Camp vs. Bancroft, Betts & Marshall.

claiming that the large note, for $1383 39, mentioned in said mortgage, was given and executed by himself and his broth

er, for and in lieu of two other notes, then held by Bancroft, Betts & Marshall, against said James B. Camp, and which notes they agreed to deliver to him, Nathan F., but which they have failed and refused to do, and complainant thereby prevented from collecting, or taking any steps to collect said notes; whereby he has been greatly damaged, and prays that said defendants be enjoined from negotiating said note against him and his brother, and that the demand of said Bancroft, Betts & Marshall be abated or reduced an amount equal to said two notes which they represented they held upon said James B. Camp, and which they agreed to deliver to complainant as aforesaid.

At the July adjourned Term of Butts Superior Court, complainant moved to amend his bill, by alleging that since the filing of his original bill, Bancroft, Betts & Marshall have taken steps to foreclose their mortgage and have caused a fi. fa. to issue, which has been levied upon the negroes mortgaged; that defendants reside beyond the limits and jurisdiction of this State, and complainant can have no adequate remedy against them except by obtaining a credit here, upon their demands, for the amount of damage he has sustained by their actions and refusals in the premises. That said notes of James B. Camp, have never been returned or delivered to him, and from all the circumstances he does not believe said notes ever existed; and prays that defendants be enjoined from collecting so much of their demand as is equal to said notes, to-wit: $1383 39; and from collecting and enforcing their said mortgage fi. fa. to this amount.

Counsel for defendants objected to the amendment. The Court, after argument, sustained the objection and refused to allow the amendment, and counsel for complainant excepted.

D. J. BAILEY, for plaintiff in error.

JNO. J. FLOYD, contra.

Walker vs. Walker, adm'r, &c.

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

The matter of the proposed amendment, was matter of "substance." The amendment act of 1854, says, That "plaintiffs and defendants," "whether at law, or in equity, may in any stage of the cause, as matter of right, amend their pleadings in all respects, whether in matter of form, or matter of sub

stance."

This plaintiff, then, we think, had the right to add the proposed amendment, to his bill.

Judgment reversed

NATHANIEL F. WALKER, plaintiff in error, vs. JAMES S. WALKER, adm'r, &c., defendant in error,

[1] Where there is a conflict of testimony and a portion being disregarded, for want of credibility in the witness, it being apparent that they were incapable from nonage to understand the facts about which they testify, and the balance preponderates in favor of the verdict, it is not error in the Court to refuse to grant a new trial, on the ground that the verdict was contrary to the evidence. [2.] The failure of the representatives of an estate to inventory and sell a portion of the property found in possession of their intestate, at his death, but claimed by a third person, ought not to prejudice the title of the estate; provided the circumstances were such as satisfactorily to account for the omission.

[3.] If one, by his will, undertakes to dispose of property claimed by another, and in his possession, the will is no evidence of claim until its publication; no knowledge of its contents being brought home to the opposite party. Neither can the inventory and appraisement of such property, by the executor, be given in evidence in support of his testator's title; suit having been brought within five years from the death of the testator.

[4.] If a trustee collude with a third person, to defraud his cestui que trust, the statule of limitations does not begin to run until after the fraud is discovered.

Trover and new trial, from Upson Superior Court. Decided by Judge CABINESS, November Term, 1857.

Walker vs. Walker, adm'r, &c.

An action of trover was brought by James S. Walker, as administrator de bonis non, of the estate of William W. Walker, deceased, against Nathaniel F. Walker, to recover certain negroes.

Upon the trial the following evidence was introduced by the plaintiff':

John Harrison testified that in 1828 he lived with William W. Walker, deceased, working on his plantation; knew the negro Hannah referred to in the cause. Samuel Harrison was brother to witness, and Nancy McDaniel his sister. In 1828 the former 3, and the latter 10 years of age.

Davis Dawson, heard a demand made by the plaintiff of the defendant in the year 1851, for the negroes Hannah and others. Defendant refused to give up the negroes. Plaintiff gave witness a list of the names of the negroes demanded in order to enable him to recollect them, and plaintiff told him he would be called as witness of the demand.

Jesse Arrington testified that he lived as overseer to William W. Walker, in 1830, and lived half a mile from him at the time of his death. The negro Hannah was in possession of Walker at the time of his death. She had 6 children. Wm. Walker exercised acts of control over them.

Silvanus Gibson, knew Hannah and children. She had been in the possession of defendant since 1830.

Benjamin Walker, knew Hannah in the possession of Wm. W. Walker; first went into his possession in 1823 or 1824; he brought her from Putnam county, and she remained with him till his death.

The defendant introduced the following evidence.

Mary Owen testified that she knew Hannah to be in James Walker's possession from 1834 or 1835; thought Hannah was in possession of Wm. W. Walker till the time of his death. Did not know how Nathaniel Walker got possession of them except it was by the death of his mother.

Nancy McDaniel testified she knew the negro Hannah;

Walker vs. Walker, adm'r, &c.

she belonged to James Walker. She heard Wm. W. Walker say that Hannah belonged to his father, James Walker; that Rebecca, belonging to Wm. W. Walker, was taken ill in the arms, and James Walker sent Hannah to Wm. W. Walker to cook for him until Rebecca got well; that during the stay of the said Hannah at Wm. W. Walker's the father of witness was going to whip her, and Wm. W. Walker told him not to do so, as if he did his father would send for her and take her back home.

Answers of Samuel Harrison to the same effect as the testimony of the last witness.

The defendant then introduced the order of the Court of Ordinary for Upson county, granting letters of administration to Mary C. Walker and Allen M. Walker, on the estate of the said Wm. W. Walker.

Henry Butt testified that when he first knew Hannah she was in the possession of James Walker. James Walker's business was managed by Nathaniel and Allen Walker; never saw Hannah any where but at James Walker's.

E. Atwater, knew Hannah from the death of Wm. Walker; knew Hannah at the place of James Walker; she was used as his property.

James Howell knew Hannah and her children; they were kept on his place and made a crop. James Walker took possession of Hannah and her children after the death of Wm. W. Walker, in the presence of Nat. and Allen Walker, as his own property, and without opposition from them.

Dempsey Jordan testified to the same effect; as also did Peter P. Butt.

The will of James Walker was offered in evidence by the defendants; and also the records from the Court of Ordinary of Upson county.

The plaintiff objected to the admission of these in evidence, and the Court rejected them.

Walker vs. Walker, adm'r, &c.

The Court charged the jury that, " If Wm. W. Walker died in possession of the negroes in dispute, and had possession of them for many years before his death, that was prima facie evidence of title, and conclusive until a better title was shown."

"If James Walker took possession of the negroes after the death of Wm. W. Walker, it is incumbent on the defendant who claims under him, to show his right to take them, and you must look to the evidence to satisfy yourselves whether he had such right."

"If the negroes were loaned to Wm. W. Walker, by James Walker, James Walker did not part with the title to them, or dominion over them, but had the right to resume possession of them when the loan was at an end. If you believe from the testimony, that Wm. W. Walker held the negroes under James Walker, as a loan, James Walker had the right to take them into his possession upon Wm. Walker's death; and you will find for the defendant; but if you are not satisfied by the evidence that Wm. Walker held the negroes as a loan from Jas. Walker, then you will find for the plaintiff, unless the defendant has succeeded in showing a title under the statute of limitations. To constitute title under the statute of limitations the possession must be adverse, and must have continued four years preceding the commencement of the suit."

"If when James Walker took possession of the negroes, he and Allen and Nat. Walker held them jointly, and worked them on a farm held by them jointly, and if the negroes were still under the control and dominion of Allen M. Walker, though that control was exercised jointly with James and Nat. F. Walker, while such joint possession was held by James, Allen and Nat. Walker, the statute of limitations did not run against Allen M. Walker as the administrator of the estate of Wm. W. Walker; his possession enured to the benefit of the estate so far as to protect it against the statute of limitations, so long as such possession continued. But if James Walker took possession of the negroes in his own right