ment thereon for the sum of $707 10 for his principal
debt, with interest thereon from the time the same be-
came due, the interest to be calculated on the obliga-
tion payable on demand, from the 14th day of Sep-
tember, 1869, the date of the commencement of the
suit; and upon the plaintiff consenting to do so, that
the judgment of the Court below stand affirmed.
Ibid.
VOLUNTEERS. See Equity, 6.
WAIVER. See New Trials, 3.
1. Where, in a trade of horses, B. asserts certain mate-
rial facts inducing the trade relating to the age and
soundness of the horse, which prove to be untrue,
and B. also promised, in case anything was wrong, to
make it right:
Held, Upon a suit brought by S. against B. on the
breach of warranty, that no particular words are nec-
essary to constitute a warranty, and that the jury, un-
der the facts of this case and the charge of the Court,
were the proper judges of the intention with which
such statements were made, and their finding for plain-
tiff was not contrary to law or evidence, and the Court
committed no error in refusing a new trial on the
ground taken. Burge vs. Stroberg....
2. An action was brought by the plaintiff against the
defendant to recover damages for a breach of an im-
plied warranty of title to fifty shares of Central Rail-
road stock, alleged to have been sold by the defendant.
to the plaintiff in the month of April, 1863, and on
the trial, it appeared from the evidence in the record,
that the defendant sold to or exchanged with the plain-
tiff, one hundred shares of Central Railroad stock
for $20,000 00 of Confederate States eight per cent.
bonds. The contract was consummated between the
parties, by the delivery and transfer of the railroad
stock to the plaintiff, and the delivery and transfer of
the Confederate bonds to the defendant, in pursuance
of that contract; but the defendant did not have the
title to fifty shares of the railroad stock transferred
by him to the plaintiff, the title thereto being in other
parties. The jury, under the charge of the Court,
found a verdict for the plaintiff for $2,000 00 in gold.
The defendant made a motion for a new trial on sev-
eral grounds of error alleged, as to the charge of the
Court to the jury, and as to refusals to charge as re-
quested, and because the verdict was against the law
and the evidence. The Court overruled the motion
for a new trial, and the defendant excepted:
Held, That under the pleadings and evidence in the
case, the plaintiff was entitled to recover from the de-
fendant for a breach of the implied warranty of title
to the fifty shares of railroad stock sold and trans-
ferred by the defendant to the plaintiff under the con-
tract, to which he had no title, and it made no differ-
ence, under the law of this State, whether it was a
sale of stock for bonds, or a barter, or exchange of
stock for bonds. As this was a Confederate contract,
the measure of damages for a breach of the warranty
of title to the fifty shares of stock should have been
left to the jury under the provisions of the Ordinance
of 1865, to have been decided by them according to
the principles of equity as applicable to the contract
between the parties. Cohen vs. Ward.......
Where A filed his bill against a railroad company, alleg-
ing that they were proceeding to sequester a spring
of water belonging to him a quarter of a mile of the
line of the road, without his consent, and had laid
pipes through his land to obtain it, and were using
the water, and the bill asked for injunction, etc., and
on the hearing the Judge dismissed the bill for want
of equity:
Held, Under the facts alleged in the bill and upon the
construction of the charter of said road, the Court
erred in dismissing the bill, it not appearing that the
water is indispensable and cannot otherwise be ob-
tained, and upon the view that there is, prima facie,
a case made for equity jurisdiction entitling the com-
plainant to a hearing. Strohecker vs. The Alabama
and Chattanooga Railroad Company..
WESTERN AND ATLANTIC RAILROAD.
1. Where a suit was pending in a Court of this State
against the Superintendent of the Western and At-
lantic Railroad, upon the Act of 24th of October,
1870, to authorize the lease of said road, and before
said lease was consummated:
Held, Under the 8th section of such Act, which pro-
vides for the settlement of the liabilities of said road
by a board of commissioners therein named, or until
the claim has been verified by a judgment of the
Court having jurisdiction of the case, that the Court
having jurisdiction of the case may proceed, under
such jurisdiction, to a hearing, and by an appeal to
this Court, under the rules of law. Wallace vs. Tum-
lin & Stegall............
2. The Western and Atlantic Railroad was sought to
be made liable for the loss of eight bags of cotton
sent from Atlanta to New York, and which the said
road had delivered to the next connecting railroad on
the line, and it appeared that the Western and At-
lantic Railroad had given two receipts for two lots of
cotton, portions of each of which lots were lost be-
yond their line. One of these receipts simply ac-
knowledged the receipt of the cotton and that it was
consigned to New York, by way of Johnsonville, and
the other contained the same acknowledgment, but
was headed: Western and Atlantic Railroad, East
Tennessee and Georgia Railroad, Virginia and Tenn-
esse, and Orange and Alexandria Railroads, and had
indorsed upon it, "Through freight contract." And
it was in evidence by the shipper that the cotton was
delivered to be shipped to New York; also in evi-
dence by the railroad that there was an arrangement
between it and the other roads, fixing the amount that
each road would charge for the carriage of frieght
over its road, but no other arrangement, and that this
was a through freight contract:
Held 1. That the Western and Atlantic Railroad having
been built by the State to carry freight and passengers
between Atlanta and Chattanooga, it is a matter of
grave doubt if its officers can charge the State with a
contract to carry freight beyond its terminus to dis-
tant points over other roads. Baugh, Superintendent,
rs. McDaniel & Strong
3. That, at any rate, such a contract will not be im-
plied, but must appear to have been distinctly made.
Ibid.
4. That there is nothing in the evidence adduced in this
case to make such a special contract, or to take the
case out of the rule prescribed in section 2058 of the
Revised Code, which is as follows: "Where there
are several connecting roads under different compa-
nies, and goods are intended to be transported over
more than one railroad, each company shall be respon-
sible only to its own terminus and until the delivery
to the connecting roads." Ibid.
"Relief Acts of 1868 and 1870, 3.
"Trustees and Trust Estates, 6.
1. When, in 1858, Nathan Truitt died, leaving a will
in which he bequeathed to be B certain negroes, (de-
scribed as old and faithful slaves,) and certain other
property in trust, directing that B should permit
them, as long as any of them wish, to cultivate, for
their support, a certain parcel of land, and see to it
that they were well treated, and provided that, at B's
death, before the death of all the negroes, the trust
should pass to C, and after the probate of the will, no
action was taken by B in the matter, and the negroes
and other property passed in the usual course of ad-
ministration to the residuary legatee, and since the
emancipation of the slaves, B filed a bill to set up the
Held, That the bill was properly dismissed by the
Chancellor for want of equity. Ellis vs. Rachels...... 175
2. When a paper writing was offered for probate and
record as the nuncupative will of a testatrix, dictated
and signed by her during her last sickness, thirty
days before her death, and attested by two witnesses:
eld, That inasmuch as it did not appear from the evi-
dence in the record that the testatrix was in extremis
at the time of her dictating and signing said paper
writing, or that she was prevented by any sudden sur-
prise or providential cause, from executing the same.
in the manner as required by the laws of this State,
said paper writing could not be established as a nun-
cupative will in the Courts of this State. MCCAY, J.,
dissenting. Ellington vs. Dillard....
t is the right of the witness to have the testimony read
over to him, but not the right of the defendant's coun-
sel that it should be so read; the legal presumption
is that all the legal testimony in the case was correct-
ly taken down under the direction of the Court.
Anderson vs. The State.......
WORK AND LABOR. See Damages, 3.
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