suf- ficient. BemphUl et al. vs. Jiuolcersvilie Bank. 3 Kelly 44S 10. After a demurrer to the whole bill is sustained, there is nothing to amend by ; but if any part of the bill is untouched, the whole may be amended. Dvdley vs. Mallery. i G-a 52 11. The amendments to a bill, generally refer to the time of suing out the original. They become part of it, and with it, constitute but one record. Carey, Assignee, vs. Hillhouse. 5 Ga 281 12. Acopy of the bill and subpoena, may be served by a private individ- ual, as well :as the Sheriff. Ibid. 13. Where a defendant, described as such, in the bill, and against whom a subpiEna is prayed, is served with a copy, and with it, with a mb poena, TfifeiTing to the bill in its descriptive parts, and naming other 2*72 EQUITY - VI. Practice : and hekein of Amendmknts. defendants, but not containing his name : Held, that such service is sufficient to require such defendant to appear and answer. Ihid. 14. Amendments to sworn answers will be allowed, in cases of mistake, fraud, surprise, and the discovery of new matter, but with great cau- tion and difficulty. There is, however, no general rule, and the appli- cation is made to the discretion of the Court, and each case must de- pend very much upon its own merits. Martin vs. Atkinson. &Ga... 390 1 5. Amendments will be allowed, after replication filed. Ibid, 16. Where it is made to appear to the Court, upon oath, that the defend- ant intended to swear, when he first put in his answer, as he desires by the amendment to be permitted to swear, it will be allowed. Ibid. 17. On the trial of an Equity cause in the Superior Courts of this State, counsel for the complainant is entitled to open and conclude the argu- ment to the Jury, where both parties have introduced evidence. Guer- ry vs. Ferryman and Dennard. & &a 119 18. "Where a cause is submitted to the Jui-y, on bill and answer and re- plication, and the defendant introduces no evidence, the defendant is entitled to the conclusion in the argument. Fall, Adm'r, vs. Simmons et al. (! Ga 265 19. A complainant may amend the title of his bill, so as to make it con- form to the true character of the case made by it. The prayer of the bill may also be amended, s ) as to enable the complainant to have such relief as the allegations in his bill will authorize. Dearing vs. The Bank of Charleston. & Ga 681 20. Where a bill in Equity is amended by the complainants at the first term, and served within two months thereafter, defendant cannot ex- cuse himself from complying with the usual rule, on the ground of the amendment, more especially as to the original bill. Whether or not a sufficient time has elapsed from the service of the amendment, to require an answer to that, at the succeeding term, is a question for the sound discretion of the Court, where the order allowing the amend- ment does not specify the time within which it shall be answered. Garter and another, ExWs, vs. MeDmtgald et al. 6 Ga 93 21. Where formal parties to a bill, residing without the jurisdiction of the Court, against whom no decree is prayed, have not been served personally or by publication, the cause may still proceed against the real parties who are served. Ibid. 22. A defendant in Equity is not required to answer at the term to which the bill is returned. The words, "next Oawrt" in the Act of EQUITY — VI. Pkaotice : and herein of Amendments. 273 I'jgg, construed to mean the next Court after that to which the bill is returned. *Ore€n vs. McLaren. 6 Ga 10'7 23. An application by a defendant to file a supplemental answer in Chancery, will be narrowly and closely inspected; and to authorize the Court to allow it, a just and necessary case must be clearly made out. Carey, Assignee, vs. Ector, Adm'x, et al. 6 Ga 99 24. The application to the Court, for leave to file a supplemental answer, on the ground of a mistake in fact, or surprise, must be accompanied with an aflBdavit, in which the defendant must swear, that when he put in his original answer, he did not know the facts or circumstances on which he applies, or any other circumstances upon which he ought to have stated the iacts otherwise ; or that when he swore to his origi- nal answer, he meant to swear in the sense in which he now desires to be at liberty to swear to it. JMd. 25. "Where a bill was filed by several creditors, for the payment of sepa- rate and distinct demands against the stockholders of an incorporated company, and one of the complainants died pending the suit: Seld, that the suit did not abate as to the other complainants, but that the name of the deceased complainant might be stricken out of the bill, and the other complainants proceed to obtain a decree for their sepa- rate debts. Berry et al. vs. Matthews et al. 7 Ga 457 26. Where exceptions have been filed to defendant's answer, by the com- plainant, and he afterwards files his replication, and the cause is set down for a hearing, the Court will not hear the exceptions at the trial, but will consider them as having been waived 'by the complainant. Ibid. 27. The 4th Common Law Rule of Practice, which authorizes a contin- uance on appeal trials, for the purpose of making a substantial amend- ment to either declaration or answer, does not apply to Equity causes. Ibid. 28. The 6th section of the Judiciary Act of 1799, and the 57th Common Law Rule of Practice, requiring the production of books and papers at the trial, upon ten day's notice, do not apply to Equity causes. Ibid. 29. Where the answer of the defendant is made and sworn to before his death, it may be used on a motion to dissolve the injunction, though filed in Court subsequently. Dennis vs. Green, AdirCr. 8 Ga 197 30. A bill may proceed, without making the representatives of a mere formal party, parties to the proceeding. Ibid. 31. On application for a writ of me exeat, by a wife against her hus- 36 274 EQTJITT — VI. Pkaotice : and herein of Amendments. baud, pending a suit for a partial divorce and alimony, her ^dayit is sufficient; she being, in thia respect, considered independent of her husband. McO-ee vs. McQ-ee. 8 Qa 29S 32. If the threats of the husband to leave the State, come to the knowl- edge of the wife, through the information of others, their affidavits should, if practicable, be filed with her's. If, however, she swears, absolutely, that he has threatened to remove, that is sufficient. Ibid. 33. The pleadings in Equity causes, pending on the appeal, are not amendable as a matter of course, but only by leave of the Court, on spe- cial cause shown. The Ga. B. R. & B'k'g Go. vs. Milnor & Co. 8 Oa. 313 Also, Boyd, Adm'r, vs. Olements. 8 Ga 622 34. Where, upon special cause shown, the Court below, in the exercise of its discretion, allows an amendment, this Court reluctantly interferes to control that discretion. Ibid. 35. A bill will never be dismissed for want of parties, when the proper parties can be made, either by amendment or supplemental bill. Sigh- tower vs. Mustian. 8 Ga. 50S. Sightower vs. Thornton. 8 Ga 486 36. If it is apparent that parties cannot be made, and there can be no decree without them, the bill will be dismissed. Ibid, SI. The 4th Common Law Rule of Practice does not apply to Com-ts of Equity. Boyd, Adm'r, vs. Olements, Guardian. 8 Ga 522 38. "Where a cause in Equity is pending, and the pleadings made up and issue joined, the complainant is not entitled to amend, as a matter of right, but amendments will be allowed, upon special cause shown. Ibid 39. Surprise is good special cause for the allowance of an amendment. Ibid. 40. "Where the pleadings are made up and the cause on trial, the evi- dence closed and the argument progressing, it is not competent to amend the bill but for special cause, and not then, if the amendment introduces a new cause of action. Peacock vs. Terry. 9 Ga 137 41. Facts alleged positively in a bill, are constructive admissions in fa- vor of the defendant, and need not be proven. The complainant can- not deny them, if they be not true, but must recover according to the case he makes upon the record. Ibid. 42. Two witnesses, or one with corroborating circumstances, will be re- quired to outweigh an answer responsive to a bill, more especially if EQUITY — VI. Pkactice: and herein of Amendments. 276 there be three defendants, all concurring in the same statement. Gait vs. Jackson. 9 Ga 151 43. As a matter of practice, the Supreme Court ■will not control the dis- cretion of the Court below, in refusing to suspend a cause then on trial, for the purpose of taking up another cause, to permit a defendant's answer thereto to be filed, so as to make it evidence, as an answer in the cause then on trial; especially, when the party who had answered was dead, and there were objections raised to its being filed. Den- nis vs. May, Receiver. 9 Ga 449 44. After the pleadings are made up and the cause set down for a hear- ing, the answer cannot be amended upon the ground that the defend- ant was ignorant of the availability in law of a fact within his knowl- edge, from the time the siut was instituted, as a defence thereto. Branch, Adm'r. vs. Dawson. 9 Ga 692 45. In a bill filed by the receiver of the Bank of Macon, to set aside an assignment of certain notes to the Bank of Columbus : Held, that per- sons liable upon those notes, and who had been sued thereon by the assignee, and who were made parties defendants to the bill, have an interest in the question of title to their notes; and upon the trial may introduce evidence and be heard as to that question, but that no de- cree can be rendered for or against them. Carey, vs. Giles, Receiver. 10 Ga 9 46. When an amendment is made to a bill before answer filed, even if it be immaterial and trivial, a defendant may demur de novo, to the whole bill. Qwere, as to the reasonableness of this rule. Booth aitd another vs. Stamper. 10 Ga 109 47. When an amendment is made at any time to a bill, the defendant may demur to the amendment. Ibid. 48. When an amendment is made to a bill after demui'rer made and de- cided and answer filed, the defendant cannot demur again to the whole bill, unless the amendment is material. Ibid. 49. An amendment is material, when it so varies the case made in the original bill as to change the complainant's equity. Ibid. 50. Upon demurrer, the Court will not inquire into the regularity or competency of an amendment to the bill, previously allowed by the Coui't. McGehee a7id another, Ea^rs, vs. Jones. 10 Ga 127 See Amendments, II. b. 2'76 EQUITY— Vir. Laches and Waiver. VII. LACHES AND WAIVER. 1. The practice of and rule Court, requiring that a bill of revivor should be filed, to make the legal representatives of a deceased complainant a party to the suit in Chancery, may be waived by agreement between such representative and defendant. Brog et al. vs. Bayley. R. M. Oharl 109 2. And a replication will be dispensed with, under similar circumstances. lUd. 3. The Water-lot Co. of the City of Columbus, conveyed by deed, to de- fendants, a piece of ground, upon condition that the bargainees should be restricted to the privilege of erecting and running a saw-mill, or saw-mills, on said premises: Held, that a Court of Equity will not re- strain, by injunction, the owners from using the building on said lot of land, for other purposes than those mentioned in the deed, after they have incurred considerable expense in the construction thereof, or compel them to stop the machinery already in operation, no suffi- cient excuse being rendered by the company, for their failure or neg- lect, in not applying at an earlier period. Water Lot Co. vs. Brooks & Winter. 5 Ga 315 4. A bill by distributees against the representatives of a deceased ad- ministrator, will not be entertainedafter alapse of nijietereyears from the rendering gf the accounts to the Court of Ordinary, where there is no allegation of fraud or mistake, and no excuse for the delay. Akin et al. vs. Hill et al. 7 6a 6T3 5. A Court of Equity will enjoin an administrator from recovering a tract of land, where the intestate has been dead 26 years, and the . heirs -n ere all of age at the time of the death, and for more than seven years next before the commencement of the action, and where there are no debts against the estate, and the defendant has been in adverse possession for more than twenty years before administration granted. Jonekin vs. Holland, Adm'r. *? Oa 689 6. A bill filed for the recovery of damages for the breach of a bond for ti- tles, is a demand founded on a sealed instrument, and such a claim is not barred until twenty years after the accrual of the right of action thereon. Caldwell vs. Montgomery and Wife. 8 Ga 106 *J. In Courts of Equity, fraud has been held to be an exception to the op- eration of the Statute, until the discovery of the fraud. Ihid. Sec Limitation of Actions. ERROR — I. Gerekallt : when it Lies, Ac. 277 ERROR. I. generally: when it lies, &c. II. OF THE WRIT : ASSIGNMENT, &c . I. GENERALLY : WHEN IT LIES, 324 il. The testimony oi relatives, as such, should not be discredited. Rela- tionship is a circumstance from which the Jury may infer a bias. Ibid. 12. A party in a, Court of Justice is not estopped to deny /acis recited in an Act of the Legislature. It is no law, and the Court is not bound to take judicial cognizance of it. The trial of the truth of facts be- longs to the Judicial part of the Government. Dougherty vs. Bethune, Assignee. 1 Ga 90 13. The testimony of a subscribing witness to a submission and award, is the best evidence of their execution. Tyler vs. Stephens and another, Adm'r. 1 Ga 2'7S 14. When a plea of former recovery is filed, and the record tendered to sup- port it, it is a question foi- the Court to determine, upon inspection and comparison, whether the cause of action is the same, and if not the same, the record will be repelled; and if it is admitted, it then also becomes a question for the Court, how far and when parol evi- dence will be admitted to show that the cause of action was not sub- mitted and passed upon in the former trial. Adm'rs of MeFarland vs. Adm'rs of Freeman. 7 Ga 211 1 5. If there be an attesting witness to an instrument, his evidence of its execution is the best, and must be produced, if in the power of the party. Walts vs. Killbiirn. 7 Ga 3B6 Ki. If the witness is dead, or blind, or insane, or has become interested since the execution of the paper; or is beyond the process of the EVIDENCE— I. GENaRAL Peinciples. 287 Court ; or is not to be found after diligeut search, the course is, to prove his hand-writing. Ibid. IT. Testimony offered avowedly to impeach the credit of a witness, by showing contradictory statements, cannot, in the argument before the Jury, be used for a wholly different purpose. Williams vs. Chapman. 1 Ga 467 18. A private Act of the Legislature, as to its facts and recitals, imports verity equally with the records of the Courts ; still, it iriay be at- tacked for fraud in its procurement. Beall, Adm'x, vs. Beall andBeall. S Ga 210 19. The admission of ex parte affidavits, is an exception to the rule, and is allowable only in cases oi waste, or in cases where irreparable mis- chief might ensue. Lewis vs. Leak and another. 9 Oa 95 20. The Jury are not bound to believe according to the number of wit- nesses, but may take into view their means of knowledge, (fee. &c. and may believe one against two or more. But if two testify one way as to a material point, and one to the contrary, and all are of equal credibil- ity, they are to believe the two rather than the one. Lowdell vs. Neal. 10 Ga 148 21. Where a private Act of the Legislature was passed, legitimating certain persons therein named, and authorizing them to inherit as lawful heirs of their reputed father — which Act was alleged to have been passed without his assent : Held, that on the trial of the ques- tion of alleged fraud in procuring the passage of the Act, without such assent, it was competent for the party alleging the fraud to prove that the Senator, who was in the Legislature from the same County in which the reputed father lived, was present in the Senate, heard the bill read three times, and never heard any evidence of the assent of the reputed father, to its passage at that time. Beall, Adm'x, vs. Beall and another 10 Ga 342 22. Held, also, that it was competent to prove by a witness, who read from a newspaper, in the hearing of the reputed father, the title of the Act, that he angrily replied, '■ that he wished some people would attend to their own business." Ibid. 23. Evidence is the means by which any fact which is put in issue, is established or disproved. Its relevancy and admissibility is for the Court ; its sufiicienoy and effect for the Jury. Hotchkiss vs. Newton. W Ga 567 24. It is competent for the Court to withdraw from the Jury, the con- sicleration of evidence which has been illegally admitted. Salter vs. Lessee of Williams. 10 Ga 18fi 283 EVIDENCE- II. Documentakt- II. DOCUMENTARY EVIDENCE— BOOKS, &c. 25. A merchant's and shopkeeper's books are evidence to prove the sale and delivery of goods, when itis shown that the books oflfered are of original entry, are in his handwriting ; that he keeps fair books ; has had dealings with the person charged, and that he kept no clerk, or if he kept a clerk he is dead. Martin vs. Adm'r. of Tyffe. Dudley. 17 26. Where merchant's books are introduced in evidence, they are open to remark from the Court, and to the strictest scrutiny by the Jury ; - and if there be the least suspicion of fraud, or unfair dealing, they will be disregarded. Ibid. 27. The whole of a document or writing offered as evidence, must be read if required, otherwise there can be no certainty as to the sense and meaning of the entire document. Bank of South Carolina vs. Brown. Dudley 64 28. An administrator's accounts, which have been allowed by the Court of Ordinary, are, prima facie evidence for him, when called on to ac- count, but never evidence of title in him, against a third person. Gum- ming vs. Fryer. Dudley 183 29. A garbled or imperfect record will not be received in evidence. Hale vs. Burton. Dwlley 105 30. An account book, to beevidence, ought to show the daily transactions of the party : otherwise it will be rejected. Williams vs. A bercrombie et al. Dudley 262 SI. A copy of a receipt is not admissible without proper notice to pro- duce the original, or proof of its loss or destruction. Ex parte Simp- son. H. M. Chart Ill 32. A receipt in full is not conclusive against the party who gave it, but may be explained. Oilmer et al. vs. Cameron. Oa. Dec.part !..■■ 142 33. The answer of one defendant in Equity, is evidence against his co- defendant who is his privy in estate. Morris vs. Foote. Ga. Dec. part II. 119 34. When a bond is lost, the acknowledgment of the obligor that he executed it, is sufficient without producing the subscribing witnesses. Maynor vs. Lewis. Ga. Dec. part II 205 85. A deed recorded, will be admitted in evidence without farther proof. Lessee of Truhcck vs. Peeples. I Kelly 5 EVIDENCE— II. Documentary. 289 36. Books of account about to be tendered in evidence, must be first proved to be the original books of entry, by the oath oi the party tendering them, and theu be submitted to the inspection of the Court, and if found free from all fraudulent appearances or circumstances, (such as material and gross alterations, false additions, (fee.) and to contain the first entries or cliarges by the party, made at or near the time of the transactions to be proved, they are competent. If the contrary is discernible from the books, or comes out on examination of the party, they ought to be rejected. The credibility of the books and the party, are to be weighed by the Jury. Taylor vs. Tucker. 1 Kelly 233 37. Separate sheets of paper, containing the original entries of an ac- count for lumber, though such sheets are attached to the declaration as a bill of particulars, are admissible in evidence, upon the footing of original books, and under the same rules and restrictions as are pre- scribed by the Courts in the case of merchant's books. Jbid. 88. When the plaintiff's only evidence is his original books, it becomes indispensable to prove, aliunde, by one or more persons having deal- ings with him, that he was in the habit of keeping correct accounts. Ibid. 3S, An execution issued upon a decree of a Court of Equity, against' a guardian, (in a bill filed against him as guardian, to charge him indi- vidually for waste, &c.) with a return of " nulla bona " thereon, is admis- sible in evidence, ina suit upon the guardian's bond against the surety. Bryant, Adm'r. Sc. vs. Owens and Wife. 1 Kelly 368 40. Such decree is only prima facie evidence against the surety, who may inquire, aborigine, into the justice of the decree. Ibid. 41. A deed which recites a former deed and its loss, is evidence of the first deed, and the gi'antor and his privies are estopped by the recital. Adm'r. McGlesky vs. Ledbetter. 1 Kelly BS"? 42. Ancient documents (over 30 years old) are admissible in evidence, without proof of execution. 1 bid. 43. A certified copy of the record of the action of the Inferior Court, in taking a Sheriff's bond made in vacation, is not evidence in a suit against the sureties ; because a'a to that, the action of the Inferior Court is ministerial, and not judicial. Slephetiset al. vs. Crawford, Gov. &c. 1 Kelly 578 44. The declaration and other original papers of file in the Clerk's of- fice, may be used in evidence in the same Court to which they belong. Peck vs. Land. 1 Kelly 15 37 290 EVIDENCE— II. Documentaet. 45. The Act of 1302, prohibitiug the .Judgi'3 of the Superior Courts from witliholdhig any grant, deed, or other document, from the Jury, unless barred by the Act of Limitations, does not repeal the law of evidence as to execution of such papers, nor prevent the Judge from pronouncing upon their legal character. The only effect which it has, is to prevent them from withholding from tbe Jnry, papers whose legal character is admitted or adjudged by the Court, and are legally pro ven. Hester, E.c r. vs. Yoimy. 2 Kelly 42 46. A testamentary paper cannot be read to the Jury in any case affect- ing the title to personalty, in a Court of Common Law, until it has passed the probate before the Ordinary. Ibid. 47. The newspaper itself, is the best evidence of aiiy article which has been published in its columns. Bond vs. The Central Bank. 2 Kelly. 107 48. The plaintiff is not required to produce evidence to explain any alteration in the instrument sued on, where it is declared upon as a^ to'ecZ, unless there is a plea of more est /arfum. Tedlie vs. Dill. 2 Kelly. 131 49. An exemplification of the record of a case, under the hand and seal of the Clerk, exhibiting, among other things, the assignment by the plaintiff of the _;?. /a. is admissible to prove the transfer. Ivapiervs. Neal. 3 Kelly 300 60. It is not necessary to give notice of the first -suit, in order to recov- er over against the party ultimately liable. With notice, the former judgment is conclusive ; without it, /jrima /asie evidence only, of li- ability. Ihid. 51. Tbe Act of 1838, making the certificates of Notaries Public, evidence of the facts therein stated, not only make evidence {prima facie) of non-payment, but also of notice, when so stated in the certificate. Walker et al. vs. Bank of Augusta. 3 Kelly 492 52. If the certificate states that the notice was deposited in the P. 0. addressed to the indorsers "at their respective places of abode:" Held, sufficient. Ibid. 53. In an action for contribution, the record of the entire proceedings, which is the basis of the suit, must be introduced, unless it appears from the testimony in the case, that the recovery was on contract. Haupt vs. Adm'r. of Cope. 4 Ga 543 64. The recitals in an administrator's deed, of the order, advertisement, i,Adin'r. ^ Kelly. 6i1 EVIDENCE — IV. Witnesses : Opinions, Examinations, &o. 299 26. If the interest be of a doubtful nature, it goes to his credit. Jbid. See also, Adams vs. Barrett. 3 Kelly 2S0 27. A ■witness is always presumed to be competent, and the burden of proof to show his incompetency, is on the objecting party. Adams vs. Barrett. 3 Kelly 280 28. Where the witness entered into a covenant to guaranty and pro- tect the title to certain land against mortgages, <1'C. ; .ffe/rf, that it was incumbent on the party objecting to the competency of the wit- ness to show affirmatively, that there was in existence at the time of the trial, some such lien or incumbrance, in order to exclude the wit- ness. Ibid. 29. In an action for deceit, by A against B, for representations concerning the credit of C: .SeW, that C was a competent witness. Young vs. Hall. 4 Oa 95 30. A witness, who testifies, generally, that a party did not receive val- ue for the transfer of a promissory note, without limitation, as to his knowledge, or as to time or place, is a negative witness, and is not to be believed in preference to a witness who swears affirmatively, that such party did receive value. Matthews vs. Poythress. i Ga 287 31. A witness liable to a third person, who is liable to the party calling him, is a competent witness. Ibid. 32. A. brings ejectment for land, and holds B's deed as part of his claim of title. B is offered as a witness for defendant, and upon his voir dire states, that he never made the deed under which A claims ; that he has given his bond for titles to the defendant, and holds his notes, and had been notified by him to appear and defend : Held, that B was an incompetent witness. Fain vs. Oathright. 5 Ga 6 33. A co-defendant to a bill in Equity, who is made so for mere form's sake, is a competent witness, if no decree be prayed againsthim. Ba- gan and Key vs. Echols. 5 Ga 71 34. The words of a witness are to be taken in their ordinary meaning ; and when testifying to a fact within his knowledge, the evidence may go to the Jury, notwithstanding he fails to affirm positively that it is, or is not so. Hammock vs. McBride. 6 Ga 178 35. A witness who is liable to an action by the party for whom he is called, in case that party should not recover, is incompetent to tes- tify, without a release. Hay, Adm'r, vs. The Justices, &c. Macon Coun- ty. 6 Ga 3<52 300 EVIDENCE— IV. Witnesses; Opinions, Examination, . A verbal transfer of a fi. fa. for a valuable consideration, is an equi- table transfer of the interest, but the actual delivery and considera- tion must be proved. Mills vs. Mercer and Wife. Dudley 160 As to control by sm'eties and indorsers, see " Sureties." V. Af'FIDAVITS OF ILLEGALITY. 1. Judgment cannot be entered upon a recognizance, until the sm'eties have been required by scire /acias, to show cause why judgment should not be entered against them; and if judgment be so entered, and exe- cution issues, it may be taken advantage of by affidavit of illegality. Gilmer vs. Blaxhoell et al. Dudley 6 2. The remedy by affidavit of illegality, does not apply to mortgage _/?. fas. Guerard 4.3 and of the agency of the wife in the purchase ; which, however, may be repelled by proof that the credit was, in fact, given to the wife. Gonnerat vs. Goldsmith, fi Ga 14 9. A .sells goods to the wife of B, and takes her note for the amount — she having a separate estate — and gives her a receipt for the hill. Thehusband and wife are living together, and the goods go into their joint use and occupation : Held, that the credit was given to thewife, and thehusband is not liable, in a suit by the creditor, for the price of the goods. Ibid. 10. In such a case, a parol promise by the husband to pay the debt, is void, under the Statute of Frauds, because it is a promise to answer for the debt of another, and ought to be in writing. J bid. 11. A h.usha,ndma.j,hy deed or will, in his lifetime, deprive his wife of the whole of his estate, except dower. So also, he can procure an Act of the Legislature to be passed, limiting her right of inheritance after his death. Beall, Admr'x, vs. Beall. S Ga 210 12. By the Act of 1828, a feme covert is disqualified from acting as the representative of an estate during coverture. In such case the hus- band is entitled to be substituted in her stead. Levirrett vs. Dismukes. 10 Ga 98 II. RIGHTS AND DISABILITIES OF WIFE : AND HEREIN OF THE WIFE'S EQUITY. 1. The wife is entitled in Equity to a suitable provision for herself and her children out of her fortune, whenever it is within reach of a Court of Chancery, and not reduced into possession by the husband ; and this right extends to both legal and equitable claims in action. Belletal. vs. Bell. 1 Kelly 639 2. Whether the children have a distinct substantive claim to a provision ? Query. Ibid. 3. The wife may file her bill by her next friend, to assert her equity. Ibid. i. The wife's equity is good against her husband's assignees in bank- ruptcy orinsolvency, against his assignees to pay his debts generally, and also against a special assignee or purchaser for value. Ibid. 5. When the wife's father leaves an estate in negroes, a division of the negroes, under our Statute, at the instance of the administrator, setting apart one share to thehusband in right of his wife, and leaving it in 344 HUSBAND AND WIFE— II. Rights & Disabilities of Wife, Ao. the possession of the administrator, neither the husband or "wife being present nor represented, and no refunding bond being given, is not such a reduction iato possession as will defeat the wife's equity. Ibid. 6. The husband has no interest vested in him in his wife's choses in ac- tion, until he reduces them into possession ; and as a general rule, a Court of Equity will not compel the husband to reduce them into pos- session, so as to defeat the wife's right of survivorship theieto. Sayre vs. Mournoy, Adm'r, &c. 3 Kelly 548 I. Where a judgment creditor comes into a Court of Equity andasks its assistance to have appropriated to the payment of his debt against the husband, property to which the husband may be entitled, in right of his wife, adequate provision must first be made for the sup- port and maintenance of the wife and children, if any. Napier et al. vs. Howard. S Kelly 204 8. What will be considered adequate ■prOYision for that purpose, must de- pend upon the circumstances of the case,' and the condition of the parties. The Court ought to be liberal, and may appropriate ihe whole or part of the property for the benefit of tlie wife and children, as it may deem liberal and just. Ibid. 9. A chose in action heloBging to the wife before marriage, and not re- duced to possession by the husband during the coverture, survives to the wife. Stephens et al. vs. Beall. 4 Ga 319 10. A feme covert cannot interpose a claim individually, imder the Claim Laws of Georgia. Hardwick vs. Hook, Receiver. 8 Ga 354 II. The Statute of Limitation, does not run against'a feme covert whose cause of action arose during coverture, even though suit be brought in the name of the husband and lierself. Mynt atid Wife vs. Hatch- eit. 9 Ga 328 12. A feme sole having drawn land in the lottery and married before the grant issues, the land does not belong to the husband by the marital right, and if it does not issue until after the death of the husband, tlie land belongs to the widow, and not to the representatives of the husband. Salter vs. The Lessee of Williams. 10 ©a 186 See Title "Dower." Also, Article III. 13 andll, of this title. HUSBAND AND WIFE— III. Sepaeate Estate, &c. 845 III. SEPARATE ESTATE— MARRIAGE ARTICLES— SETTLEMENTS, AND ARTICLES OF SEPARATION. 1. Marriage is a, valuable consideration — as muct so as money paid; and a marriage settlement upon a wife and her issue, ■will not be set aside in favor of even preexisting creditors. The Bank vs. Marchand. T. U. P, Chart 250 2. Not even if the husband -was guilty of a fraud, the wife not being^jar- ticeps criminis therein. Ibid. 3. A settlement made by the husband on the wife, after marriage, with- out a valuable consideration, and not executed in pursuance of any agreement entered into before marriage, is a mere voluntary convey- ance, and void as against prior creditors of the husband. JDenbell vs. Fisher. R. M. Charl 36 4. Marriage articles will be executed in favor of all persons coming with- in the scope of the marriage consideration, and at their instance, but not at the instance of mere volunteers. Merritt et al. vs. Scott and Beat, Adm'rs, die. 6 Ga 56S 6. Those having natural claims upon the parties, such as the wife and offspring, and those claiming under and through them, alone come within the scope of the marriage consideration. I bid. 6. The fact that collaterals are first mentioned in the limitations of the articles, does not bring them within the reach and influence of the agreement. Ibid. T. "Where a Court of Equity executes articles in favor of persons within the scope of the marriage consideration, it will, at the same time, ex- ecute them also as to volunteers, it being the rule of Chancery to do ■nothing by halves. Ibid. 8. Where, upon application to a Court of Equity, the marriage articles are executed partially, viz : in behalf of one of the settlers, without being executed as to the volunteers : Seld, that upon a subsequent ap- plication to a Court of Equity, at the instance of the volunteers, the former decree cannot be invoked in their favor. Ibid. 9. By deed a femme sole conveys her estate, in contemplation of mar- riage, to trustees, to hold for her sole use, until the marriage ; to the joint use of herself and her husband, during their joint lives ; if she survives him, then to her and her heirs ; and if he survived her, then to him and the children of the marriage, if any, jointly, during his 44 :i46 HUSBAND AND WIFE— III. Separate Estate, 1, which declares that when in actions of slan- der the damages assessed shall be less than 40 shillings, the plaintifif shall recover no more costs than damages : Held, that the value of forty shillings, in dollars and cents, is to be determined according to the rate at which dollars were estimated in shillings and pence, at the time when the Act was passed, that is, at the rate of 4 shillings and 8 pence, and that the sum prescribed by that Act is eight dollars and 57 cents and a fraction of a cent. Thurmond vs. Horton. 10 Ga. 500 17. Held, that in actions of slander, when the verdict is for a sum less than forty shillings, it is not competent for the defendant to have judgment against the plaintiff for his costs incurred in defence of the action. Ibid. LICENSE. ngg LICENSE. 1. Where apeVaon obtains a license to retail spirituous liquors for twelve months, from the Clerk of the Inferior Court, accordins to the pro- visions of the Act of 1809, and pays a valuable consideration therefor, the corporate authorities of a City Council, by an ordinance enacted subsequent to the date of such license, cannot within the limits of the same County, impose and collect any additional tax or impair the rights of the party, acquired under the law as it stood at the time such license was granted. Mayor, 4-c. Rome vs. LumpMn et al. 5 Ga. iil 2. Whether the Act of 1791, requiring license for keeping a tavern or house of entertainment, requires a license to keep a tavern, without retailing spirituous liquors ? Quere. Bonner vs. Wellborn. IGa... 298 3. TaverJi, or house of entertainment, as used in the Act of 1T91, held to be synonymous ; and the word tavern, in that Act, means the common inn of the Common Law. 1 bid. 4. One whose business it is to rent houses, and furnish board, lodging ■and entertainment, for a season, at a watering place, to the visitors who resort there, is not the keeper of a tavern or house of entertain- ment, in view of the Act of 1791. Ibid. 5. One who is the owner of medicinal springs, and uses them as a source of revenue, by furnishing houses, board, lodging and entertainment, to those who resort to them, is entitled to sue in that character, for damage done him by the erection of a nuisance, by which the public are deterred from visiting his springs, and hia profits are reduced thereby. Ibid. 6. Where, by the charter incorporating the City of Eome, which gave authority to the Mayor and Council to pass all by-lawa and ordinances that should appear to them necessary and proper for the security, welfare and interest of said City, or for preserving the peace, health, order and good government thereof; and also to authorize said Mayor and Council to license persons to retail spirituous liquors within the said City : Held, that it was competent for said Mayor and Council to pass an ordinance to prohibit the retail of spirituous liquors by those to whom license had been granted within the City, after the hour of ten o'clock at night ; such ordinance not essentially impairing the right to retail un- der the license granted, but only regulating the exercise of it, for the benefit of the peace, order and good government of the City. Morris vs. Oity Council of Rome. 10 Ga 682 390 LIEN — I. Statutory Lien: Steamboats, 387 1 8. The Statute of Limitations will run against an insane person from the time of his restoration to sanity, with knowledge of the existence of the deed. Dicien vs. Johnson, 1 Ga • 484 19. A defendant is not protected by the Statute of Limitations, unless he establishes possession in himself, Or those under whom he claims, for the statutory term. Ibid. 20. Color of title defined. Beverly and another vs. Surhe. 9 Ga 440 LIMITATION OP AdTIONS— III. In Eqtjitt, Ac. 401 21. Though the title of an adverse possesBion be ever so defective, yet the tru6 ownel- mtist Sue within Seven years, cir he is barred his entry. Hid. 22. The question of adverse possession is not for the decision of the Court, but exclusivfely for the Jury. Ihid. 28. How far and to what extent the occlipant will be protected in his possessory title ? Ihid. 24. More than seven years' notorious, peaceable and adverse use and oc- cupation of gold mines, where the party has gone into possession of the land, under deed, will give a statutory right, notwithstanding the vendor has reserved the exclusive privilege of Working said mines. House et al.vs. Palmer. 9 Qa-... 497 26. Where a family of slaves is held by a common title, adverse posses- sion as to one, is good as to all. Cartet and Wife vs. Buchanan. 9 ffa. 639 26. Possession of land, under color of paper title, is not indispensably necessary to protect the tenant, under the Statute of Limitations, Doeex dem. Pendergrast vs. Pratlter. W Ga - 218 2'7. A defendant in ejectment, may protect his possession under the Stat- ute of Limitations, under a parol contract, especially if the purchase money has been paid and possession given. Ibid. IIL IN EQUITY : AND HEREIN OF TRUSTS AND TRUSTEES, AS AFFECTED BY THE STATUTE, AND OF LAPSE OF TIME. 1. Where one partner dies, the Statute of Limitations does not com- mence running in Equity until there is an administrator. Gardner, Adm'r of Spanrij vs. Cwm/ming. Ga. Dec.part /..... 1 2. The Statute does not begin to run in favor of a trustee until his pos- session becomes adverse by a refusal to deliver the trust property, or an appropriation of it by him. Martin and Frost vs. Greer. Oa. Dee. part I. 109 3. Courts of Equity usually act in obedience and in analogy to the Stat- ute of Limitations, in cases where it would not be unjust and inequit- able to do so. McDonald vs. Sims et al. 3 Kelly 396 4. Lapse of time is no bar to cases of express trust created by deed or will, where proceedings are instituted within a reasonable time, and there is no doubt either as to the origin or the existence of the trust. Ibid. 51 402 LIMITATION OF ACTIONS— III. In Equity, &o. 6. What is the limitation to bills of review in Georgia ? Quere. Har- grayes vs. Lewis. 1 Ga 110 6. Trusts intended by the Courts of Equity, not to be reached or afiFeot- edby the Statute of Limitations, are those technical, continuing trusts, which are not at all cognizable at Law, but fall within the proper, pe- culiar and exclusive j urisdictiou of Courts of Chancery. Thomas vs. Brinsjield. 1 Ga 1B4 I. A bill filed by distributees, to recover against the representatives of a deceased administrator, upon the accounts returned and passed by the Court of Ordinary, m»«ice» years after the accounts were rendered, without any allegation of fraud, or setting forth any excuse or reason for the delay : Held, to be barred_ by lapse of time. . Akins et al, vs. Hill etal. 1 Ga 573 8. In Courts of Equity, fraud has been held to be an exception to the operation of the Statute, until a discovery of the fi'aud. Peiidergrast et al. vs. Foley, Adnir. & Ga 1 9. If a party is to be constituted a trustee by the decree of a Court of Equity, on the ground of fraud, his possession is adverse from the time the circumstances of the fraud were discovered. Harrison vs. Adcock etal. S Ga 68 10. The Statute of Limitations does not begin to run against express trusts created by the act of the parties or the appointment of law, so long as the trust continues, and is acknowledged to be a continuing, subsisting trust, for the reason that the possession of the trustee is the possession of the cestui que trust ; but when the trust is denied by the trustee, and he claims to hold the trust funds or trust property as his own, adversely to his cestui que trust, the latter having knowl- edge of that fact, the Statute will begin to run in favor of such express trustee from the time of such adverse claim or possession. Keaton vs. Greenwood. 8 Ga 97 II. The Statute of Limitations will begin to run in cases of impliedtrusts, created by decree of a Court of Equity in favor of the trustee, from the time of his possession, as it would do in a Court of Law, for the rea- son, that his possession never was the possession of the alleged cestui que trust ; the relation of trustee and cestui que trust never, in fact, ex- ists, until the decree of the Court establishing that relation. Ibid. 12. A bill filed for the recovery of damages for the breach of a bond for titles, is a demand founded on a sealed instrument, and such a claim is not barred until twenty years after the accrual of the right of action thereon. Galdwell va, Montgonriery and Wife. 8 Ga ■• 106 LIMITATION OF ACTIONS— III. In Equity, &c. 403 13. The right of a creditor to force a stockholder to pay in his unpaid subscription for stock in an insolvent bank, is a case of purely techni- cal and direct trust, to which the Statute of Limitations does not ap- ply. Hightower vs. Thornton. 8 Ga 486 14. In Courts of Equity, the Statute of Limitations does not commence to run in cases of fraud, until the discovery of the fraud. Stocks et al. vs. Leonard et al. 8 Qa 611 16. The Statute of Limitations is a good defence, by way of demurrer, if the facts appear upon the face of the bill ; if not, it must be made available by plea. In Equity, if the complainant be Tvithin any exception to the Statute, it is incumbent on him to state it in his bill. Worthy et al. vs. Johnson et al. 8 Ga 236 16. Although the Statute of Limitations applies to constructive trusts, yet it is not available where the legal remedy has not been barred. The Statute does not begin to run in favor of a trust estate, against a debt contracted by an agent thereof, until a return of nulla bona against the agent, or his insolvency be legally ascertained. The prac- tice of exhausting the legal remedy against such agent before proceed- ing in Equity against the trust estate, is in furtherance of justice. Wylly et al. vs. Collins & Co. ^ Ga 223 17. Where an action is brought by a cestui que trust, to enforce against the trustee the provisions of the trust deed, and he does not deny the complainant's interest in the trust estate, but defends upon other grounds, the limitation to the suit is the term applicable to sealed in- struments. Flynt and Wife vs. Hatchett, Trustee, dec. 9 Ga 328 18. The Statute does not run against a married woman to whom proper- ty bad been left in trust after her coverture, she being within the ex- ception in the Statute in favor of femes covert, in a case where she and her husband are suing in Equity for the recovery of the property. Ibid 19. The mortgagee in possession, holds the property in the character of trustee for the mortgagor, and may disavow the trust and disclaim the mortgage ; and in that event, the time of limitation provided by the Statute for the recovery of the property at Law, will begin to run in his favor from the disavowal ; and if he then holds the possession for the statutory term, the mortgagor's right to redeem is barred. Morgan, Adm'r, vs. Morgan. W Ga 29T 20. When the mortgagee relies upon the Statute after a disavowal of the trust, it lies upon him to show the disavowal, and to bring home to the mortgagor kiiowledge of the fact, and this knowledge cannot ba shown constructively. 1 bid. 404 LIMIT ATIOIf OF ACTIONS— IV. Exceptions to the Statute, &o. IV. EXCEPTIONS TO THE STATUTE: AND HEREIN OP SUITS BY AND AGAINST ADMINISTRATORS, &c. 1. Where the maker of a note vas banished by Act of Confiscation, and subsequently released by Act of Assembly, the Statute of Limita- tion did not run in his favor during the time he was proscribed. John- son m. White, Adm'r, S(c. T. U. P. Ohar 141 2. The exception in favor of merchants' accounts, in the 5tli section of the Act of 1767, is not repealed by the Act of 1809. Fellows v^. Chimarin et al. Dudley 101 3. An administrator cannot compute the year of his exemption from suit in support of the plea of the Statute of Limitations. Jordqn vs. Administrator of Jordan. Dudley 182 4. The general rule, that when the Statute commences to run, it will con- tinue to run, must yield to the statutory inhibition against the plain- tiff's right to sue. Ihid. 5. When, dm'ing the existence of a partnership, one of the partners dies, the Statute of Limitations does not commence to run in favor of the surviving partner until there is an administration on the estate of the deceased partner. Administrator of Spann vs. E:^rs of Fox. Ga. Decisions, part I. 1 §. Against the right of action to recover th,e property of an intestate, the Statute of Limitations will not commence to run until administra- tion of his estate has been granted. Lessee of Conyers, Adnir, vs. Kenan. 1 Kelly, 319. See also. Lessee of Oofer, Adm'r, vs. Manne- gan. 1 Kelly 636 7. The Statute of Limitations does not run against the State. Brins- fieldvs. Carter. '2 Kelly, 150. See also, Conyers vs. Kenan, i Ga. 308 8. The Statute does not run against the plaintiff, in this State, during the twelve months he is inhibited from suing the defendant's executor or administrator. Tarver vs. Oomart. 6 Ga 60 9. There is no saving in favor of nonrresident plaintiffs, under the Stat- utes of Georgia. Wynn vs. Zee, Trustee. 5 Ga 217 10. The Statute of Limitations does not run in favor of a tenant in pos- session of land, while the title thereto is in the State. Smead and Sa- vage vs. Doe ex Bern. Williams, Adm'r. 6 Ga 168 LIMITATIOIT OF ACTIONS— IV. Exokptions to the Statute, &c. 405 11 , The Statute of Limitations does not commence to run against the es- tate of a deceased testator, until probate of tlie will and qualification of the legal representative of such estate. Garland vs. Millen, Ex'r. 6 Ga 310 12. The Statute of Limitations will run against an insane person, from the time of his restoration to sanity, with knowledge of the existence of the deed. D.icierirVS. Johnson. 1 Ga 484 13. The Statute of Limitations does not run against minors. Jordan vs. Thornton et al. 1 Ga ■ 617 14. If one or more tenants io common, in an action of trover, be barred by the Statute of Limitations, and one or more be within an exception in the Statute, their exception will not relieve against the operation of the Statute, as to the one barred ; and those within the exception will recover their several interests, notwithstanding the bar of the other. Ibid. 15. If property belonging to an infant, is converted during his minority, the Statute will commence to run against him upon his arrival at full age, in favor of the tortfeasor, and those who claim under him, not- withstanding the property be removed without the jurisdiction of the State, unless prevented by some one exception in the Statute, as the non-residence of the tortfeasor. Ibid. 16. In a Court of Law, the general rule is, that when the Statute begins to run, it continues to run, unless its progress is arrested by some pos- itive legislative enactment. Pendergrast et al. vs. Foley, Adm'r. 8 Ga. 1 17. In Com-ts of Equity,/raMdha3 been held to be an exception to the operation of the Statute, until the discovery of the fraud. Ihid. 18. The interest of infants, as contemplated by the Act of 1817, against which the Statute of Limitations does ilot run, must be such an inter- est as will enable them to maintain an action in their own name by their guardian, as where the legal title to the property is vested in them. Ibid. 19. Where the title to personal property of a testator or intestate vests in his executor or administrator, and the Statute of Limitations has operated as a bar to the right of such executor or administrator to maintain an action therefor against one who has converted it, the right of the infant cestui que trVtSts of such executor or administrator, will be also barred. Ibid,. 20. An adverse possession held during the minority of the true owner, 406 LIMITATION OP ACTIONS— V. New Promise or Acknowledgm't. cannot operate against his right. WMttington vs. Doe ex dem. Wright. 9 Ga 23 21. The Statute does not run against a married woman to whom proper- ty had been left in trust after her coverture, she being within the ex- ception in the Statute in favor of femes covert, in a case where she and her husband are suing in Equity, for the recovery of the property. Flynt and Wife m.HatcIielt. 9 Ga 328 22. The saving in behalf of infants may preserve the right of one of several co-heirs, who is within the proviso, although the other co-heirs who were under no disability, will be barred. Therefore, in ejectment, by two co-heirs upon a joint demise, one of whom is an infant, judgment may be rendered against the plaintiff who is not within the saving of the proviso, and in favor of the title of the infant. Lessee of Pendergrast vs. Prather. 10 Ga 213 28. "Where executors, administrators and other trustees for infants, fail to sue for personal property within the time prescribed by law, the Statute of Limitations binds the minors; nor are their interests saved under the Act of ISIT. Worthy et al. vs. Johnson et al. 10 Ga 358 V. OF A NEW PROMISE OR ACKNOWLEDGMENT. 1. A debt, when once barred by the Statute of Limitations, can only be revived by a new promise, express or implied, and for which the old debt forms the consideration. Brewster vs. Hardeman et al. DvMey.. 139 2. After the dissolution of a partnership, one partner cannot, by a new promise, revive against his co-partuers a debt, from (he obligation of which they have all once been legally absolved ; and therefore, an ac- knowledgment of a debt, or promise to pay it, made by one partner af- ter the dissolution of the firm, and after the debt has been barred hy the Statute of Limitations, will not revive the debt against his former part- ners. Ibid 3. But according to " precedent and authority," the admission of a debt by one partner, after dissolution and before the Statute has interposed a bar, will be binding upon the other partners, so far as to constitute a new point from which the Statute shall commence running. Ibid. i. It is well settled that no advantage shall be taken of admissions made to secure one's peace, or in the way of a compromise; and if an ac- knowledgment and promise for this purpose be replied to a plea of the Statute of Limitations, the evidence will be rejected. Ricks & Lord vs. Thomas. Dudley 218 LIMITATION OF ACTIONS— V. New Pkomisk oe Ackxowledgm't, 407 5. But if the Court, from the circumstances, should be of opinion that the subsequent ackno-wledgment and promise weremade from the con- sciousness of the truth of the indebtedness, the evidence would be considered good and available. Ibid. 6. It is a question of the law for the Court to determine as to what con- stitutes a sufficient acknowledgment to take a case out of the Statute of Limitations. She/tall vs. Clay. R. M. Charl 7 7. An admission from which an existing debt may be necessarily inferred, is sufficient to take the case out of the Statute, though it be accompa- nied with an express denial of the debt. Ibid. 8. A credit entered on a note barred by the Statute of Limitation, does not of itself remove the bar of the Statute; there must be proof that tlie payment which the credit would indicate, was actually made. West vs. Johnson. Ga. Dec. part 1 72 9. If there be no express promise to pay, the acknowledgment, in order to avoid the Statute, ought to contain an unqualified admission of a present subsisting debt, which the party is liable to pay, and not merely that the debt was once due. Dickinson vs. McCamey. 5 Ga. 480 10. An acknowledgment in the defendant's plea, that the signature to the note sued on is genuine, accompanied with a protestation that the debt has been long since discharged, is not such an acknowledgment as will take the case out of the Statute of Limitations. Ibid. 11. An acknowledgment or promise to take a case out of the Statute of Limitations, must specify and plainly refer to the particular debt, or demand, or cause of action which is sought to be revived. Martin, Adm'x, vs. Broach, Ex'r. Ga 21 12. Where there is any dispute as to the facts which go to prove the ma- king of a new promise, there (whether a sufficient acknowledgment or promise has been made to take the case out of the Statute) is a mixed question of law and fact to be passed upon by the Jury ; but where the facts are undisputed, it is for the Court to determine whether they take the case out of the Statute or not. Ibid. 13. A promise to pay a debt barred by the Statute, constitutes a, new cause of action, which a party seeking to avail himself of, must de- clai'« upon, in the words in which it was made, or according to its le- gal effect. The old debt is regarded as the consideration which sup- ports the promise; and in declaring, must be set out as the induce- ment to it. Ibid. 14. It is the province of the Court to determine what is in law, such a 408 LIMITATION OF ACTION'S— V. New Pkomisb or AoKNO\n.EDGM'T. promise as -will take a case out of the Statute of Limitations ; but it is for the Jury to find what promise is in fact made. Love vs. Hackett, Adm'r, et al. 6 Oa • 486 15. A, a, joint .maimer and surety on a note, promised the holder, that if he would not sue on it until a bill to marshall the assets of the principal, who was dead, was determined, and the amount allowed upon the note by the decree was paid, he would pay the balance then due on the note : Held, that upon the fulfilling of the conditions, the promise be- came an absolute promise to pay, and would be a suflScient reply to a plea by A, on a suit against him on the note, of the Statute of Limita- tions. Held, farther — that it was incumbent on the plaintiff to show that the conditions were fulfilled, but that it was not necessary for him to prove that they were fulfilled before the institution of the suit ; it being sufficient to show that they were fulfilled before the trial. Ibid. 16. It is now settled that the acknowledgment, in order to bar the Stat- ute of Limitations, must contain a promise to pay, either express or implied ; and that an implied promise is created from an acknowledg- ment of a present subsisting debt. Brewer and another, Ex'rs, vs. Brem- er. 1 Oa 587 11. In an action upon a negotiable note, barred by the Statute of Limi- tations, a new promise made by the maker, to a prior holder, is suffi- cient to take the case without the operation of the Statute. Bird vs. Adams. 7 Ga 505 18. The case of Martin vs. Broach, (6 Ga. Rep. 21,) reviewed and ap- proved. Ibid. 19. Letters from the indorser to the holder of a note barred by the Stat- ute, which bear date anterior to six years preceding the institution of suit : Held, to be inadmissible to take the case out of the Statute. Hoadley vs. Bliss. 9 Ga SOS 20. Where one of four joint and several promissors, promised to pay the debt before the Statute of Limitations had operated as a bar, it takes the case out of the Statute as to the others. Oox, Ex'r, as. Bailey. 9 Ga 467 21. A new promise may be inferred from the fact of part paj^ment of a note within the sir years ; and this deduction is not only in accord- ance with the older cases, but is consistent, also, with the later and more approved decisions under the Statute. Smith vs. Simms, Adm'r, &c. 9 Ga .- . 418 22. In declaring on a promise, it is not necessary to set it out m hmc ver- LIMITATION OF ACTIONS— VI. Pleading and Evidence. 409 ba — it will be sufficient to set it out according to its tenor and effect. Ibid. 23. To make the indorsement of a payment by the holder of a note ad- missible evidence to rebut the presumption of the Statute, it must be shown that it was done by the privity of the promissor, or that it was entered when its operation would be against the interest of the party making it. Ibid. 24. If, however, the credit is small, as compared with the amount of the debt, and entered just before the bar of the Statute would attach, al- though proven to have been made at its date, the Jury would be jus- tified in finding against it. Ibid. VI. PLEADING AND EVIDENCE. 1. An admission made to secure one's peace, or in the way of compromise, is not evidence against him ; but if the Court, from the circumstances, should be of opinion that the acknowledgment and promise were made from the consciousness of the truth of the indebtedness, the evidence would be considered good and available. Hicks Sf Lord vs. Thomas. Dudley 218 2. Where A holds possession of property in another State, until, under the Laws of Limitation of that State, he acquires title, and B purcha- ses the property of him, and brings it to this State" ; in an action against B, he may plead the Limitation Acts of the foreign State, and his title under it, in bar of the action. Wynn vs. Zee, Irustee. 5 6a. 217 3. In such a case, an exemplification of the Acts of Such foreign State, may be read in evidence, under the general issue. Ibid. 4. In Georgia, upon a plea of the Statute of Limitations; and in all other cases, the plaintiff is entitled to prove new matter, in avoidance of the plea. Henry vs. Peters. 5 Ga 311 5. A promise to pay a debt barred by the Statute of Limitations, consti- tutes a new cause of action, which a party seeking to avail himself of, must declare upon in the words in which it was made, or according to its legal effect. The old debt is regarded as the consideration which supports the promise, and in declaxing, must be set out as the inducement to it. Martin, Adm'x, vs. Broach. 6 Ga 21 6. Where a promissory note is sued on, barred by the Statute of Limita- tion on its face, and the defendant pleads the Statute, the plaintiff may, under our judicial system and practice, amend his petition by al- 52 410 LIQUIDATED DEMAND. leging a new promise, so as to prevent the operation of the Statute. Beard and another vs. Simmons. 9 Ga 4 7. A new promise may be inferred from the fact of part payment of a note within the six years ; and this deduction is not only, in accord- ance with the older cases, but is consistent, also, with the later and more approved decisions under the Statute. Smith vs. Simms, Adm'r, (Sec. 9 aa 418 8. In declaring on a promise, it is not necessary to set it out in hoec ver- ba — it will be sufficient to set it out according to its tenor and effect. Ibid. 9. To make the indorsement of a payment by the holder of a note admis- sible evidence to rebut the presumption of the Statute, it must be shown that it was done by the privity of the promissor, or that it was entered when its operation would be against the interest of the party making it. Ibid. 10. If, however, the credit is small, as compared with the amount of the debt, and entered just before the bar of the Statute would attach, al- though proven to have been made at its date, the Jury would be justi- fied in finding against it. Ibid. Limitation of Estates. See Deed ; Devise and Legacy. LIQUIDATED DEMAND. 1. A demand liquidated, is an amount certain and fixed, either by the act or agreement of the parties, or by operation of law ; nor is it necessary that it should be evidenced by writing. Nisbet vs. Lawson. 1 Kelly. 287 3. In order for a demand to be liquidated, it is not necessaiy that it should be in writing. Anderson et al, m. The State. 2 Kelly. SM Lis Pendens. See Arbitrament and Award. LOST PAPERS— MACON. 411 LOST PAPERS. 1. A copy of a guardian's bond, -where the original is lost or destroyed, pending tlie suit, cannot be established under the 49th Rule of the Superior Courts, because such bond is not an oiBce paper of those Courts. Bryant, Guardian, and another vs. Owens and Wife, 1 Kelly. 368 2. Notice is not indispensably necessary to be given, of a motion to the Court to establish copies of office papers, alleged to be lost or de- stroyed, under the 20th Rule of Practice of the Superior Courts. Saun- ders vs. Smith, Adm'r. 3 Kelly 121 3. Where reasonable diligence has been used in searching for a paper in such places where, by law, it may be presumed to have been de- posited, if in existence, and by making inquiries of those persons who may be legally presumed to have the custody of it, without success, its loss or destruction will be presumed, especially with regard to pa- pers appertaining to a Court, or connected with the official duties of public officers. Fretwell vs. Lessee of Morrow. 1 Oa 264 4. When the administrators of deceased co-obligors are sought to be made parties defendant to an application to establish a lost bond, the names of such administrators should be stated in the petition and rule nisi, with as much distinctness as in other suits. Cobb et al. vs. Cobb. 10 Oa 454 5. In an application to establish lost papers, under the 6th section of the Judiciary Act of 1799, such petition must allege that the defend- ants, or one of them, resides in the County in which the application is made, in order to give that Court jurisdiction of their persons, such ap- plication being considered in the nature of a suit. Ibid. 6. As to proof of contents of lost papers, see Evidence, V. Lunatic. See Idiot, So. ; Insanity. 'MACON. 1. The Act of 1828, which provided that wagons and carriages, loaded with corn and cotton, should pass the Ocmulgee bridge, free of toll, is repealed, jwoiamio, by the Act of 1847, which vested in the corporate 412 MAGNA CHARTA— MALICIOUS PROSECUTION. authorities of the City of Macon, the right to regulate the tolls of said bridge ; the latter Act repealing all laws and parts of laws militating against its provisions. Tlie Mayor, dc. vs. The Macon & Western R, Ji. Co. 1 Ga 221 See Corporations. MAGNA CHARTA. 1. The words of Magna Oharta, that "no freeman shall be taken, or im- prisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed, or passed upon, or condemned, but by lawful judgment of his peers, or by the law of the land," were intended to secure the individual from the arbitrary exercise of the powers of Government, unrestrained by the established principles of private rights, and distributive justice. Flint River Steamboat Company vs. Foster. 5/ Ga ] 94 MALICIOUS PROSECUTION. 1. To support an action for malicious prosecution, it is not necessary to prove an arrest. Stapp vs. Partlow. Dudley 176 2. An action for malicious prosecution, in cases of felony, cannot be main- tained without previously obtaining the order of the Coui't for a copy of the indictment. A vs. JB. R. M. Chart 228 3. An action for a malicious prosecution, cannot be sustained in Georgia, on an indictment for perjury at Common Law. Ibid. 4. Whether there be probable cause or not, is a mixed question of law and fact ; and if testimony be submitted to the Jury on both sides of the question, the verdict will not be distm-bed by the Court, be the finding what it may. Pomeroy vs. Golly. Ga. Dec. part I. 26 See Costs, I. 2. MANDAMUS. 41 S MANDAMUS. 1. The power of the Judge of the Superior Courts, to grant the writ of Mandamus, is as extensive as the district over which he presides ; and he need not be actually within a County, when he grants the writ to an inferior judicature of the County. Mx parte Oarnochan. T.U.P. Chart 216 2. The writ of mandamus is an established remedy to oblige Inferior Courts and Magistrates to do that jtfstice which, without such writ, they are in duty and by virtue of their ofiSee bound to do. Forsyth vs. The Justices, &c. Dudley 38 3. To sustain an application for mandamus, it is not only necessary that the relator should have a legal right to the thing commanded, but he must also be without a legal remedy. Ibid. 4. If a party on a return to an alternative mandamus, show cause against the admission or restoration of a person to an office, on the ground of non-election, he must make a direct and issuable denial of the fact. State vs. Mayor, <&c. Savannah. R. M. Charl 260 5. A mandamus will lie, it seems, to compel the Inferior Court to grant a new trial where an illegal verdict has been rendered on the issue of fraud or not, in the schedule of an insolvent debtor. Ex parte Simp- son. B. M. Charl Ill 6. The writ of mandamus is grantable at any time, either in vacation or in term, on proper cause shown. Johnson vs. The State ex rel. 1*72 25. The Inferior Court has no authority to grant a new trial in Geor- gia. Ibid. 26. If the finding of the Jury is in conformity with the charge of the Court, and no complaint is made of the charge, the refusal to set aside the verdict and grant a new trial will not be reversed, although the law may not have been properly submitted, the corrective Court be- ing satisfied with the verdict. The Mayor, (^c. vs. Howard. 6 Ga... 218 2T. As a general rule, the Supreme Court will always more readily con- trol the discretion of the Court below, in refusing a new trial than in granting it, for the reason that a refusal to grant a new trial operates as a final adjudication of the rights of the parties. Oliver vs. Face and Biggers. 6 Ga 185 28. Where the Court below fairly submits the facts in the case to the consideration of the Jury, and there is no error in law in the charge of M 42«- NEW TRIALS— I. Gbneeal Principles, purpose of common gambling, is, per se, a nuisance ; and it is not necessary, to constitute it such, that there should be proof of frequent frays and disturbances committed there. State vs. Boon S( Dimond. R. M. Charl 2. The City Council of Savannah, under authority of an Act of the Leg- islature, passes two several ordinances prohibiting the cultivation of 66 442 NUISANCE. rice within the corporate limits, and providing for the destruction of growing crops : Held, that these ordinances were good and valid, and binding upon the inhabitants, as police regulations, and that the City Council had power and authority to judge of, and declare the planting of rice within the corporate limits, to be injurious to the health of the City, and a public nuisance, and to abate the same. Green vs. The Mayor, &c. ^ Ga 1 3. A nuisance defined. Bonner vs. Wellborn. 1 Ga 290 4. In an action on the case for damages done by a nuisance, it is only necessary for the plaintiff to prove possession of the property injured. Ibid. 8. The alienee of the person who erected the nuisance, is liable for its continuance, but only on request to abate it. Ibid. 6. In an action by the alienee of the person first injured by the nuisance, against the person who first erected it, it is not necessary to prove a request to abate it. Ibid. 1. In a matter of complaint against the Savannah & Ogeechee Canal Company, that they were guilty of a nuisance by obstructing the drainage of the lowlands of the Springfield plantation, the City Coun- cil of Savannah determined that they were guilty of the nuisance, and that they be notified to remove it within a specified time, by construct- ing an additional culvert, and in default thereof, that the culvert be built by the City, and that the Qmnpany pay the cost of its construction : Held, that the resolution, as to the costs, is not a judgment by which the rights of the company are concluded, and that the City Council had power to pass such a resolution. The Mayor, 4-c. Savannah vs. The Savannah tSk Ogeechee Canal Company. 9 Ga 281 8. A nuisance is anything that worketli hurt, inconvenience or damage to another; as if one does an act, in itself lawful, which, being done in a, particular place, nece3sa,rily tends to the damage of another's property. Oolcer vs. Birge. d Ga 425 9. Where B. was about to erect a livery stable with a plank floor, upon a public street in a City, on his own land, within sixty-five feet of a public hotel, owned and Isept by C. ; and C. having applied for an in- junction, alleging that the erection of the stable would cause irrepara- ble injury to his property in said hotel, and result in the loss of health and comfort to himself and family, and in the loss of patronage to Ms hotel, in consequence of the unhealthy efiluvia that would arise from the stable, the collection of swarms of flies, and the interminable stamp- ing of horses therein : Held, that this would operate as a nuisamce to complainant, and that he was entitled to the injunction. Ibid. OFFICE AND OFFICERS. an 10. A livery stable ia a City, erected within sixty-five feet of a hotel is, prima facie, a nuisance, and may be restrained by injunction. Coker vs. Birge. 10 Ga [ gjg 11. The answer of the defendant, admitting the facts charged in thebill, as to the distance and relative situation of the stable from the tavern, but denying that the livery stable is a nuisance, is mere matter of opinion, and not sufficient to authorize the dissolution of the injunc- tion, before the final hearing. Ibid. 12. Nor will the Court discharge the ad interim interdict, so far as to permit the experiment to be made, whether a livery stable could be erected and conducted in such a manner as not to be a nuisance. Ibid. Oath. See Affidavit. OFFICE AND OFFICERS. 1. Judicial officers are not liable to civil suits for their judicial acts. Upshaw vs. Oliver et al. Dudley 241 2. The Legislature have power to destroy all offices, (except those held by constitutional officers,) which are made ior civil government, and thus to put an end to the functions of the incumbents, before their term of office shall have expired. State vs. Mayor, dc. Savannah. H. M. Oharl. 250. See, also. State vs. Deios. R. M. Charl 39*7 S. If a corporation be dissolved or surrendered, the offices under it share its fate. Ibid. 4. If a Statute destroys the character in which pei'sons have acted in a civil or public trust, without pointing out a new mode in which the trust is to be performed, the latter also is at an end. Ibid. 5. Persons acting publicly, as the ofiicers of a corporation, will be pre- sumed rightfully in office, and their official acts will be binding on the corporation, so far as third persons are concerned. Hall et al. vs. Carey, Assignee. 5 Ga 289 See County Officers. See, also, Respective Titles of Clerks, Sheriffs, dc. dc. Overseer. See Principal and Agent, II. 11. 444 PARDON— PARENT AND CHILD— PARTITION. PARDON. . So far as the public is interested in a fine imposed, the Executive re- mission has the effect to restore it to the individual fined, although it has been paid over to the Attorney or Solicitor General, and by him to the County Treasurer, before the Executive pardon was granted. In the matter of the Attorney General. 1 Kelly &01 PARENT AND CHILD. 1. The father has the legal right to the custody of his children ; but Courts of Justice may control this right, when the safety or interests of the child imperiously require it. In the matter of Mitchell. It. M. Charl 489 See farther. Title " Habeas Corpus" Parol Evidence. See Evidence, V. PAfiOL License. See Partition, 1. Pabol Tedst in Land. See Equity, I. f. Paeties. See Pleading, II, PARTITION. 1. A and B were joint tenants of a lot of land. No partition had ever been made between them. It was understood, however, that A should have the east, and B the west end of the tract. B agreed that A might erect a mill on his (A's) half, and cut as much timber on the west half, and overflow as much of the land as might be necessary for that purpose. Afterwards, B sold to C, the latter having agreed ex- pressly with A to abide by these stipulations, which B exacted of him before he could consent to sell. After the dam was partly constructed, and timbers collected, for building the mill, C sold to D, who shortly thereafter notified A to discontinue the work; and upon his refusal, PARTNERS AND PARTNERSHIPS— I. General Principles. 445 brought liis action of trespass for the overflowing of his land by the back water : Held, that under these circumstances the action coxild not be maintained, and that the original parol agreement could not be revoked after it had been executed at the defendant's expense. Sheffield et al. vs. Collier. 3 Kelly 85 2. Although Courts of Equity have concurrent jurisdiction with Courts of Law, in cases of partition, as a general proposition, yet, in this Stat9,if the party has an ample and adequate remedy, according to the provisions of our Statute, a Court of Equity will not assume jurisdic- tion. But when it appears from the case made, that there is any ob- stacle in the way, so as to render the remedy at Law less ample and adequate, a Court of Equity will maintain its jui'isdiction, to remove such obstacle, and grant adequate relief. Slogg-. Adm'r, Ac. vs. Cham- hen et al. 9 Ga 1 PAETNEES AND PAETNEESHIPS. I. GENERAL PRINCIPLES. II. POWERS AND LIABILITIES OF EACH PARTNER. III. PARTNERSHIP PROPERTY AND RIGHTS OF CREDITORS. rv. DISSOLUTION : AND HEREIN OF DEATH OF PARTNER AND SUR- ATTING PARTNER. L GENERAL PRINCIPLES. 1. The Courts will not recognize a partnership in crime. Bank of Oa. vs. Clark. Dudley ^" 2. As a general rule, one partner cannot sue another at Common Law. Miller vs. Thorn. R. M. Charl 180 3. If one of two parties plaintiff, being partners in trade, take the bene- fit of the Insolvent Laws, and return on his schedule a debt due by judgment to the firm, and no trustee is appointed in terms of the law, to take charge of the assets returned, no process can be issued for the collection of the judgment. The State vs. Jjuckie. Oa. Dec. part 1. 69 4. Payment of a partnership note by a third person, for one of the firm, is such a payment as to prevent such third person from recovering it against the firm. Childress vs. Stone & Guyton. Ga. Dec. part 11.... 157 448 PARTNERS AND PARTNERSHIPS— I. Gekikal Peino:ples. 5. Where two or ruore persons enter into an agreement to purchase cot- ton jointly; to advance equal portions of the purchase money ; to pay equal portions of the expense of transportation of the same, and to sliare in the loss and profits, it is, in judgment of law, a co-partnership for a single adventure. Solomon vs. Solomon, Ex'r. 2 Kelly 26 6. Partners, as between themselves, may alter, modify, or partially dissolve the co-partnership contract, provided they do not violate any princi- ple of law or public policy. Ibid. 7. The Act of 1820, to regulate the mode of prosecuting actions against joint contractors and co-partners, applies as well to joint and several contractors, as to joint contractors only, provided they are sued to- gether in the same action. Tedlie vs. Bill, i Kelly. 130 8. The holder of a pvomissory note is bound to sue a dormant partner of the makers, not generally known as such, when notified to do so by the surety or indorser. Howard vs. Brown, E£r. 3 Kelly 523 9. A bill filed for a general account and settlement of a partnership, may embrace every object necessary to the final and complete adjust- ment of the concern, without being demurrable for multifariousness. Wells and othen vs. Strange. 5 Ga. 22. See, also, Warthen vs. Brant- ley (So Daniel. S Ga 574 10. Upon an agreement between A and B, that A should take cer- tain negroes of B, and work them in a blacksmith shop, furnish all sup- plies, pay all expenses, and give B one-half of the nett proceeds of the shop for the use of the negroes : Held, that as to third persons, A and B are partners. Bvckner vs. Lee et al. 8 Ga 285 11. If the business of a firm is conducted by one of the partners, and his name is the name of the firm, and a note is made by that partner in his name, the fii'm is liable thereon, if it is proven that the note was made as a note binding the firm, or that the consideration of the note was for the benefit and in the course of business of tlie firm, and that the payee believed these things, and the maker sanctioned hie belief by his acts and representations. Ibid. 12. If money is borrowed, or a purchase made by an individual mem- ber of a partnership, and his note is given therefor, it is, prima facie, the debt of the individual; but the holder, in an action against the firm for the consideration of the note, may rebnt this presumption by proof, and if it appear that the credit was given to the firm, and not the individual, if the money or the projjerty went to the use and in the course of business of the firm, it will be liable. If, however, the credit was given to the individual, the firm will not be liable, although the money or property went to the use, or in the course of business of PARTNERS AND PARTNERSHIPS— II. Poweks, (to. Wl the firm. lu that case, it will he held as an advancementby the mem- ber to the firm, and he -will become a creditor of the firm. Ibid. II. POWERS AND LIABILITIES OF EACH PARTNER. 1. While, as a general proposition, one partner cannot bind another by deed, yet, in regular com'se of business, as in case of a charter party, he may. Adm'r of Straffin vs. Ifewell. T. TI. P. Chnrl 163 2. After dissolution of co-partnership, and until the Statute of Limita- tions shall have attached to the demand, each partner has the power to bind his co-partner by promises which shall avoid the Statute. t'elluws vs. Guimarin et al. Dudley 101 3. The authority of one partner to make contracts which bind the whole, arises from the confidential nature of the partnership relation. Brews- ter et al. vs. Hardetnan et al. Dudley 133 4. After the dissolution, one partner cannot, by a new promise, revive against his co-partners a debt from which all have once been legally absolved; and therefore, an acknowledgment of a debt or promise to pay it, made by one partner after dissolution, and after the bar of the Statute has attached, does not revive the debt against his co-partners. Ibid. 6. But "upon precedent and authority," the promise to pay by one part- ner, after dissolution and before the bar of the Statute has attached, will be binding on the other partners. Ibid. 6. After dissolution, one partner cannot, by his separate acknowledg- ment, convert an open account into a liquidated demand, so as to charge his former partners with interest. Ibid. 1. If one of two partners take the benefit of the Insolvent Laws, the oth- er partner has no authority to collect such of the debts of the firm as are placed on the insolvent's schedule. State vs. Lv^kie. Ga. Dec. part I 69 8. One partner cannot bind the firm by deed. Donaldson vs. Kendall et al. Ga. Dec. part II - 227 9. When one partner fraudulently misapplies any portion of the part- nership funds to his own private use, without the knowledge or con- sent of the other partners, he will be held liable for the same, with in- terest thereon from the time of such misapplication, to the other part- ners. Solomon vs. Solomon, Ex'r. 2 Kelly 2R 448 PARTNERS AND PARTNERSHIPS— HI. Partnership Prop. &c. 10. Where, however, one partner drew $3,500 of the joint funds of the partuersliip, with the express assent of his co-pavtner, it was Held, that he was not liable for interest thereon, until a demand was made upon him to account therefor, by his co-partner, and refused, he being consid- ered in default only from such refusal. Ibid. 11. The admissions of one member of a firm, who is not a party to the suit, when the Court is satisfiedthai thepartnershiphas'heeR established, may be given in evidence to charge the other members, but not other- wise. McOutchin vs. Bankston. 2 Kelly 245 12. After a dissolution, one partner cannot bind his co-partner by anew contract, as an indorsement, even though it be for a debt due by the partners before dissolution. Humphries vs. Chastain. 5 Ga 166 13. In order to sue out an attachment in behalf of a firm, one partner has the right to execute a bond in the name of the firm. Lessee of Wilson and another vs. Smith & Co. 8 Qa S51 14. The answer of one partner to a bill in Equity, containing admissions against the interest of the partnership, although not filed as an an- swer in the case, may be read in evidence as a written admission, on due proof of its execution. Dennis et al. vs. Ray, Receiver. 9 Ga.- • • 449 III. PARTNERSHIP PROPERTY: RIGHTS OF CREDITORS. 1. A creditor who has obtained judgment against one partner, in his in- dividual capacity, anterior to the partnership, may levy on the part- nership effects and sell his debtor's interest therein, without reference , to the claims of the creditors of the fii-m. Ex parte Slebbins ij- Mason. R.M. Chart 'JT 2. If one of two partners takes the benefit of the Insolvent Law, the oth- er partner has no authority to collect such of the debts of the firm as are placed on the insolvent schedule. State vs. Luekie. Qa. Dec. part II 69 S. If A liolds a demand against B . Tompkins. Dudley... l\1 4 62 PLEADING— IV. Of Demureee, 67. On the trial of a sci. fa. against bail, the defendants are not entitled to a Jury trial, unless they file such an issuable plea as will require the intervention of a Jury to try it. Davidson vs. Carter Sf Hitch. Ga 501 68. When it appeared on the face of a record that there was a compe- tent number of Jurors to render a verdict, such verdict may be signed by one as foreman, in behalf of himself and his fellow- Jurors. Ibid. 59. Upon applications for a new trial, it is the better practice, when the. rule nisi is granted upon any ground taken, to let all the grounds stand over for consideration, upon a motion to make the rule absolute. Stanley vs. The State. 10 Ga 60. It is competent for the Court to withdra*- from the Jijry th« con- 476 PRACTICE — II. In Scpeeiok, and Infeeiob Cocbts. sideration of evidence which haa been illegally admitted. Salter vs. The Lessee of Williams. 10 Ga 186 61. The plaintiff in/, fa. may dismiss his levy on the appeal, notwith- standing he has confessed judgment against himself on the first trial. Favor vs. ^oJces. 10 Ga 370 62. A party showed for a continuance, that the commission had been forwarded to the State of Alabama, where it was understood the witness resided, and was returned unexecuted because he had removed from that State, and on that account the cause had been once continued ; that he had learned the Parish in the State of Louisiana to which the witness had removed, but did not know at what place in the Parish he lived ; that he had continued to make inquiry, but had not forward- ed a commission : Held, that the showing was insufficient. Moody and Wife vs. Davis. 10 Ga 403 63. In accordance with the practice which prevails in most of the cir- cuits in this State, costs cannot be taxed against the losing party, for the attendance of witnesses who are summoned but not sworn. Ma- son & Waidrip vs. Dean & Nash. 10 Ga 443 64. For counsel to attempt, surreptitiously, to get before the Jury facts by way of supposition, which have not been proven, is highly repre- hensible ; and the practice should be instantly repressed by the Court, without waiting to be called upon by the opposite party. Berry vs. The State. 10 Ga 511 68. It is the duty of the Court to keep the Jury together, in a criminal case, from the time it is submitted to them until they are finally dis- charged from its consideration. Ifo application should be addressed by the Court to counsel, to allow the Jury to disperse. Ibid. 66. Should the counsel on both sides unite in petitioning the Court to permit the Jury to disperse, there would, perhaps, be no impropriety in granting the application — at any rate, in the trial of petty offen- ces ; still, it is a discretion which should be very cautiously exer- cised under any circumstances, Ibid. 67. The administration of justice should not only be pure, but above sus- picion. Ibid, As to Pbactick in Equity. See Equity, VI. See, also. Amendments, II.; Appeals; Bill of Exceptions; Continuance; Criminal Law, III. Prebceiption. See Limitation of Actions. PmsSuMPTroN. See Evidence, XII. PRINCIPAL AND AGENT-I. Genekally, Ac. 411 PRINCIPAL AND AGENT. I. GENERALLY : AND HEREIN OF RATIFICATION AND EVIDENCE OF AGENCY. II. RIGHTS, POWERS AND LIABILITIES OF AGENTS. III. RIGHTS, POWERS AND LIABILITIES OF PRINCIPAL. IV. PUBLIC AGENTS. I. GENERALLY: AND HEREIN OF RATIFICATION AND EVI- DENCE OF AGENCY. 1. Where au agent had lost the money of his principal at faro, and an action for money had and received, was brought by the principal, it was held that the agent was not a competent witness until released — a release officially attested by a Notary Public is sufficient. Allen vs. Lacy et al. Dudley 81 2. Service of process on the agent of defendant, is null and void in Georgia. Wehnan vs. Polhill et al. R. M. Charl 235 3. Payment by surety, and his subsequent re-imbursement by hia prin- cipal, do not, in Law, constitute such surety the agent of his principal by ratification. Waknek, J. dissenting. Whitehead vs. Peck. \ Kelly. 161 4. "With regard to an agency by ratification, the maxim' of the law is, every consent given to what has been already done, has a retrospective ef- fect, and equals a command. Per Waknek, J. in his dissenting opinion. lUd. " 5. The fact that the sm'cty made the payment, does not weaken his au- thority as agent, in making it for hia principal, in a legal point of view, but on the contrary, greatly strengthens it. Per Warner, J. Ibid. 6. If a person assuming to act as the agent of a corporation, but without legal authority, makes a, contract, and the corporation receive the benefit of it, and use the property acquired under it, such acts will ratify the contract and render the corporation liable thereon. Mer- chants Bank vs. Central Bank. 1 Kelly 428 7. In the execution of an instrument under seal by an agent, the gene- ral rule is, that it must purport upon its face to be the contract of the principal, and his name must be inserted in it and signed to it. Ibid. 478 PRINCIPAL AND AGENT— I. Generally, M 8. In tlie case of instrumeuts not under seal, executed by agents, if it appear from the face of the paper that the credit was not given to the agent, and tlie name of the principal was disclosed at the time of the transaction, and the act was within the power of the agent, the principal is hound. Ibid. 9. Upon such contracts, where the intent is not sufficiently clear, that the principal was to bo bound, the defect may be supplied by parol testimony. Ibid. 10. Where money was paid by A to B, who said he paid it for C, and by his direction : Held, that A was a competent witness to prove to whom the money belonged, and by whose directions he paid it to B; and that his declarations were not admissible in evidence, to prove that fact. WiUiums vs. Kelsey t& Halsted. 6 Ga 365 11. A payment to the authDrized agent, is a payment to the principal. Hodnett vs. Tatum. 9 &a 70 12. The principal cannot ratify the acts of his agent in part, and repu- diate in part, in relation to the same transaction. He must either adopt the whole or none. 1 bid. 13. Though a subsequent ratification by a principal will confirm an as- sumed agency, not so, if the agency be in itself illegal. Harrison vs. McHcnry. 9 Ga 164 li. The registry of the deed of settlement between husband and wife, accompanied by the management of the trust property by the hus- band is, as to third persons, evidence of his agency lor the trust prop- erty. Wylly vs. Collins et al. 9 Ga 228 15. Although the husband, as such, has no right to control the separate estate of his wife, yet he may, like any other person, do a ministerial act, such as purchasing goods for the trust estate. Ibid. Ifi. Taking the note ot the manager of the ti'ust estate, in settlement of the account for goods debited to the manager individually, but which went to the use of the cestui que trusts, does not relieve the trust estate from liability to pay out of its income, where it does not appear that exclusive credit was given to the agent. Ibid. 17. The circumstance of the agent being given, does not vai'y the rule that one simpk contract does not extinguish another. Ibid. 18. If the written promise of the principal debtor does not discharge the debt, a fortiori, the note of th« agent can haye no higher efficacy. Ibid. PRINCIPAL, AND AGENT— 11. Rights, Ac, 19. Where the .principal adopts and ratifies the acts of his agent, such adoption and ratification relates back to the time of the transaction, and is deemed in la-w the same for all purposes, as if given in the first instance. Perry, for the use, the. vs. Hiulson. 10 Ga 36'2 20. Where the principal, with Imowledgo of the facts, adopts and ac- quiesces in the acts done under an assumed agencj', lie cannot after- wards be heard to impeach them, under the pretence that they were done without authority or contrary to instruction.?. Ibid. 21. Wh3re a warrant of attorney, "ratified" and "confirmed" an appeal previously entered, "without incurring cost to me:" Held, that the authority of the agent was ratified by the principal, and the princi- pal was bound for all costs necessarily incident to the appeal, not- withstanding the qualification in the power of attorney. Scranton ct al. vs. Demere et al. C Ga 92 See Sale. I. 17. II. RIGHTS, POWERS AND LIABILITIES OF AGENTS. 1. An agent in fact, who had applied for letters of administration in the name of his principal, has no right to enter and prosecute an appeal from the Court below, in his own name. Tupper vs. Atwood. R. M. Chart iOO 2. An agent of an Insurance Company may maintain an action in his own name, on a note belonging to the, company, provided it be in- dorsed in blank, or made payable to bearer. Msbet vs. Lawson. 1 Kelly I 3. An agent has no right to direct the payment of hii principal's mo- ney to his own debt. Ibid. 284- i. A general power to discount bills of exchange, confers on the agent the power to indorse. Merchant' s Bank vs. Central Bank. 1 Kelly.- 42 f 5. An agent who admits money in his hands belonging to his principal, is liable for interest thereon from the time he received it. Anderson et al. vs. The State. 2 UTe'lly 8*73 0. In actions against agents, for money voluntarily paid by mistake in fact, the true distinction is, where the agent has paid the money over to his principal in good faith, he is not personally liable ; but when he has not paid it over, or before such payment he has notice of the mis- take and is required not to pay it, then he is personally responsible, al- though payment to his principal may have been made. Law vs. Hfunn, S Kdly • 93 480 iPRINCIPAL AND AGENT— II. Rights, &c. I. Where an agent lyas to ha^e ninety days within which to account for goods consigned to him, no right of action accrues to the princi- pal until the expiration of that time. Hall vs. Page. 4 Ga 428 8. A special agent, by mingling his goods with those of his principal, cannot create a tenancy in common. Ibid, 9. A promissory note given by an agent, will bind the corporation, pro- vided he acts within the sphere of his powers, or the act was subse- quently ratified. Butts vs. Cuthbertson et al. 6 Oa 166 10. A distress warrant for rent, under the Act of 1811, which is issued on the oath of an agent, is irregular and void; it can only issue on the oath of the person to whom the rent is due. Howard and others vs. Dill & Go. n Ga 52 II. "Where P entered into a special written contract with R, as an over- seer for the year 1847, and was to receive a stipulated portion of the crop, at the end of the year, for his services, and in the month of Au- gust, R dismissed him from his employment, without sufficient cause or provocation ; whereupon P, in the month of November of the same year, instituted his action against R, to recover damages for a breach of the contract : Held, that the action was not prematurely brought, ' and that in regard to this particular class of special contracts, where the overseer or agent is wrongfully dismissed from the service of his employer, he has his election of three remedies : 1st. He may bring his action immediately for any special injury he may have sustained in consequence of the breach of the contract by the defendant. 2d. He may wait until the termination of the period for which he was employed, and then sue upon the contract and recover his whole wa- ges. 3d. He may treat the contract as rescinded, and may immedi- ately sue on a quantum meruit for the woi-k and labor he actually per- formed. Rogers vs. Parhain. 8 Ga 190 12. A payment to an authorized agent, is a payment to the principal. Hodnett vs. Tatum. 9 (?a '"' 13. There is no Statute in Georgia, authorizing an agent to execute a forthcoming bond for property levied on by attachment. Gilmer vs. Allen. 9 Ga ^ •' 208 14. "Where a Constable who did not write a good hand, requested a Jus- tice of the Peace, in his presence, to make a return of no property on tvio Ji.fas. he knowing the same to be true : Held, that the return was to be considered as the act of the Constable himself. Ellis vs. Francis. 9 Ga 526 PRINCIPAL AND AGENT— III. Rights, Powers, &c. 480 III. RIGHTS, POWERS AND LIABILITIES OF PRINCIPAL. 1. The doctrine, thatthe principalis not liable to one agent or employee, for damages occasioned by the negligence or misconduct of another agent or employee, is not applicable to slaves. Scudder vs. Woodbridge. 1 Kelly 198 2. If a person assuming to act as the agent of a corporation, but without legal authority, makes a contract, and the corporation receive the ben- fit of it and use the property acquired under it, such acts will ratify the contract and render the corporation liable. Merchant s Bank vs. OentralBank. • 1 Kelly 428 3. In the execution of an instrument under seal by an agent, the gener- al rule is, that it must purport upon its face to be the contract of the principal, and his name must be inserted in it and signed to it. Ibid. 4. In the case of instruments not under seal, if it appear from the face of the paper that the credit was not given to the agent, and the name of the principal was disclosed at the time of the transaction, and the act was within the power of the agent, the principal is bound. Ibid. 5. Upon such contracts, where the intent is not sufficiently clear, that the principal was to be bound, the defect may be supplied by parol testimony. Ibid. 6. A promissory note given by an agent, will bind the corporation, pro- vided he acts within the sphere of his power, or the act was subse- quently, ratified. Butts vs. Outhbertson et al. 6 Ga 166 7. Where a warrant of attorney was executed under the rule of the Court, to confirm an appeal by the agent of the party, in which it was recited that he "ratified" and "confirmed" all that the agent had done, or might thereafter do, in the premises, '' without incurring cost to me " : Held, that this was a ratification by the principal, and he was bound for all costs incident to the- entering, notwithstanding the qualification in the power of attorney. Seranton et al. vs. Bemere et al. 6 Ga 8. In an action against a special agent, who collects money for his prin- cipal, it is not incumbent on the plaintiff to prove that he has not ac- counted for or paid it over. The Merchants' Bank vs. Rawls et al. 1 Ga 9. If one sells property of another, without authority, the owner may waive the tort and sue him for the money. 1 bid. 62 92 191 482 PKOCESS. 10. Where P, without authority of law, sold the land of 17 to P A H, af- ter the death of N, and before administration on N's estate, and re- ceived a part of the purchase money therefor : Held, that the adminis- trator of N could not maintain an action against P for money had and received to his use, nor for the use of the estate of If, for the reason that the legal representatives of N had not been deprived of any legal or equitable interest in the land, by such unauthorized sale, as would equitably entitle them to recover the purchase money therefor. Crews, ExW, vs. Heard, Adia'r. 1 Ga 60 IV. PUBLIC AGENTS. 1 . Public agents contracting in behalf of the public, are not individually liable for the payment of such contracts ; as where a note was given by four individuals, who were acting as Justices of the Inferior Court for the County of Heard, for the erection of a Court house for the ben- efit of the County, under the authority of a public Statute, they are not individually bound, Ghent etal. vs. Adams. 2 Kelly 216 2. Where the makers signed the note with the addition of the initials, J. I. C. to their names, parol evidence is admissible for the purpose of showing (when there is any doubt) whether the contract was in fact made in their individual or ofiScial capacity. Ibid. 3. In a suit upon an instrument, reading " We, the trustees of Oak Chumpna Academy, promise, &c." Held, that defendants might prove that plaintiff contracted with them as agents, giving the credit to their principal ; and that plaintiff might show by parol, that he contracted with them personally, and gave credit to them individually. Cleam- landvs. Stewart et al, ty Kelly 297 Prison Bounds. See Insolvent Debtors. Private Wats. See Constitutional Law, IV. 11. Hoads and Ways. PROCESS. 1. Service of petition and process on agent of defendant, is null and void, under the law of Georgia. Welman vs. Polhill et al. R. M. Gharl ■■• 2S5 2. Where the service is void, appearance and plea to merits will not cure it. Ibid. 3. Objection may be taken at any time. Ibid. PROHIBITION— PROMISSORY NOTES— I. Geneeally, Ac. 483 4. Process taken out more than twenty days before the next ensuing term of the Court to which it is made returnable, and not returned to such next ensuing term, but altered and made returnable to another term, to be held after the one to which it was fii-st made returnable, is void under the provisions of the Judiciary Act of 1199. Sank of St. Marys vs. Mvmford Sf Tyson. Ga 44 Peofert. See Pleading. PROHIBITION. 1. Prohibition will not be granted, unless the party is in danger of be- ing injured by some suit actually depending ; it is not sufficient that he merely fears that a suit may be commenced, in which he might suf- fer damage. Mealing et al. vs. City Council of Augusta. Dudley 221 2. The writ will be granted against an Inferior Court exercising a juris- diction which is unauthorized by law. Mx parte Putnam. T. If. P. Chart '?6 PROMISSORY NOTES. I. generally: what is; negotiability; considehation. II. indorsement and transfers: and herein of demand AND protest. HI. OF the equities BETWEEN THE PARTIES: WHEN SUBJECT. IF. OF NOTICE TO SUE. V. SUITS THEREON : AND HEREIN OF WHO MAY SUE : DEFENCES. VI. PARTIES, WHEN WITNESSES. I. GENERALLY: WHAT IS; NEGOTIABILITY; CONSIDERATION- 1. Where a Statute required a hand, with secui-ity, to be taken for the rent of a public bridge, and in lieu thereof a promissory note was ta- ken, on suit brought to recover the amount of such note : Held, that the Statute was substantially complied with, and that the note was not void. Central Bank vs. Kendrick. Dudley 67 2. The Legislature of Georgia, in making promissory notes negotiable, i84 PROMISSORY NOTES— I. Gkneeally, invalidate it. lb id. 33. A note given for the purchase of a public office, is void, being oppo- sed to public policy, and the Statute forbidding the sale of public offices . Grant and another vs. McLester. 8 Ga 553 34. Thev following instrument declared a promissory note : "This is to certify that I did, in the year 1844, purchase of B. F. W. his tan-yard and stock ; for which I did promise to pay B. T. L. for the benefit of B. F.W. $475, which amount thereby acknowledge to be unpaid and yet due ; and one note of hand for $53, which note is said to be lost or mis- laid, each amount bearing interest from 1st Jan. 1845. Signed, J. A. S. Sept. 23, 1847." Lowe vs. Murphy, Adm'r. 9 ffa 33S 35. The general rule is, that where a party receives a note as collateral «ecttri«y, without any special agreement, he must use ordinary care and diligence in collecting it, and if any loss should accrue to the other party, by reason of the want of such care and diligence, the law will compel him to make good the loss, but if there is any special agreement between the parties, then they will be bound by such special agreement and not by the general rule. Lee vs. Baldwin. 10 Ga 209 II. INDORSEMENT AND TRANSFER : AND HEREIN OF DE- MAND AND PROTEST. . The omission by the indorser and holder of a note, to charge in exe- ecution a prior indorser, (who had been surrendered by his bail, be- fore judgment, and discharged in consequence of such omission,) will not operate to discharge ^ subsequent indorser from his liabdity to such holder. Wakefield vs. Lambert. R- M. Charl 13 2 Accommodation indorsers are not liable to contribution as sureties in ' Georgia, either at Common Law, or under the Act of 1826. Stiles vs. Eastman et al. 1 Kelly 210 488 PROMISSORY NOTES— II. iNDoasEMENT and Transfer, &o. ;>. Separate judgments are rendered against the indorsers of the same note ; tlie two last, by agreement with the plaintiffs, take an assign- ment of the judgment against tlie first indorser, and pay the plaintiffs the amount due upon the judgments against themselves, which are en- tered satisfied: Held, the judgmeutso assigned is not extinguished by the satisfaction of the judgments against the two last indorsers, and that they might proceed under such assignment with the fi. fa. against the first indorser, and by levy and sale re-imburse themselves the amount paid out by them ; it appearing that they were not interested in the consideration for which the indorsed note was given. Ihid. 4. The control of an execution against the maker and prior indorsers, as provided for by the Act of 1839, should be obtained under an order of Court whence the_/S. /a. issued. The payment by the indorser need not be forced by levy ; it may be voluntary, and yet in the eye of the law, it is a payment under the compulsion of legal process. Ibid. 5. As to notice to indorsers by Central Bank. See Merchants^ Bank vs. Central Bank. 1 Kelly, 43. Also McDougald vs. Central Bank. S Kelli/ 191 6. A bill of sale to a slave, containing a warranty of soundness, is not negotiable under our Statute, by indorsement. Broitghton vs. Badgett. 1 Kelly n 1. Can an instrument under seal be transferred by an indorsement not under seal 1 Qnere. Jbid. S. The Act of 1'799, has reference exclusively to liquidated demands, Avhether for money or other things, and applies to those instruments alone, which are for payment of an ascertained sum of money, or some specific article or articles of property. Ibid. 9. A note to be negotiable in Georgia, must be payable to the payee, or Ids (yfder, or assignee or to bearer. "Without such negotiable words, it is a valid instrument between the original parties, and is entitled to the allowance of days of grace, and may be declared on as a, promissory note, but it cannot be negotiated so as to enable the assignee to sue upon it in his own name. Reed, use of Holly, vs. Murpliey. 1 Kelly, 237 See also, Broughton vs. Badgett. 1 Kelly HI 10. As between the holder of a banker's check and the indorser, it ought to be presented for acceptance with due diligence, but as between the holder and the drawer, a demand at any time before suit brought, will be sufficient, unless it appears that the drawee has failed, or the drawer in some manner has sustained injury by the delay. Daniels vs. Kyle & Barnett. 1 Kelly, Z05. See also, S. C. 5 Ga 245 PROMISSORY NOTES— II. Indorsement and Tkansfee, &c. 489 11 . A makes his note payable generally to B, or bearer ; B transfers it to by delivery, and indorses it to D : C Seld, to be an indorser and not a guarantor. Cox vs. Adams. 2 Kelly 159 12. In a suit by D, the indorsee, against C, the indorser, the possession of the note held to be prima facie evidence of the delivery of it by B to C. Ibid. 13. Each indorsement is a new contract, and the contract of indorse- ment, as to its nature, construction and interpretation, is governed by the Itx loci contractus ; and the remedies thereon by the lex fori. 1 bid. See also, Levy vs. Cohen. 4 Oa 1 14. The indorsee of a negotiable promissory note, drawn in this State, payable in New York, and returned protested for non-payment, is enti- tled to charge five ■pef cent, damages against the indorser, as provided by the Act of 1823, in cases of protested bills of exchange. Howard vs. Central Sank. 3 Kelly K78 15. The charter of the Insurance Bank of Columbus prescribes the mode in which contracts shall be executed to be binding on the company, viz : that they shall be signed by the president and countersigned by the cashier. In a suit, at the instance of the holder of a bill against the indorser on a bill drawn by the indorser himself, as president of the bank, andin his own favor, he cannot object to the regularity of the contract, nor is he protected on his indorsement by its want of conformi- ty to the Statute. McDoiyald vs. The Central Bank. S Kelly 191 16. "Where the indorsers of a promissory note resided in the County of Richmond, the one seven and a half, and the other twelve miles from the City of Augusta, and were in the habit of receiving their letters and papers at the Augusta post-ofEce, at least once a week : Held, that notices of the dishonor of a note, deposited in the Augusta post-office, addressed to them, was sufficient to make them liable, although there was a post office at the Richmond Factory, nearer to them than the of- fice at Augusta. Walker et al. vs. Bank of Augusta. S Kelly 495 1*7. The certificate of Notarises Public, prima facie evidence of the non- payment of the note, and of notice also, when so stated therein. Ibid. IS. Although a note, on its face, be negotiable and payable at Charles- ton, still, if it be indorsed in this State, and there is no evidence to show the understanding of the parties, that the undei'taking of the in- dorser was to be performed in Charleston, the ii}.dorsement will be deemed a Georgia, and not a Carolina contract. Levy vs. Cohen. 4 Ga ^ 19. Held, that an indorser in blank on a promissory note which is abso- 63 4y0 PJiOMISSOKY NOTES— II. Inuojiseme.nt and Transfer, &c. lute, unconditional, and unrestricted on its face, cannot prove hj parol that it was given for the purpose of being negotiated, or was intend- ed to be negotiated at a chartered bank. Stubbs vs. Ooodall. 4 Oa. 106 20. A note payable to B, and indorsed at the time of its execution by 0, G ia liable, as second indorser, at Common Law. Collins vs. Ever-, ett. 4 Ga 2C6 21. And as surety, under the Act of 1826. Ibid. 22. Parol evidence- inadmissible to show that hu agreed to be liable as original promissor. Ibid. 23. After a dissolution, one partner cannot bind his co-partner by a new contract, as an indorsement, even though it be for a debt due by the partners before dissolution. Humphries vs. Ohastain. 5 Ga 166 24. If the holder of a bank check neglect to present the same for pay- ment within a reasonable time, and the bank fail in the meantime, the drawer is discharged from liability, to the extent of the injury he has sustained by such failure. Daniels vs. Kyle and Barnett. 5 Cfa 245 25. The same doctrine applies to all holders, whether payees or trans- ferrees. Ibid. 26. The holder of a promissory note, who transfers it by delivery, for a valuable consideration, warrants by implication, unless otherwise agreed between the parties, that he is the lawful holder, and has a just and valid title to the instrument, and a right to transfer it by de- livery. He also warrants, in like manner, that the instrument is gen- uine and not forged or fictitious, and that he has no knowledge of any facts which prove the instrument, if originally valid, to be worthless, either by the failure of the maker, or by its being already paid, or oth- erwise to have become void or defunct ; and any concealment of these facts, on the part of the transferrer of the note, operates as a fraud on the rights of the transferree, for which a Court of Equity wiU en- tertain jurisdiction to compel discovery and grant relief. Winter vs. Bulloch. 6 Ga ; 230 21. Upon the transfer of a note payable to bearer by delivery, the trans- ferrer ceases to be a party to it, and is not generally responsible thereon to the transferree, or any subsequent holder. But if he un- dertake to guaranty the payment of the same, he will be liable on that special contract, and that is a proper subject-matter of set-oif. Crenshaw vs. Jachson. 6 Ga 509 28. A transfers a note, payable to bearer, to B by delivery, and says: '' C, (the maker) although a poor man, is perfectly good for his con- PROMISSORY NOTES— III. Of the Equities, Ac. 491 tracts, and if is uot good, I am good :" Held, that these sayings are admissible to support a plea of a promise and undertaking to guaran- tee the payment of the note. Ibid. 29. The purchaser of a note after due fi-om an indorser who has paid it, cannot recover out of a prior indorser any more than his vendor paid upon it. Bethune vs. McCrary. 8 Oa 114 30. A note made payable a< cirte?- o/ i/te banhiin Macon,\iAAio\ie^ within theprovisoof the Actof 1826, which dispenses with demand and notice to charge an indorser. Hoadly vs. Bliss. 9 Ga 303 31. An indorser can waive demand and notice before thejnaturity of the note only. After its- maturity, he can waive proof of demand and no- tice. Ibid. 32. The transfer of a negotiable note, upon which suit is pending, con- veys such an interest in the judgment obtained thereon, as will enable the transferree to sue process of garnishment in his own name. Dm- gas vs. Matthews et al. 9 Ga 510 83. When a party, liable over as transferrer to the transferree of a prom- issory note, is notified of a plea of failure of consideration, filed to a suit by the transferree thereon, the transferree is a privy, in law, to the judgment thereon, and is concluded thereby. And if, afterwards, the transferrer is proceeding at Law to enforce securities against the transferree, taken in payment for the note, Equity will relieve by in- junction and decree. Bulloch vs. Winter. 10 Ga 214 As to Control by Indoesers, see Surety. See next Division of this Title. See, also, Bills of Exchange ; Notice and Demand. III. OF THE EQUITIES BETWEEN THE PARTIES : WHEN SUB- JECT. 1. A transfer of notes long after they become due, will not deprive the maker of any defence to which he would have been entitled, had they continued in the hands of the payee. Crawford, Adm'r, &c. vs. Beal et al. ■ Dudley ^°* 2. A note given for a consideration, in violation of public policy, is void as between maker and payee ; but if indorsed before due, and with- out notice, in a suit by such innocent indorsee, the consideration will not be inquired into. Poe vs. Justices, ^/ amount thereof, against such note in the hands of au assignee for a valuable conside- ration, but who had never given any notice to the maker of the note, of suoh assignment. Ibid. 15. The holder of a promissory note who trausfera it by delivery, by im- plication warrants that he is holder, and has a valid title ; also, that the insti-ument h genuine, and that he has no knowledge of any facts which prove the instrument, if originally valid, to be worthless, either by the failure of the maker, or by payment, or otherwise void or de- funct. Winter vs. Bullock. 6 Ga 280 16. One who buys a note, bill, or other negotiable security, honafide and for value, after His due, from one who has no title tj it, acquires no title against the true owner. Thomas, Adm'r, vs. jCinsey. 8 ffa 421 IV. OF NOTICE TO SUE. 1. The holder of a promissory note or other instrument, is bound to sue a dormant partner of the makers, not generally known as such, when notified to do so by the surety or indorser, under the Act of 26th Dec. 1831. Howard vs. Brown, Adm'r. 3 Kelly 527 2. A judgment was recovered against the plaintiff, as the subsequent in- dorser, and was settled by him by giving a new note, and agreeing to pay the attorney's commissions upon the judgment, which was kept open as a lien therefor. In a suit upon the old note, by the plaintiff, against a prior indorser, it was Held, that the plaintiff became the holder thereof, eo instanti, upon his settlement of the judgment, so as to be affected by notice to sue the makers, notwithstanding the attor- ney's commissions remained unpaid, and the judgment continued open to secure them. Ibid. 3. Notice was given the holder to sue the maker ; but before the expi- ration of the three months allowed by the Statute, the maker removed out of the State, so that no suit could be instituted against him : Held, that the holder has the whole three months allowed by the Statute, in which to sue, and that the removal of the maker was at the risk of the indorser, and not of the holder. Ibid. i. Notice to the Cashier of the bank, by the surety, to sue the principal, is a sufficient notice to the bank, especially where it appears that the bank acted upon such notice. Banlc of St. Marys vs. Mumford and Ty- son. 6 0a 44 494 PilOMISSOilY NOTES— V. Sum tiiekeon, etc. 5. A bank, when holder of a promissory" note, is within the provisions of the Act of 1831, authorizing sureties to give notice to sue. Ibid. 6. Where it is doubtful whether the surety intended to request the cred- itor to sue the principal as a matter of faoor, or to require it as a mat- ter of right, under the Statute, it is proper to submit it to the Jury to find from the facts, how the parties understood the matter. Bethune, Adm'r, vs. Do-Acr. 1 Ga 235 V. SUITS THEREON: AND HEREIN OF WHO MAY SUE: DE- FENCES. 1. ■The maker of a promissory note cannot be sued with the indorser, out of his County. Morris vs. McLain et al. Dudley 1'72 2. To an action upon a note, the defendant will not be allowed to prove a partial failure of consideration. Jordan vs. Adm'r of Jordan. Dudley. 181 5. A purchaser of a special interest in land, who gives his note for the purchase money, and is in quiet possession of the land, shall not be protected from the payment of the note, from a mere apprehension of being distm'bed at some future time. Ihid. 4. The title of a holder of a note, payable to bearer, or to order, and in- dorsed in blank, cannot be questioned in a suit in his name, unless the defence, as against the true owner, makes it necessary. Nisbet vs. Lawson. 1 Kelly 284 6. An agent of an Insurance Company may maintain an action in his own name, on a negotiable note belonging to the company. Ibid. See, also, Field vs. Thornton. 1 Kelly > • 306 6. The owner or holder of a negotiable paper, may bring an action upon it in the name of a person having no interest in it. Meld vs. Thornton. 1 Kelly 306 v. As a general rule, it is true that suits should be brought in the name of the person having the legal interest in the contract ; but in the case of negotiable notes, suits may be brought in the name of persons hav- ing no such interest ; they may sue as trustee for the person having the real interest. I bid. 8. The question of title in negotiable paper, is one which the defendant will not' be permitted to raise, unless it is made to appear that it is necessary for the purposes of his defence. Tbid. 9. In a suit upon a note, appearing on its face to have been altered, the PKOMISSOEY KUTES— VI. Pautiks, when Witnesses. 495 plaintiff is not required to explaiu the alteration, if it is declared upon as altered, and no plea of non est factum filed. Tedlie vs. Bill. 2 K 130 1. The owner of land on the banks of a I'iver has not, as a matter of right, and merely because he is owner, the privilege of keeping a pub- lic ferry. His right to do so can only arise by grant, actual or im- plied. Ibid. 8. The State has a right to erect bridges whenever and wherever the Legislature may deem them necessary for the convenience of the public. Ibid. Roads. See Railroads and Plank Hoods ; Ways. SALE. I. GENERALLY : AND HEREIN OF BONA FIDE PURCHASERS WITH- OUT NOTICE. II. sheriffs' and other judicial sales. As to Fraudulent Sales, see Jlsst^ments, III. Fraud, I. II. I. GENERALLY. ]. A sale of stock bya portion of the stockholders to the rest, ia not such a, sale by the corporation, as will make the piu-chasers liable to the creditors of the company. Berry et at. vs. Matthews et al. \ Kelly ■■ 52'i SALE— I. Generally. 50*7 2. Between purchasers of personal property, the elder title must prevail unless infected with fraud. Butler & Oo. vs. Roll. Ga.Dec. part I.. Zl 8. "When a chattel is sold, on condition that the title is not to vest until paid for, and time is given for the payment, the property is not chang- ed until the payment, though the possession is delivered at the time of the sale. McBride vs. Whitehead. Q-a. Dec. ■part 1 165 4. A horui, fide purchaser acquires no higher estate by purchase, than that of his vendor. Mayer vs. Wiltberger. Qa. Dec. part II 20 6. An agreement to sell lands will not be held fraudulent against a sub- sequent purchaser with notice, unless the party said to be defrauded, has taken steps to avoid it in Equity. Wagnor and Godwin vs. Lewis. Oa. Dec. part II. 205 6. Abend for titles will be held good in Equity against a subsequent purchaser, with notice of the bond. Ibid. I. Apm'chaser of lands not in the possession of vendor, ia deemed to have notice of the tenant's claim. Ibid. 8. A purchaser, without notice of any fraud or defect in the title, who purchases from one affected withnotice, will be protected. Truluck et al. vs. Peeples et al. 3 Kelly 448 9. So a pui'chaser with notice, who purchases from one without notice, will be protected ; for otherwise, a bona fide purchaser might be depri- ved of the benefit of selling his property for its full value. Ibid. 10. If A make two propositions to buy goods of B, one in writing, the other in parol, B has the right to elect which he will accept, and if he accepts the written one, the writing is the only evidence of the con- tract. Wbolbright vs. Sneed. 5 Oa 1 67 II. If the letter contains alternative pi'opositions, the vendor has the right to elect, and an issue may be made before the Jury, as to which he did elect. Ibid. 12. Where the undertakings of the parties to a contract are concurrent, and one is ready and willing, and offers to perform, and the other is not ; the first is dischai'ged from performance, and may maintain an ac- tion against the other. Biggers vs. Pace. 5 Oa 1*71 13. A demand of goods sold at the time and place specified, \s prima facie evidence of the readiness of the purchaser to pay for them. Ibid. 14. Where goods are to b3 delivered and money paid, the actual tender SOS SALE— I. Generally. of the money, will be dispensed with by the repeated declarations of the seller, that he will not receire it. Ihid. 15. Notwithstanding the title may have passed from the seller to the buyer, yet, if the former will not surrender the goods, the latter may either bring trover for them, or else case, for the damage, ffom failure to deliver. Ibid. 16. A exposed certain slaves at public auction, which were knocked off to B. B failing to comply with the terms of sale, agreed in Writing, that the negroes might be re-sold, at his loss and expense : Held, that to charge B, A would have to show that the second sale was consum- mated : Held also, that B was liable for the difference in the two sales, notwithstanding A refused to let him have one of the negroes bid off by him, at the second sale, it appearing he was re-sdd the same day, for the same price. Hicks vs. Ayer. 5 Ga 298 17. "Where a tract of land was devised by a testatoi', and subsequently Bold by his son, purporting to be agent, who gave a bond as agent, and after his death, the son, as executor, made titles: Held, that the devise, under the will, was not defeated by such sale, without showing some authority from the father to the son, to make such sale, as his agent. Beal et ux vs. Grafton. 5 Ga 301 18. Possession retained by the vendor after an absolute sale of real or personal property, is prima facie evidence of fraud, which may be ex- plained ; and after the possession is proven, the bm-then of explaining it, rests upon those who claim under the sale ; and the rule is applieabls to voluntary conveyances and to sales for valuable consideration. Fleming, Guardian, vs. Towiisend. 6 Ga 103 19. Purchasers are not embraced in the tei'ms of the Statute ISthSHi.; noi is personal property embraced ia the terms of i^th Eiiz.; but purchas- ers fall within the spirit of Vith Elh. and personal property within the spirit of itth Eliz. Ibid 20. Upon Common Law principles, a voluntary conveyance is void against subsequent bona fide purchasers, for value, without notice. Ibid. 21. Notice to the purchasermust be actwoZ. The registration of the con- veyance is not such notice as will deprive him of the benefit of Stat- ute 27iA Eliz. 1 bid. 22. Sale of land under an outstanding incumbrance against the vendor, is an eviction in judgment of law; and the vendee is entitled to have the contract rescinded, and the notes given in payment cancelled. Martin vs. Atkinson. 7 Ga 228 SALE— I. Genekally. 509 23. A vendee who takes up an outstanding incumbrance to protect his title, is entitled only to be refunded the amount paid out. Ibid. 24. A vendee who is legally evicted, and who re -purchases the property, is in under anew and distinct title, and the price last paid is no crite- rion of damages for the injury he has sustained, on account of the fail- ure of his vendor's title. Ibid. 25. A vendee legally evicted of land, by judicial sale, under an execu- tion against the vendor, is entitled to recover of the vendor the value of the beneficial and permanent improvements put upou the premises, over and above the rents and profits. I bid. 26. A bona Jide purchaser of land, without notice of any fraud or defect in the title, from one affected with notice, will be protected. Herndon vs. Doe ex dem. Kimball. 1 Ga 4-i2 27. Where, by marriage contract, a slave is conveyed to a. trustee, for the use of the wife for life, and to the offspring of the nuptials in re- mainder ; and subsequently to the death of the wife, and during the infancy of the child who was born of the marriage, the slave was sold by the father, to a bona fide purchaser, without notice : Held, that the issue of marriage, upou coming of age, can recover the property from the remote grantee of the first purchaser, the vendor having no author- ity to sell, being neither trustee to the wife nor guardian to the child. Papot vs. Gibson. 1 Q-a 533 28. The power of a trustee over the' legal estate or property vested in him, properly speaking, exists only for the benefit of the cestui que trust. It is true, nevertheless, that as the legal owner, he may do many acts to the prejudice of the cestui que trust. He may even dis- pose of the estate or property to a bona fir. Mayor and.Aldermen of Savannah vs. The State ex rel Cfreerp et, ql, 4 Ga. 26 11. The ordinance of the corpprate authorities, requiring free persons of color, on removal to the City, to pay a tax of one hundred dollars, and be imprisoned until paid, is void as to the imprisonment. Cooper and, another vs. The Mayor, &c. i Oa 168 12. The City Council of Savannah, under authority of an Act of the Le- gislature, passed two several ordinances, prohibiting the cultivation of rice within the corporate limits, q,i>d providing for the destruction, of growing crops : Held, that these ordinances were good a.nd valid, and binding upon the inhabitants as police regulations, and that the City Council had power and authority to judge of, and declare the plant- ing of rice within the corporate limits, to be injurious to the health of the City and a public nuisance, and to abate the same. Gseenvs.Thf Mayor, SfC. f> Qa 1 13. Tajfation, in reference to the subject-matter, is divided by writers on political economy, as well as by the tax laws of all governments, into three classes : capitation, property and income. The Mayor, &c, vs. Hart- ridge. 8 Ga 23 14. A charter authorizing a municipal corporation to tax real and per- sonal estate, does not necessarily confer the right to tax income. Ibid. 15. The history of the legislation of the State, as to a particular sub- ject-matter of taxation, maybe refeiTed to, as tending to aid in the construction to be given to the Statute ; and where the State has nev- er taxed income, the power to do so in a corporation must a|)pear by express words or unavoidable implication. Ibid. 16. In a matter of complainti against the Savannah & Ogeechee Canal Company, that they were guilty of a nuisance by obstructing the drain- age of the low lands of the Springfield plantation, th-e City Council of Savannah determined that they were guilty of the nuisance, and that, they be notified to remove it within a specified time, by consturcting SCIRE FACIAS. si7 an additional culvert, and in default thereof, that the culvert be built by the City ; and that the company pay the cost of its construction : Held, thai, the resolution as to the costs ia not a judgment by which the rights of the company are concluded, and that the City Council had power to pass such a resolution. The Mayor, S^c. Savannah vs. The Savannah & Ogeechee Ganal Co. 9 (?a 281 17. A Statute of the State declaring of full force, all the ordinances of a City, 01' other corporation, " in operation " at its date, does not em- brace one which ias been judicially pronounced by the Superior Court to be inoperative before its passage. Allen, Ball j 5. If any one is injured by the false or fraudulent return of the officer, he has his remedy against him. Ibid. 6. Where a Sheriff sells land under execution, and goes out of office be- fore executing title to the purchaser, his successor in office may exe- cute a title to such purchaser, without an order of«Coui-t. J^Vei- well vs. Doe ex dem. Morrow. 1 Go, 264 7. Where a Constable levies a Justice's Court/, fa. on land, and deliv- ers the same over to the Sheriff, for the purpose of sale, as provided in the Act of 1811, such Sheriff is, lawfully seized of the land, to sell the same and to convey title to the purchaser thereof. Ibid. 8. A rule absolute against the Sheriff ordering him to pay over money, is neither an extinguishment of his official security, nor a bar to a suit, against his sureties. It is but one of several remedies which the in- jured party may use successively, until he obtains satis^ction. In 366 22. The mere possession of personalty by the cestui que trust, does not amount to an execution of the trust, especially if the interests of re- mainder-men axe aSeeied. Wynnvs. Lee. 5 Ga 217 23. Where, by a deed of trust, the sum of $15,000 was raised by the vol- untary contributions of certain residuary legatees, and vested in u, trustee, subject to certain trusts, one of which wis, that the sum of $5,000, and no more, should be appropriated for the payment of the debts of the cestvi qua trust, then owing, the said trustee to judge of th« justness of the debts which might be presented for payment, and of the order and proportion in which the same should be paid : Held, on a bill being filed by the cestui que trust, alleging that all his debts had beea paid hj tbe tanidt^ and Uiot there remained in his handi 7! 664 TRUSTS AND TRUSTEES. the sum of $3,000 of the $5,000 placed there for the payment of his debts, that the cestui gue trust was entitled to an account from the trustee therefor, and to have the same invested for his benefit. Ifa- pier vs. J^apier, 6 Qa , 404 24. Where, under a trust deed, something is required to be done by the trustees to accomplish the objects of the trust, the trust is executory, and not executed. Schly vs. Lyon and another, Trustees, die. 6 Ga.. B30 25. "Where an action of trover is brought by trustees, in whom the legal title is vested, for the recovery of a negro, the allegation that they sue " for and in behalf of one of the cestui que trust," is surplusage, the trustees being the real parties. Ibid. 26. A testatrix bequeathed as follows : "I give and bequeath to my son, Anthony R. Thornton, a negro woman, &c. in trust, for the use and benefit of M. G. T. wife of nay ^on Benj. H. T. during her natural life ; and after her decease, for the use of their children, now living, or which may hereafter be born to them, and their heirs forever : Held, that upon the death of the tenant for life, the trust was executed and the children were absolute owners of the property. Jordq,n vs. Thorn- ton, et al. 8 Ga 517 27. The power of a trustee over the legal estate or property vested in him, properly speaking, exists only for the benefit of the cestui que trust. It is true, nevertheless, that as the leg^l owner, he may & void. Par- ham vs. The Juctices, (Sic. 9 Oa 34 1 9. Under the laws of Georgia, which authorize the laying out and open- ing of public roads over the enclosed lauds of the citizen, the Inferior Court may order a review, for the purpose of determining whether a road be necessary or not, and may also order the same to be opened before compensation is made or tendered ; but cannot enter upon and seize, and permanently appropriate the land, until compensation is made or tendered. / bid. 10. A citizen cannot enjoin the opening of a public road over his enclos- ed lands, when it appears from his bill, that he has not taken the steps pointed out by the law to procure the assessment of his damages. Ibid. II. Nor upon the ground that the reviewers appointed by the Court signed the petition for the road, and took an active interest in getting it up. Ibid. 12. Nor upon the ground that it does not appear from the return of the reviewers that they were not sworn according to the requirement of the Statute. Ibid. "Widow. See Administrators, Executors, iS-c. V. Dower. Wife's Equity. 668 "WILLS— I. Geneeallt. WILLS. I. GENERALLY. II. EXECUTION AND PROBATE. L GENERALLY. 1. A testator may limit the extent of power conferred by him, and pre- scribe the particular manner of executing it, and the agent is as little able to vary the manner, as to transcend the limit ; for in either case he would be found usurping instead of executing authority. Mackey et al. vs. Moore, ExW, S;-c. et al. Dudley 95 2. It seems that the will of a feme covert will have no efficacy, unless there be an agreement before marriage, giving her the power to make such will, or such right has been conferred on her after marriage, or by some act analagous to an agreement before marriage. The mere parol assent of the husband is not sufficient to give such a will validity. McOowan vs. Jones et al. M. M. Ohar 184 S. In the construction of wills, the intention, so far as it is consistent with the laws of the land, shall govern. Choice vs. Marshall. \ Kelly... 103 4. An instrument purporting to be a deed, by which the grantor gives to his son certain property after his death and the death of his wife, is not a deed, but a testamentary paper, and cannot be read to the Juiy in any case affecting the title to personalty, in a Court of Common Law, until it has passed to probate before the Ordinary. Hester, Ex'r, vs. Toung. 2 Kelly 44 5. A paper having the formalities of a deed may, notwithstanding, be a will. Ibid. 6. In determining whether an instrument be a deed or a will, the Court will not consider what the maker believed it to be, but what, in point of law, it is. I hid. 1. The intention of the maker as to the character of the estate conveyed, is the criterion by which the Court will determine whether a given paper is a deed or a will, and if the intention, gathered from the whole paper, is, that the estate is not to pass, or the instrument to take effect until his death, it is a will and^not a deed. J bid 49 8. The proper test to determine the character of an instrument, wheth- er testamentary or not, is, does the legal estate in the pi'operty which WILLS— I. Geneballt. 569 is tlie subject of disposition, pass by it. Gumming vs. Cumming et al. 3 Kelly i84 9. Instruments pui-porting to be deeds, using words of conveyance in presenti, founded on a good consideration, warranting tiie title, sealed and delivered in the presence of two witnesses, one of whom is a Jus- tice of the Inferior Court, conveying absolutely to trustees : Ist, for the use ofthe grantor during her life; and 2d, for the use of certain rela- tions in remainder, are deeds, and not testamentary papers. Ibid.. . 485 10. "Where a paper writing, in the form of a deed of gift, purporting to convey certain slaves to a trustee, in trust for the daughter-in-law of the donor, and her increase, with a covenant of warranty as to the title, the donor reserving to himself, a " life-time control and interest in the slaves," was offered in evidence : Held, that the paper writing was a deed, and not testamentary in its character. Jackson et al. vs. Oulpepper. S Kelly 688 11. To constitute an instrument in the form of a deed of gift, a testamen- tary paper, it is requisite that its effect should be made to depend up- on the event of the death of the donor, as necessary to consummate it. Ibid 574 12. An instrument executed as a deed, but in these terms, " then the said negroes to' revert back to me, (the donor,) and after my death, to be divided, cSec." ^«W, to be a will. Dudley vs. Mattery, i Ga 32 IS. An instrument may be a will in part, and a deed in part, even as to the same property. Ibid. 14. R. F. by his will, bequeathed all his property to his wife during her life or widowhood. " In case she should die or exchange her situation by marriage," then a sale to be made of all his property, and the proceeds to be equally divided among his children. Held, that the children took a vested remaiader at his death. McOinnis, Adm'r, vs. Poster, Ex'r. 4 Ga ■"■ ■ ^^"^ 15. An instrument conveying slaves as an absolute gift on its face, with a condition, that if the grantee should die before the grantor, the pro- perty shall revert ; and the expression, "when the grantee shall come into possession," Ac. then certain things to be done, is a deed and not a,mll. Spalding vs. Grigg. iOa "^ 16. The criterion forjudging, is the intent of the grantor as to the es- tate granted, and the time when it shall take effect. Ibid. 11. The postponement of the time of going into poMscssion, is very dif- ferent from the title vesting in fuhiro Ibid. 73 670 WILLS— I. Gesiebally. 18. An instrument may be a will in part and a deed in part. Robiwiim vs. Schley and Cooper. 6 Ga 615 19. Ad. instrument conveying negroes and their future increase, abso- lutely to J. S. his heirs and assigns, " but I do hereby save and reserve to myself, a life estate in the property above conveyed to said J. S. his heirs and assigns ; " ffeld, to be a deed and not a will. Ibid. 20. A remainder in personalty may be created by deed, reserving a life estate to the grantor or any one else. Ibid. 21. A conveyance from M. D. M. to J. S. his heirs and assigns, of "all the cattle, horses, furniture, bank stock, money,