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Brady et al. vs. Walters.

same in any other property for their benefit, and that he make a proper return of his actings and doings in the premises to the next term of Sumter superior court. The bond and security was given by the trustee in pursuance of the order, and leave was granted by the order of the judge to the trustee to sell the land as prayed for, and for the purpose as therein specified, and to make a deed of conveyance to said lot of land, as trustee, to the purchaser thereof. The order is silent as to whether the trustee should sell the land at public or private sale. It appears from the evidence in the record that the

rustee sold the land to the defendant, Richardson, at private sale, for the consideration of $6,000 00, and on the 26th of December, 1863, made him a deed thereto, as trustee, reciting therein that it was marle in pursuance of the aforesaid order of the judge of the superior court. Richardson went into possession of the land under that purchase and deed, and continued in possession thereof, either by himself or tenants, up to the commencement of the plaintiffs' action on the 4th of September, 1872. The defendant set up in his plea a title by prescription, under his seven years possession under color of paper title and claim of right, by virtue of his purchase from the trustee of the plaintiffs, as before recited.

1. The deed from Wright Brady to Mary Jane Brady created a trust estate for her sole and separate use, and for the use of her children then born and to be born, in the land conveyed by it. No forinal words are necessary to create a trust'estate: Code, section 2305. When Martin J. Brady was appointed trustee by the judge for his wife and children, the legal title to the lot of land was in him for the uses declared in the deed of Wright Brady; that is to say, the legal title to the land was in the trustee so appointed, in order to protect it for the sole and separate use of the said Mary Jane, and for the use of her children then born and to be born.

2. The trust was not executed, at least until all probability of the birth of any more children of Mary Jane by Martin J. Brady had become extinct. In relation to that point in the case, the evidence in the record is silent.

Brady et al. vs. Walters.

It was

3. It is insisted that the ease of Loyless vs. Blackshear, 43 Georgia Reports, 327, is like this case, and should control it. That was a case for the partition of land. The deed in that case from Walker to Patrick Mills, trustee, conveyed the land to Martha Mills and her children, in fee simple, as tenants in common; there was no use, or trust, created by that ileed for the benefit of Mrs. Mills or her children ; the legal title to the land vested in them under that deed as a fee simple estate; there was nothing for the trustee to do in that case. further insisted on the argument, that the sale of the land was illegal, because it was a private and not a public sale, as required by the 2328th section of the Code. That argument might be sound, if the defendant was relying upon a strictly legal paper title to the land. But it is said the defendant cannot claim a prescriptive title to the land under his seven years adverse possession under written evidence of title, because he had notice at the time he purchased from the trustee, that the sale was not made as the law required it to be made, and therefore, his written evidence of title was fraudulent, within the true intent and meaning of the 2683d section of the Code, The defendant purchased the land from the trustee in pursuance of an order of the judge of the superior court which authorized the trustee to sell it and to make a deed of conveyance to the purchaser, without stating therein whether the sale of the land should be at public or private sale. In our judgment, the purchase of the land by defendant from the trustee, at private sale, and taking his deed therefor in pursuance of said order, did not make that written evidence of title fraudulent within the sense and meaning of the statute. The fraudulent title contemplated by the statute is such fraud as would affect the conscience of the party procuring it with bad faith and moral turpitude.

4. The court charged the jury, in substance, that if the cestui que trusts were represented by a trustee, and that if the trustee sold under an order of court to defendant for a valuable consideration, and defendant went in under such purchase without notice of any fraud, and he and those claiming under

The Bank of Americus vs. Rogers.

him have been in possession seven years before this suit, plaintiffs cannot recover. Whilst the law applicable to the facts of the case in relation to the defendant's prescriptive title, was not as fully and clearly stated in the charge of the court as it might have been, yet, it was substantially.correct, in view of the evidence in the record. The legal title to the land in dispute being in the trustee, he could have instituted suit for the recovery of the possession of it, and if he failed to do so until his right of action was barred by the statute, his cestui que trusts, the plaintiffs, were also barred. This case comes within the ruling of this court in Wingfield, administrator, vs. Virgin et al., 51st Georgia Reports, 139, and must be controlled by it.

Let the judgment of the court below be affirmed.

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THE BANK OF AMERICUS, plaintiff in error, vs. Thomas L,

Rogers, defendant in error.

1. The case of Phillips vs. Dodge (8 Georgia Reports, 57) was virtually over:

ruled by the same judges that decided it, (see 12 Georgia Reports, 615;) and consequently there is no binding authority to the effect that a note payable in specific articles cannot be sued upon in the short form authorized

by the act of 1874. 2. Such a note can be sued upon in that form; and if there be a cause of ac

tion plainly apparent from the declaration and the copy note annexed to it,

the pleadings will be sufficient. 3. If the cause of action be defectively set forth, the declaration is amenda

ble,

Promissory notes. Pleadings. Amendment. Before Judge JAMES Johnson. Marion Superior Court. April Term, 1875.

The Bank of Brunswick brought complaint in the statutory form against Thomas L. Rogers on the following note, a copy of which was annexed to the declaration :

" On or before the 15th day of January next, I promise to deliver to Eleazor Taylor or bearer, five bales of lint cotton

Estes vs. The State of Georgia.

of medium value, each weighing five hundred pounds, at Buena Vista, Marion county, Georgia, for the purchase of lots of land numbers one hundred and seventy-three and one hundred and forty-eight, in the fourth district of Marion county. This the 28th day of November, 1873. (Signed)

« THOMAS L, ROGERS." The declaration simply alleged that the defendant was indebted to the plaintiff in the sum of $500 00, besides interest, on a promissory note dated November 28th, 1873, and due on January 15th, 1874, which the latter refused to pay ; wherefore process was prayed, etc.

The defendant demurred to the declaration. The demurrer was sustained and the plaintiff excepted.

Before the order sustaining snch demurrer was entered, plaintiff proposed to amend by alleging the value of the cotton mentioned in the note, at the time and place specified for its delivery. This the court refused to permit and plaintiff again excepted.

Error is assigned upon each of the above grounds of exceptions.

E. H. WORRILL; GUERRY & Son, for plaintiff in error. BLANDFORD & GARRARD; E. M. Burt, for defendant.

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BLÉCKLEY, Judge.

The declaration, read in connection with the copy-note attached, was good at first. But, at all events, it was amendable. The head-notes state the law of the case.

Judgment reversed.

EDWARD E. Estes, plaintiff in error, vs. THE STATE OF

GEORGIA, defendant in error.

55 30 59 157

1. A person, sober enough to intend to shoot at another, and actually to shoot

at and hit him, without any provocation or justification whatever, is to be

Estes vs. The State of Georgia.

deemed sober enough to form the specific intent to murder; and mere

drunkenness, whatever its degree, will not negative such intent. 2. Unless the evidence suggest some other motive for the shooting, to be com

pared by the jury with the state's theory of a malicious intent, the offense has necessarily the same grade with, as without, drunkenness, and consequently, in such a case, there is no grading to be done, and any charge to the jury in reference to drunkenness, as a separate element in grading the

offense, would be inapplicable, and need not be given by the court, 3. Voluntary drunkenness is no excuse for crime.

Criminal law. Drunkenness. Charge of Court. Before Judge McCUTCHEN. Whitfield Superior Court. April Term, 1875.

Reported in the opinion.

Johnson & MOCAMY, for plaintiff in error.

A. T. HACKETT, solicitor general, for the state.
JACKSON, Judge.

The defendant was indicted in two counts—one for assault with intent to murder, and the other for shooting at another. The jury found him guilty of the assault with intent to murder. A motion was made for a new trial on the grounds that the court charged the jury “that voluntary drunkenness is no excuse for crime,” and refused to charge " that the jury may take into consideration the fact of defendant's drunkenness to grade the offense, and may look to the fact in determining the intent, and that if the jury should find that he was not concious of what he was doing, the jury might take that fact into consideration in determining whether he intended, with malice aforethought, to kill at the time he shot.” The court refused to grant the new trial, and defendant excepted.

The main question is, was the court right in refusing to charge as requested? We think that he was clearly right under the testimony in this case. The defendant shot Williams without the slightest provocation, and whilst he was drinking considerably, he was sober enough to intend to shoot, and he did shoot and hit him in the face, and the ball is lodged there just under the brain,

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