The State of Georgia vs. Woodley. LIGON; and SIMMS, for plaintiffs in error. BUCHANAN & W., contra. By the Court.-MCDONALD, J. delivering the opinion. A person directed to send money by mail must prove a literal compliance with the order, by depositing the money in a letter in the post office, or by delivering it to the post master or his known agent in the post office. The debtor Allen was not discharged from the debt by delivering the letter to the messenger Rucker, who merely carried the mail bags to the post office from the cars and back. He made him his agent merely, to deposit the letter in the post office and should have proved that he delivered it according to instructions. The judgment of the Court below must be reversed. Judgment reversed. THE STATE OF GEORGIA, plaintiff in error, vs. GEORGE W. WOODLEY and others, defendants in error. See the case of The State of Georgia vs. William H. Lockhart, decided at Macon, Junuary Term, 1858, and which covers every point made in this record.* Scire facias to forfeit recognizance, from Henry county. Decision by Judge CABINESS, at October Term, 1857. George W. Woodley being charged with the offence of simple larceny, (stealing a buggy and harness, the property of the estate of Raleigh Hightower, deceased,) entered into recognizance with sureties, conditioned to appear at the next *NOTE: The case referred to: The State vs. Lockhart, 24 Ga. Rep. p. 420. The State of Georgia vs. Woodley. Superior Court of Henry county, to answer the charge &c. He failed to appear and an order of forfeiture of his recognizance taken, and scire facias issued against the accused, and sureties to show cause why the judgment of forfeiture should not be made absolute. The sureties appeared and pleaded, 1st. Nul tiel record; 2d. Insufficiency of the indictinent; 3d. Death of their principal, and 4th. Non est factum Counsel for the State demurred to the second and fourth pleas. The Court overruled the demurrer, holding that the order of forfeiture was only a judgment nisi, and that defendants were not precluded or estopped thereby from making any defence, which at any time they were entitled to make. The Court having ruled and decided that all the allegations of the scire facias must be proven and that the indictment must be produced, counsel for the State read the scire facias, and offered in evidence the judgment of forfeiture nisi, the recognizance, the indictment with the entry thereon of "true bill," with all the other papers of record in the case. Defendants demurred to this evidence, and after argument the Court sustained the demurrer, holding: 1st. That there was a fatal variance between the crime charged in the indictment, and that set out in the recognizance and scire facias. 2d. Tha there was a variance between the order of forfeiture or judgment nisi, and the recognizance. That the crime of simple larceny was defined in the penal code to be the wrongfully and fraudulently taking and carrying away the personal goods of another, with intent to steal the same. The offence alledged in the recognizance was the wrongfully and fraudulently taking and carrying away a carriage commonly called a buggy, the property of the estate of Raleigh Hightower, deceased. The buggy was not alleged to be the property of any person and therefore the crime charged did not come within the definition of theft or simple larceny in the penal code. Mickelberry & Mobley vs. Shannon, adm'r. 3d. The Court further held that the crime charged in the indictment was the stealing a buggy, the property of Hightower and Hightower, administrators of Raleigh Hightower, deceased, and was variant from the one recited in the recognizance and scire facius, and did not amount to the offence of simple larceny. Whereupon the Court ordered the scire facias to be dismissed, and counsel for the State excepted. JAS. R. LYON, and CLARK & LAMAR, for plaintiff in error. ALFORD & MOORE; and J. J. FLOYD, contra. By the Court.-LUMPKIN, J. delivering the opinion. All the points in this case, were fully argued and ruled adversely to the plaintiff in error in the case of the State of Georgia against William H. Lockhart, from the Chattahoochee Circuit, decided at Macon, at the last Jannary Term, of this Court, not yet reported. Judgment affirmed. MICKELBERRY & MOBLEY, plaintiffs in error, vs. JOHN SHAN- A. and B. give their note payable to C., for the hire of a negro for a particular year. Held, that the original note having become functus upon its re-delivery to one o Mickelberry & Mobley vs. Shannon, adm'r. Certiorari, from Monroe county. Decision by Judge CABINESS, at August Term, 1857. John Shannon, administrator of Robert Mays, deceased, was sued in a Justice's Court, by Mickelberry & Mobley, on five several promissory notes, four for $30 each, and one for $5 00. It was agreed by the parties, that the trial and decision in one of the cases should control and determine all. The following is a copy of the notes: "$30. By the 25th December next, we or either of us promise to pay William McCune, guardian of Nealy McCune, or bearer, the sum of thirty dollars, for the hire of a negro man Clem. This 4th of January, 1853. [Signed] ROBERT BLAKELY. Shannon pleaded in the Justice's Court, failure of consid eration, and proved by William McCune, the payee of the notes, that he authorized James M. Clower to hire a negro boy, Clem, to Robert Blakely, for $125, and required him to take small notes and good security; he never saw the notes, there. fore don't know who the security was; knows of no other notes for the hire of a negro for the year 1853, by Mr. Blakely to him, only those alluded to; "Mr. Blakely did not get the negro, because, before Mr. Clower informed me he had hired the negro boy, I had hired him to another man in this county. He did inform me after I had hired him out in this county, (Butts) that he had hired him to Mr. Blakely.” Plaintiffs proved by Clower, that he traded the notes to them after they were due; that he held the notes before they were due; that he got them from Robert Mays, the last of February, 1853, and paid him the money for them. The Justice, before whom the case was tried, permitted the jury to take out with them, Story on Promissory Notes, with their attention directed to those sections relied on and read by plaintiffs. The jury found for the plaintiffs, and defendant Mickelberry & Mobley vs. Shannon, adm'r. applied for a certiorari to correct the errors of the proceedings and verdict. Upon the trial in the Superior Court, counsel for Mickelberry & Mobley moved to dismiss the certiorari, on the ground that twenty days notice of the application for certiorari had not been given; that the notice was served only on the day the writ was issued. The Court refused the motion, and counsel excepted. After argument upon the merits, the Judge sustained the certiorari, and ordered judgment to be entered of record, in favor of Shannon, the defendant, in the Justice's Court, and that plaintiffs pay the cost; holding, that no question of fact was involved which rendered it necessary to remand the case for a re-hearing in the Justice's Court. To which decision counsel for Mickelberry & Mobley excepted. J. M. VARNER, for plaintiffs in error. PEEPLES & CABINESS, contra. By the Court.-LUMPKIN J. delivering the opinion. Could Mays, under the facts of this case, re-issue the note sued on? Beck vs. Robley, cited in 1 Henry Blackstone, 89, note, (Chitty Jr. 399, 450 note,) was a case of this sort: Brown drew a bill upon Robley, which Robley accepted, payable to Hodgson or order. Robley did not pay it when it was presented, upon which, Brown took it up; Brown afterwards endorsed it to Beck, and Beck brought an action upon it against Robley. But the jury thought that when Brown took up the bill, its negotiability ceased, and found for the defendant. And on a rule nisi for a new trial, the Court thought the jury right. And Lord Mansfield said, "when a draft is given payable to A. or order, the purpose is, that it shall be |