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Hopkins vs. Tilman.

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Dr. Joseph T. Reese, examined by commission, testified, that he practiced medicine in the family of defendant, and was called to see a negro girl named Catharine, did not think she was afflicted with any disease when he saw her, called to see her in the Spring or Summer of 1853 or 1854, as well as remembered; thought the girl was practicing a deception on the family of defendant and treated her accordingly. It was the only time he ever saw her; has no idea of her worth. She was lying quietly on the bed in a natural position and condition as far as witness could judge.

Dr. E. C. Hood, testified, that he was a physcian, and in the spring of 1854, was called to see the woman and found her in a stupid, comatose condition, with laborious respiration; pupils of the eye dilated; after watching her symptoms about an hour and using means to restore her to consciousness, she became rational or partially so, and he gave her a cathartic and left her. Judging from the symptoms and the history of the case had little or no doubt but that the negro had had a fit? Does not know whether the case is of long or short standing. Cross examined. The causes of fits are very numerous, and the cause is frequently so obscure that we cannot detect it; is not prepared to say as to the curability or durability of this case; has seen the negro only a few times.

Milton and Zimmerman Hopkins, examined by commission, for plaintiff (to 1st set of interrogatories) say they know the woman Catharine bought by plaintiff of defendant. She was not in good health at the time of purchase, did not understand the nature of her disease at that time. She had her first fit, after we knew her, about the last of February 1854, since that time she has had four other fits, she also has spells of sickness once a month.

Cross examined. Are not physicians; the disease remains about the same as it was when they first knew her; do not consider the girl worth the money that plaintiff paid for her.

Hopkins vs. Tilman.

To ad interrogatories January, 1857. They knew the girl since plaintiff bought her from defendant—has had fits ever since; she has about two fits every month, and is usually confined by sickness about five days in every month ; suppose her sickness caused by the fits, have been sworn before in this case; the negro's health has gradually become worse since they were sworn before in this case, her fits are more severe and her sickness more protracted, her mind also is more impaired.

Cross examined.They are the sons of plaintiff.

William Hood, examined by commission for plaintiff, testified that he knew the girl Catharine; .plaintiff sent for him in May 1854, he went over and went into the field, where plaintiff and the girl were. She was lying on the ground speechless, he supposed with a fit, and in 15 or 20 minutes he assisted plaintiff in removing her to the house, without any effort on her part, and laid her on a pallet, and in a few minutes left.

Cross examined.—Is not a physician and does not know what plaintiff gave for her.

Calvin Spence, proves a tender of the negro to defendant, and that plaintiff at the same time offered defendant $75, to take her back, which he refused to do. This was the last of May 1854.

Cross examined. Was present when plaintiff tendered the negro back, as he considered her unsound—having fits, to which defendant replied “she did not have fits” and he refused to take her back.

The plaintiff closed, and defendant introduced no testimony. The jury returned a verdict for the defendant: plaintiff moved for a new trial on the ground that the verdict was contrary to law and evidence.

The Court overruled the motion for new trial, and plaintiff excepts.

HALL; and RAMSEY, for plaintiff in error.

Lloyd & Pulliam vs. Wright, Griffieth & Co.

B, H. Hill, contra.

By the Court.LUMPKIN, J. delivering the opinion.

The only question in this case is was the verdict of the jury, so strongly and decidedly against the weight of evidence as to constrain the Superior Court to grant a new trial, and this Court to reverse its decision in refusing to order a new trial, as a flagrant abuse of its discretion? We think not.

It does not satisfactorily appear, that the unsoundness of the negro existed at the time of sale. It may have been brought on afterwards. Had the verdict been the other way, we should not have felt compelled perhaps to disturb it. Neither do we as it is. The case was fairly submitted, and the jury were fully competent to weigh the testimony, as they doubtlessly did.

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Judgment affirmed.

LLOYD & PULLIAM, plaintiffs in error, vs. WRIGHT, GRIF

FITH & Co., Defendants in error.

So long as the buyer continues to have a right to object either to the quantum or the

quality of the goods, there has been no acceptance and receipt within the meaning of the statute.

Complaint, from Fulton county, tried before Judge Bull, October Term, 1857.

An action was brought in the Court below by the defendants in error, against the plaintiffs in error, to recover $120 upon an open account for cigars sold and delivered. To this action

Lloyd & Pulliam vs. Wright, Griffieth & Co.

the defendants pleaded, th at the contract to pay the $120 (if ever made) was obnoxious to the 17th section of the statute of frauds, no earnest to bind the contract having been given, nor part payment made or note or memorandum entered into.

Upon the trial of this issue the plaintiffs offered in evidence, the testimony of Jacob H. Wright and Edward Hyatt taken by depositions, going to prove the contract. To the reception of this testimony, the defendants objected on the ground that the contract sued on was within the 17th section of the statute of frauds, and the evidence offered did not take it out. The Court overruled the objection and admitted the evidence and defendants excepted.

Counsel for the plaintiffs having closed, the defendants, counsel moved the Court to dismiss the case on the ground that the contract sued on, which was an open account for cigars, sold by the plaintiffs, residing in the city of Baltimore, to the defendants, residing in the city of Atlanta, upon a verbal order was void under the 17th section of the statute of frauds. The Court overruled the motion and counsel for the defendants excepted.

The jury found a verdict for the plaintiffs for the amount sued for, and the defendant's counsel filed his bill of exceptions, assigning the above rulings of the Court as error.

GARTRELL & Glenn, for plaintiffs in error.

T. L. COOPER contra.

By the Court.-LUMPKIN, J. delivering the opinion.

Under the proof, was this case within the 17th section of the statute of frauds ?

The statute requires that the purchaser should “actually receive” the goods. And although goods are forwarded to him by a carrier by his direction, or delivered abroad on board of a ship chartered by him, still there is no actual acceptance

Oliver et al. vs. Williams.

to satisfy the act, so long as the buyer continues to have the right, either to object to the quantum or quality of the goods. Chitty on Contracts, 392 ; Story on Contracts, 381, 382, 383; Acebal vs. Levy, 10 Bingham, 376 ; How vs. Palmer, 3 B. & A., 321; Lloyd &Pulliam vs. Wright, Griffith & Co., 20 Ga. Rep. 574.

The case of Dutton, 3 Bos. &. Pull. 582; relied on by counsel for defendant in error was a mere question, as to what constituted a good delivery; the statute of frauds was not in the case. It consequently does not meet the question now presented. The decision there was, that a delivery of goods by the vendor, in behalf of the vendee, to a carrier, not named by the vendee, was a delivery to the vendee. That is, it was a good delivery to bind the contract, but not a sufficient delivery to take the case out of the statute of frauds, which requires, that the goods should be “ actually received” to come within the meaning of the statute.

Judgment reversed.

SAMUEL OLIVER et al., plaintiffs in error, vs. Amos A. WIL

LIAMS, defendant in error.

Where the defendant in ejectment takes another person on the land in dispute,

rents him the premises, and after nailing up the cabin, the only building on the place, they retire together, charging the witness not to disclose the transaction ; is the possession changed ? Quere? Clearly it is not, if the whole affair be colorable only, and intended to avoid a suit at the instance of the plaintiff against the defendant as tenant in possession.

Ejectment and nonsuit, from Catoosa county. Decided by Judge TRIPPE, October Term, 1857.

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