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Hinch vs. The State.

occasions, the parties usually come to blows upon provocation. But if one party, in a slight assault, declines a contest on equal terms, and shoots the assailant down, is the offence to be mitigated to manslaughter? Or to be held to be justifiable homicide? He does not act or defend on the ground, that he feared the party killed, but on the ground of the absolute necessity of taking the life of the assailant, for the preservation of his own. The object of that part of the section to which the request refers, is to impress on the Court and jury, that the accused must have been without blame in the killing; that he declined a contest in the beginning, or after it had begun; that he was unwilling to enter into it; and that it was pressed upon him by the deceased, and that the killing was absolutely necessary to the preservation of his own life.

The last ground in the motion is, in effect, the same as the first, which was abandoned, that the jury found contrary to law and evidence, for if there was no evidence of malice, there could have been no finding of murder. But upon looking through the evidence, no one, we regret to say, can doubt of the existence of malice on the part of the plaintiff in error. If he had no particular malice against the deceased, there was no considerable provocation, and all the circumstances of the killing show an abandoned and malignant heart.

Judgment affirmed.

Hardaway vs. Taylor and Lowther.

ROBERT S. HARDAWAY, plaintiff in error, vs. EDWARD T. TAYLOR, and ALEXANDER LOWTHER, defendants in error.

The presiding Judge has a discretion on the continuance of a cause; if he thinks it unjust to charge it to either party, he is not bound by law to do it.

Practice, from Muscogee county. Determined by Judge WORRILL, May Term, 1858.

On the trial of a claim case, counsel for plaintiff took exception to the execution, of a set of interrogatories offered by claimant, which the Court sustained, and a continuance was about to result. Whereupon plaintiff's counsel withdrew the objections; counsel for claimant objected to proceeding to trial, on the ground that the direct interrogatories were not fully answered.

The Court sustained the objection and held, that the case should be continued. Counsel for plaintiff insisted, that the claimant should be charged with the continuance. The Court refused and ruled that the case should be continued generally.

To which ruling plaintiff's counsel excepted, and assigns the same as error.

DOUGHERTY, for plaintiff in error.

WELLBORN, JOHNSON & SLOAN, for defendants in error.

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

The simple question in this case is whether the presiding judge was bound by law to charge the continuance of the cause to the party, whose interrogatories had not been fully answered.

It did not appear that it was the fault of the party, or of his counsel, that they were not fully answered. It was the fault of the commissioners who are officers of the law.

Hill vs. Mitchell.

On such questions, the presiding Judge must have and exercise a discretion to administer the law justly between the parties, and we have no doubt of its proper exercise in this case.

Judgment affirmed

SAMUEL H. HILL, plaintiff in error, VS. JENNY MITCHELL, defendant in error.

A contract by the Express Company for the transportation of mailable matter, over the usual mail route between cities in the United States, unless it be such matter as is excepted from the prohibitions in the Acts of Congress, is void, and the Company has no lien growing out of such contracts.

Trover and Bail, from Muscogee county. Tried before Judge WORRILL, May Term, 1858.

Certain packages were sent from San Francisco, California, to Jenny Mitchell in Columbus Georgia, by Freeman & Co's Express; Samuel H. Hill reported to Jenny Mitchell's agent that they were in his possession, as agent for Harden's Express Company, in Columbus, and he could have them, by paying the freight and insurance on them. Jenny Mitchell's agent refused to do this, and Hill refused to give them up, and this action was brought. On the trial of the case at the request of plaintiff's counsel the Court charged the jury:

That the packages conveyed from San Francisco to Columbus, were mailable matter, and their being conveyed over a postal route of the United States, was a fraud upon the post office laws, and that the defendant was not entitled to anything for such conveyance; to which defendant excepted.

Hill vs. Mitchell.

The defendant requested the Court to charge the jury, that if they believed from the evidence that the packages were the property of the plaintiff, that she had a right to convey them to Columbus, Georgia, from San Francisco California, in any manner she pleased, either through the post office or in any other manner.

The Court gave the charge with the qualification, that if the packages were conveyed over a post office route, that the defendants were not entitled to recover anything for freight and insurance; and that the contract was void; to which defendant excepted.

The defendant asked the Court to charge the jury, that the retaining of the property by the common carrier, until the freight was paid, was in law no conversion; which the Court charged with this qualification, that the contract for conveying these articles over a postal route of the United States, was void, and this being the case the retaining of the property, after demand, was a conversion; to which defendant excepted.

The defendant asked the Court to charge that if the contract for conveying these packages was a violation of the postal laws of the United States, the plaintiff is particeps criminis, and cannot take advantge of her own illegal act.

Which the Court refused and defendant excepted; and on these several exceptions assigns error.

B. A. THORNTON, for plaintiff in error.

R. J. MOSES by JOHN A. JONES, for defendant in error. By the Court.--McDONALD, J. delivering the opinion.

This is an action of trover, instituted for the recovery of certain California State bonds and deeds conveying land, which were sent by Harden's Express from San Franciscs, VOL. XXV.-15

Hill va Mitchell.

in the State of California, to Columbus in this State over the usual mail route. They were transmitted by express without the authority of the defendant in error, who is the owner, and she refuses to pay the amount charged for their transportation, and the plaintiff in error refusing to deliver them. without, this suit was brought for their recovery. The defendant in error insists, that the contract for their transportation, is au infraction of the postal laws of the United States, and that no freight or other charge can be demanded of her, and that the defendant in the Court below has no lien upon them for such freight or charge. If the bonds and deeds are mailable matter, and the Express Company is prohibited by law from transporting such mailable matter, then the contract, being in contravention of public law, is void, and the defendant can claim no right of any sort under it. The 9th section of the Act of Congress of the 3d March, 1845, declares it to be unlawful for any person or persons to establish any private Express or Expresses for the conveyance, or in any manner to cause to be conveyed, or to provide for the conveyance or transportation by regular trips or at stated periods or intervals from one city, town or other place, to any other city, town, or place in the United States, between and from and to which cities, towns, or other places the United States mail is regularly transported under the authority of the Post Office Department, of any letters or packets or packages of letters or other matter properly transmittible in the United States mail, except newspapers, phamplets, magazines, and periodicals. A penalty of one hundred and fifty dollars is inflicted by the Act for its violation. Brightly's Dig. 767.

The same Act declares what shall be matter properly transmistible by mail. All letters and newspapers, all magazines and phamplets periodically published, in regular series, or in successive numbers under the same title &c., and all other written or printed matter, whereof each copy or number shall not exceed eight ounces in weight, except bank notes sent in packages or bundles unaccompanied by written letters, are

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