Mitchell-Dooly-Laurens County GaArchives Court..... Faircloth - Nelms, Faircloth-Nelms 1857
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LaVerne Carter http://www.genrecords.net/emailregistry/vols/00028.html#0006854 February 25, 2016, 6:08 pm

Source: Given In Title
Written: 1857




                       FAIRCLOTH-NELMS CASE
                              1857
         ARGUED AND DETERMINED IN THE SUPREME COURT OF GEORGIA
                     MITCHELL COUNTY, GEORGIA


   William H. Odam, administrator, plaintiff in error, vs. Jesse Nelms,
   defendant in error.

   (1) In England the Apellate Court will never refuse a new trial against
   the opinion of the presiding Judge who tried the case and there is nothing 
   in the Laws of Georgia which compels this Court to adapt a contrary rule.
   Where the verdict of the Jury is strongly and decidedly against the weight 
   of evidence preponderates in favor of the verdict.

   Trover from Baker County tried before Judge Allen at December term, 1857, 
   on the appeal.  William H. Odam, administrator of Caleb Faircloth, 
   deceased, brought his action of Trover against Jesse Nelms for the recovery
   of a promissory note for $400.00 made by Roger Hair and payable to the
   deceased and which plaintiff alleged was the property of the deceased, etc.

   The testimony of the trial was very conflicting as to the circumstances and
   terms upon which the note had been delivered to Nelms by Faircloth in his
   lifetime.  The witnesses for the plaintiff testifying that it was placed in 
   his hands for safekeeping.  The witness for the Defendant swearing that it 
   had been turned over to defendant as a payment or indemnity to him for 
   taking care of and supporting the family of the deceased who was living at 
   his home at the time of Faircloth's death.

   Defendant's counsel requested the Court to charge the Jury:

   1st That if they believed from the evidence that plaintiff's intestate 
   that defendant was to support and maintain the minor children of the
   deceased, that this was a good and valid consideration and plaintiff was 
   not entitled to recover.  That whether defendant had supported children
   or not, had nothing to do with the present issue.....if he had failed to
   do so the children could proceed against him under such an agreement.

   2nd That if the jury believed the defendant had a claim or lien upon the 
   note, then he was entitled to retain it until his claim was paid, or the 
   amount of it was tendered to him, and if this had not been done, the
   plaintiff was not entitled to recover.

   The Court gave in charge 1st request but refused the 2nd.

   The jury found for the plaintiff and the defendant moved for a new trial on
   the grounds:
   1st That the verdict was contrary to the evidence.
   2nd That the verdict was contrary to the charge of the Court.
   3rd That the Court erred in refusing to charge as requested by defendant.

   After argument the court granted a new trial on the grounds:
   1st That the verdit was against the charge of the Court and
   2nd That the Court erred in refusing to charge as requested by defendant's
   counsel, to which decision granting a new trial, plaintiff excepted.  
   Strozier and Smith for plaintiff in error. 

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   Jesse Nelms was the son of Rev. Curtis Nelms and his wife, Mary Faircloth
   Nelms.  Caleb Faircloth was the brother of Mary Faircloth Nelms.  Caleb
   Faircloth, Jr. and Mary Faircloth Nelms were both children of Caleb
   Faircloth, Sr.

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