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THE DAILY SUN. Nr* A tlrrriirrm m It always /omul on Nirot Pagt ; Local and Business Notion on Fburth Pago. Chtage of Oar Iwharlpllor Price. We ask attention to our new terms of subscription in tbe first column on first rat ■logic Copier of Iht Boa For Bale at Ike Craatori DULY * Cento WBPU.Y » Oak Wbdbzbdat Homnxo 8*maniiB27 CITY AFFAIRS. Major Me calla'r Blatcmcat. We bare in oar Retail Dry Quods Store tbe most superb and elegant stock of ladies’ Dress Goods, Laces, Embroi deries, Hosiery and general assorted UmOoaio seer before offered by us, tagre solicit inspection of oas stock fr*u all. ■ept26-hn Ciusmbw, Botwtob * Co. Window Shades, lace Curtains, Lam- berquin Materials, Damasks, lte]», Rugs, Table and Floor Oil Cloths, Hats, Mat tings, Wall Paper and Upholstery Goods, in large nineties, at the Carpet Store of sept36-lm Chxmiikei.in, Boynton k Co. At A OMMktkb Monilag. Mr.it Beago has a big sale of lots in fidlvood, thin morning, commencing at 10 o'clock. i Hacks oarry (Ml tbe crowd free, and a free lunch given on the ground, at 12. ■A. k Handsome Stock of Dress Goods, at c, ) Loan, Dona lass k Dsuris’, sep20-U 42 Whitehall Street. Markaktes* Sin Cam pa a x, Co., No. a. See notice of a called meeting of this Company, to-morrow night WaataAl Wanted I Two first-class Boot Makers, at Charles C. Hughes' Boot Manufactory, No. 42 Pryor street None but first-elans need apply. * CMiaarclal Items Our friends, Cooper Sc Lane, we learn, delivered and sold to a neighboring BUte market 80 barrels of tho popular A. H. Stephens brand of floor yesterday, for which they are sole agents in onr city- all in an hoar’s time. Pull line of White Embroidered Flannels, at Lows, Doi'ouss k Dallas', sept20-tf 42 Whitehall Street Grady says something about uniting Bourbon and Rye in a General Coin-on tion, and haring no New Departure in it. See his advertisement Spiced Pigs' Feet, in Vinegar, a' Stoker k Bill's, 2 Granite Block. 2 We publish, this morning, a statement of the money received and paid ont by Maj. Me Cal In on account of tbe State Road—all by order of Foster Blodgett In doing this, we remark that he is the principal man in bringing chargee againat delinquents and embezzlers, und has given moat of, the information on which to base the prosecutions which have been commenced. Since the committee has undertaken to make settlements, and bring np bal ances sa far as possible ; and CoL Farrow to commence action against defaulters and ^delinquents, Mc- Colla is the tint one (and the only one, so far as we know) who has been called on for a statement, and the only one whom Col. F. has proceeded against. Why he, above all others, should be singled ont, is strange to na. It looks like an effort to break tbe moral force of bis testimony, and to crush out all inves tigation. We have no right to allege that such was the object, and do not even milt, an insinuation to that effect; but if those who arc engaged in making in vestigations and prosecutions liad even known him to be guilty of wrong doing, it seems to us they would have done the Stato some real service if they had need him, ss far as possible, to gather up evidenoe against others, and allowed him to be the last man called on for a settlement. Whether innocent or guilty, the de mand made upon bim, and his arrest, Bcems to us to have been a mistake—cal culated to do barm to tbe cause of tbe people, instead of doing any good. These are our views, given to the public for what they aro worth. He has come'forward with liis state ment. Will the first movement be to get his assistance in bringing others to do tbe same thing, or in picking flaws in his exhibit? MAJOR McCALLA’S STATEMRNT. Charlaa P. McCalls la Arcouatwlth tka Waaiarn St Atlantia Railroad. April 7 To Rally k Wobb, Ms; uoo no Roney) MO 00 Nor.Car.ll.lt. Sale Gold Rill A. A C. II. It Lou. Cin. k Lex.... Ilarton A Albany KauM City, Ht. Jim. tO. U Terr* llauto Ac lnd'a ChoMtpeako Ac Ohio 30 00 1 42 372 70 Two OoaYcnIvMt Hoaiei for Salt. Col. 8. R. Spencer offers, nt a liargain, two Houses on Peters street, between l'ryor and Whitehall. Cull on bim nt bis office, iu Grant's building. ■gk. Full Lino of Balbriggan Hosiery, at Lowx, Dodolass k Dallas', septfiff tf 42 Whitehall Street. real of Carp*Birring. We saw yesterday in Mr. J. A. Tuttle's ■tap, oa Hunter street, tho timbers of the frame-work of a hip-roofed boose— all first made and jointed, rendy to be banled out to the building place, where they will be put up without making any alteration in a single joint. This said to be 4 difficult thing, but Mr. Tuttle is of it Pina (leak la Arrlva To-day. We learn that seventeen fluo horses will arrive at Wootteu k Taylor's Bta- blee, on Alabama Street, from Nashville —all superior animals, and tome extra fine. _ * The Mends and acquaintances of 0. It and Wm. R. Haalciter, and of Henry Gnllatt, aro respectfully invited to attend the Funeral of Ait an u a Lochia, dangli ter of C. It and Ann E. Hanleiter, from the reaidencc of Henry Gnllatt, No. 100 Calhoun street, This Afternoon at 4 o'clock. Vaall Vldll Visit That Loom, which so many liavo in quired about, bus arrived and is at work, and it is verily a wonder. For rapidity <tf motion, beauty of fabric and variety of work done, it is unequalled by any loom in the world. Every lady is invited to call and see it work, in Toon's Priut- ityLijniwo, Broad etri-et, near the Bridge. Iteadia. Robson k Caiapore, ere sole agents for tbe sale of the Machine. It will weave twenty-four inches in a min ate worked by band. By applying steam pawar, it Brill weave five hundred yards ip ten hours. It is the wonder of the *»■ , Tka Markata. Trade yesterday was splendid. Large quantities of goods were shipped to va rious points on all the railroads. There is no particular change in prices. Com is improving slowly end the market has jumped from 18) to 15 Jr The longest and finest stocks of mask ere1 are bring received, and selling very cheap,indeed. riOto' quotations will fsrolrii farther -E- ■ . ( Totymselelavaamb. We Uotie# the most complimentary and flattering articles in the Savannah papeta about the Templeton troupe, which is now playing in that city. He has added several ladies und gentlumdu to hie com pany since he left here. At his matinees he admits orphans and imijgent children fine of charge, if attended. We aro glad to know that he is doing well. Fox, Cocput, Chandler A Judge Lawrence returned from Balti more yesterday. They report a highly interesting tune .on their visit. jNtpenko . Gin. lUm * Dayton l’ndinnh ft Gulf.... rouwtcol* k Lotila.. lud. lilt mi. k Wort.. Hurling ton k Mo... Ht. Louis, V. AcT. II. Indiana Vs. k Tenn. A!r- Llue (Ticket)..., llllwAukiu k Ht I’a'l Char. Col. k Aug... U. H. Mail Lins.... Char. Col. ft Aug... Itlchmuudft Dan.... Ht. I* k I. M..unCii llliuoiit Cuutral Chi. k Nor. Wentr'n Htyali'a Ageney Lake Shore k Mich. WeHturu lUilruad.. Pacific lUilroad Halt. Ht’ni P’okt Go. Moot In A Moiltgm'y Kentucky Centnil.. Penney! van la R. 11... Krio Railway Or. Hu. Mnll Route.. So. Ca. Railrimil. ... 1* K Ciu. k Ht. lriittlM Ya. ft Ten. Air-Liue Mem. ft Ht. L. l'ackt Urayivillo Agency W. H* Dig^banly.G T Cur- Mobile ft Ohio C. C.C. ft lud... Jack. I'ou. ft Mob'lo Michigan Central.. Tenn. Coal Cuuipuy Ga. Air-Line Central lUilruad,... Gr. LUm. Baltimore HU R4 72 67 0 23 4 4H 13 75 10 7fl 7 00 7 00 13 25 7 52 2,181 93 135 21 235 00 31 73 493 HI 149 HO 24 00 12 42 11H 00 275 G J 13 33 249 32 200 43 moons all round the edged where he had been biting it Fitzgibbons wan offering consolation in the waj of cako and ap ple*, bat Jon sen was inconsolable.— Nothing but a fow minor canes were on band. ED BURNETT, a sharp Hprightlj, boy, with a good /ace, had been having Home boyish diapute with another boy, when a hungry police man pounced down on him. The Mayor gave him a good fatherly tulk and tined him the costs, which were aftewards re voked upon promise to be a good boy in future. NELSON BYRD wa« oqc of a gang of black birds who, about the first of February last had en gaged a brother bird to haul some trees for replanting, and agreed to pay him a dollar for it The trees were promptly delivered, but Nelson ref lined to pay. The drayman worried along with him all through the long, weary and hot summer, trying to get his dollar, and ut last was forced to litigation. The court ordered Nelwon to pay the dollar and the costH of the Huit. GEORGE TURNER wan a little nigger about the size of a piece of chalk. He proponed to exerciae his newly acquired civil rights, by put ting it into practical execution. He drew his knife on a little white boy and the little boy’s brother took it up. It was just such a fuss a« happens every duy where thero are children and the Court fined him only one dollar and costs. FRANK CLEMMON8 ought to have had more sense than he exhibited the day previous, when he jumped on the Macon train while in mo tion. Some folks can’t take a hint. Costs. A DOMESTIC BRAWL. Ed. Collins and his wife, Mollie, got up a quarrel. Ed., in an effort to dem oust rate to her that he ruled his own roost, came very near alarming the en tire neighborhood. She was heard to say : Wo have token a long Journey, Ed., Happily together; Up end down life's rugged mouutoiu, In all kind* cf weather. Wu have seen along tho way Light and ithadowa day by day. This Molle tied Ed. somewhat; he “ soft- eued on her,” but too late to keep out of the lock-up, and when they both insisted before tho Court, that they were only playing, Lowry thought thut the fuu was worth the costs in the case. THE SMITH FAMILY was represented this morning by Aaron. He slapped a small nigger into the mid dle of next week for some “sans” the lit tle fellow gave him, for which lib was fined one dollar and costs—tho Court be lieving, privately, that more «lap8 and less law iu such coses would bo better, ALEXANDER HENDERSON was the big brother of George - ilouder- kou, whom Aaron had slapped over, and he very naturally put in his mouth when Aaron proposed to serve him tho same way. While quarreling, au officer march- id the whole crowd off to the calaboose. Thin closed tho melancholy business. Lowry looked around ut Jouscn, and the attending policeman, with ft languid eye, and began exhorting them to renewed exertions in bringing in good cases. He advised discretion and valor, and wound up pathetically: Ik* true to thy love ami thy couutry Thu ihmtoril win* uover a priae; But tho eariirat are ever tho victora, Ami ho on Jiwtico relic*. account to be examined into and diacub- *ed with more than ordinary interest: 1. The passed bill and receipt of Col. Farrow, as well at the order on the Treas urer of tin road to pay tho same, are da ted 27th December last, while the account itself is dated 1st July last, and ia for ser vices rendered from lit January to 1st July, of this year. Col. Farrow says ho did not notice the incorrect dates till quite recently, afto the foregoing paper* had been called for by Mr. Kawson, and received from Mr. Harris, tho Treasurer, and on this point Mr. Lawson gives the following certifi cate: certify that I called on I. P. Iiarrlaaud roceivod tan«ud toil for Col. Farrow and handed it to him ited. I did not notice the date of the ptUMt-d bill until attention waa called to it by Col. Farrow. K. E. lUwrioN." Col. Farrow says the whole account and passed bill—all the papers in the case were made out about the 1st July last, aud he does not know how or why the auditor and Superintendent dated their papers in December lost, unless it was because a number of bills approved by them dur ing tliis year were dated in December lost, prior to the lease, and that this one was also thus dated by them on account of this habit—so he tells us verbally. % While this bill, thus made out and re ceipted, was lyiDg in the bunds of Mr. Harris, Col. Farrow drew from Maj. Mc Calla the snm of $1,000 as part payment for the same, as the following receipts will show: Received of Charlc* P. McCelU, seven hundred doitorH, on account for W. ft A. It. R., thin 29tb July, 1871. Mo P. ViBWVi Att’y W. ft A. R. R. Correct copy of receipt in office. Atlanta, Oa., Ang. 17, '71. Rcc'd from Chan. P. McCalla, O. B. K. W. ft A. B. R., throe hundred dollar* on ecc't of draft for fl.800.0U. H. P. Fabbow, $100.00. Att'y W. ft A. R. B. Correct copy of receipt In office. Frcedmon'a Bureau *82 21* B. F. Blodgett 408 00* A. L. Hariris 716 22* W. 11. Barbery, Agt I I 18-11,134 22 *Restitullou money. April 7 By Draft, U. Robcrtoou, Tr I May 29 Draft, W. J. Taylor, John W. Wilson.." C. P. McCalla...." Office Kxpeiif 200 00 410 00 160 48 400 00 H. Mt Brule, salary. Draw Bark TtokeU A. ft 0. R. It. bill.. II. P. Farrow, ou ape dralt U. II. Brown.At fee T. Pinckney’* draft J. J. Blake, order. A. 700 oo 26 00 16 6H Sept. 26 C. P. McCalla.»alary 300 00 15 00 04 20 116 09 20 73 32 11 410 00- 9.421 04 Col. Farrow's I»»y «■ Attorney of the Weatrrn anil Atlantic ltullioml. Col. Horny 1'. Farrow, the Attorney General, is receiving a salary of $2,000 per annum. Ho also has a written con tract with the Governor, by which his services are retained as Attorney of the Western and Atlantic Railroad, at a sala ry of $3,000 per annum. This contract was entered into in 1808, aud has tinned up to the present time. Lutoly there has been some investiga tion into bis account for a half year’s Hidary from tho 1st January to 1st July of this year, as Attorney of the Road, and the CimtlitulUm of yesterday contained a letter from him to Maj. Hargrove, includ ing the papers involved iu the accouut, giving explun&tions, etc. The following is a correct copy of the accouut against tho Road : Atlanta, July 1, 1*: Wkmtkhn and Atlantic Railuoad, Da. To Henry P. Farrow, Attorney at law: To tterviiva rendered from January 1 to June 1871, under contra* t with Superintendent Wen and Atlantic Railroad, approved by the Governor priori “ Appi Cash on hand....$ 1,762 26 The above etotomeut showing a balance of $1.76-2 26 in my hands to the credit of the Western ft At lantic Railroad, comprises all Receipts and 'Asbume incuts made by ute since the Road was I* ased were made by order of Foster Blodgett, Superlute a dent, K. ft O. E. CHA«. P. MeCALLA, 0. B. K. Atlanta, Oa., Sept. 26, 1871. MAYOR'S COURT. The mists of morn were rising fkst. When through the tail, rank weeds there passed A youth, who swung above his heed A rag, ou which the passer road— "Excelsior." Tito youth idlmhkl to iu tho above liui* i. supposed to be the Mayor ad interim, enthused at tbe prosprot of another big haul, similar to the one of the day be fore. Ho remeuilterod well tho dull aca. eon of last week, aud up to Monday morn ing be began to fear that lie would have to make a report to tho Mayor on bis re turn similar to that the servant made to his Lord, who gave him only one talent and ho went and buried it. But Mon day's crop “hope” him np, and, there fore, “ExcelsiorI” OU, ho felt glorious, ami didn’t care for anything. "Teke dc w® that ng!" his mother yrllnl. •**lea tnow how bed jour h«edls bwellcd;" But still aloft the rag he swung, Aud dashing om hi loudly aung- " Excelsior!" But s eold, gloomy look greeted him from Jottsen as lie entered the antecham ber preparatory to ascending tho throne of justice. That look was ominous.— Jottsen luul evidently Itocn weeping, for his eyes showed it, and he held in his hand a piece of ginger cake, with haJf- tbi* lease of said road $ 1,800 00 “ KH BLOIXIKTT, Siipvriutcudent. To this was also attached a'memoran dum of approval by Gov. Bullock as follows: Thin tthould be paid by I. P. Harris, Treasurer, order front the fuuds ut his hauds. U AU accounts agaiust tho Road, after being made out and approved as altove, are handed to tho auditor, who investi gates them. If approved, tho auditor makes out what is called a “passed bill." Tho following is the bill iu this case. WKtrrKBN AND ATLANTIC RaILBOAD, To U. 1*. Farrow, Dr. For Amount of bill, herewith Ho— $1,806, Atum a. December 27, 1870. Paused for Eighteen Hundred Dollars. N. F. Hotchkiss, Auditor. Received Pay mrnt: U. P. Fahbow, Attorney, Wt idcrn aud Atlantic Rilroad. The bill boiug thus allowed and receip ted, tho Superintendent gave tho follow ing order on tho Treasurer : $1,800. Atlanta, Ga.. December 27,1870. Isaac P. Harris, Treasurer Western aud Atlantic Railroad: l*ay to U. P. Farrow, or bearer, Eighleeu Hundred Dollar*, to pay Voucher No. — Foots a Blooc.ktt, Sii|*ertnlrinient. N. P. Uotoiuih.4. Auditor. On the lawk of the paper containing tho foregoing copies, is tho following in dorsement: We, the Committee, certify that the within copy of count and paasod hill, ia a correct copy of 1X>1. Farrow's paaaed but s^ainat the W. and A. R. R. CoL Fttrrow, i E. E. Rawnon i liis letter to Muj. Har- We publish these papers with the fore going explanations, «s part of the his tory of the times. Col. Farrow explains, his note to Maj. Hargrove, that being Attorney General docs not restrict him as a lawyer from serving any client—the Stato Road not excepted; and that he has never roceivod a dollar contrary to law. ^ SUPREME COURT DECISIONS September, 2G, 1871. H. Kurwisck vs. The Mayor and Council ;jof the city of Atlanta—Certiorari— Sabbath Laws. LOCHRANE, C. J. Where, by the petition for certiorari, it appeared that tho petitioner had been convicted by the Mayor and Council of tlto city of Atlanta, for a violation of the city ordinance, agaiust dealers keeping open doors on Sunday, and the proof showed that six or sevon persons had gone into the store house of petitioner on Sunday, by a back door, and that he was a dealer in liquors, cigars, etc., and the Court below refused to sanction the petition for certiorari: Held, That this was not error in the Court. Tho Christian Sabbath is a civil institution, older than our Government and is recognized as a day of rest by our Constitution, aud tho regulation of its ob- uiico as a civil institution, is in the power of tho Legislature, as much as any laws having for their object the preserva tion of public morals; and it is within the right of the city of Atlanta to punish the keeping open of doors by dealers gener ally, within tho limits of the city, upon Sunday, for tho purpose of preventing tho violation of the Stato laws, as well as preserving tho public respect for tbe laws themselves. Judgment affirmed. H. Jackson & Bro. for plaintiff. Jane and Moses Frank and L. A. Guild vs. Longstrcct, Sedgwick & Co.— Usury LOCHRANE, C. J. Where the payee of a note indorses it after maturity, and suit is brought by the indorsee, against the makers aud indors er, and a plea by tho makers sets up usury, and tho Judge held such plea by the makers did not affect the liability of the indorser upon his contract of indorse ment after the maturity of the paper: Held, That this was not error. The contract of indorsement was a new and distinct contract, not affected by the usury between tho payee and makers, in the hands of the indonee with out notice, and the indorser, in a suit against him, jby the indorsee, cannot set up his plea of tho ille gality of the act iu takiug usury, to de feat a recovery against him as indorser. Held, again: Where a note made to be negotiated at a chartered bank was not negotiated, but held by the payee at its maturity, who took from the indorser a written warver of demand and notice, ami after its maturity, it was endorsed by the payee upon such paper, under our law,aud indorsement after maturity upon suit by the indorsee, is in discharge of the failure to prove demand and notice, and it was not error to refuse a non-suit upon that ground. Held, again: That in order to render verbal evidence of the contents of a no tice required by our law, even when such notice is out of the jurisdiction of the Court, it is first necessary to give notice to the party, or his attorney, to produce it Held, again: When the evidence shows that the maker of a note borrowed $24 00 from the payee and gave three notes of $1126 each, ‘and paid two of the notes, und the payee indorsed tho last note to a third party; Held: That in tho hauds of such third party the noto is only void as to the amount of usury therein, and it is not competent for makers of the note to set up. the usury paid upon the other notes to the holder and payee thereof, iu their defense to this note. Held, again: That tho amount due on the third note,by the makers,is $8 00, with interest, after deducting any payments made thereon by them. The verdict was, therefore, in excess of the amount duo and should have been, under the facts of this case, $134 18, with interest, from the 15th of January, 1868, aud we direct that the verdict conform to this amount, or else that a new trial l>e granted to Jane and Moses Frank. , Held, again: Under our Code, juries may find according to the equities of the cast' by their verdict, and that the ver dict against Guild stand affirmed. Judgment affirmed, with instructions. M. Arnold & R. J. Cowart for plain tiffs. II illy or A Bro. for defendants. J. D. Cameron vs. Warren Aiken. Re lief act of 1870. . LOCH KANE, C. J ferrec of Urn note, was not called upon to go further than to show a compliance with the act of 1870, by having paid the legal taxes dno thereon, while he held the note, or otherwise shown no tax due thereon. McKay, J., concurring. Warner, J., dissenting. L. J. Glenn Sc Son for plaintiff; Hill Sc Candler for defendant. L. J. Hill burn vs. George S. Black. Re lief act of 1870. LOCHRANE, C. J. Where the court below rendered judg ment on a noto made before Juno 1st, 1865, overruling a motion to dismiss the suit for non-compliance with tho act of October 13, 1870: Held, That the court committed error. Judgment reversed. Dabney Sc Culberson for plaintiff; Broyles for defendant. Lee L. James vs. Ed. R. Elliott. In eq uity—Recou pmen t. LOCHitANE, C. J. Where, upon the trial of a bill filed to restrain the collection of notes given for the purchase mouey of lands, both cases, the common law suit and the bill being tried together, it was charged that by the misrepresentation and fraud of the ven dor as to the lnmndary of the land, the vendee made the purchase, and by such fraud he had been misled into the ex pense of preparation for making brick, for which purpose he bought the land, and which was known to the vendor at the time of the sale; aud the court re jected the evidence offered by complain ant, the vendee, to show his damages, resulting from the alleged fraud, and also as to the quantity of land. Held that this ruling by the Court under onr law, fraud with injury gives a right ol action and he may recoup the damages whatever the jury may allow in an action against him for purchase money, the rule being confined to the actual damages suffered, the fraud being for the jury to determine: Held again, it was error to rule out the evidence in relation to the quantity of the land. Ui*lur section 2600 of the Code, an apportionment of tho price may be made when the purchase is per acre. Where a deficiency amounting to fraud is proven, it is for the jury to determine, and not for the Court; the whole case ought to have been submitted to the jury and let them weigh it tinder the legal rules concerning the evidence. Judgment reversed. R. Baugh for plaintiff; Glenu & Son for defandant. Lydia A. Smith, vs. T. C. Willingham et al—Tenants—new trial. LOCHRANE C. J. Where upon a motion for a new trial, the Court granted the motion on the ground that the father of one of the parties, a warrantor, who luul been re jected as a witness upon the trial, having in the court room near tho jury and within the hearing of the jury, bilked to another person who had been a witness for tho other side, about the case aud said among other things, that if he had been permitted to give liis evidence, ho could have told a'l about the transac tion and such act was unknown to the counsel or the parties until after the verdict: Held that iu view of the necessity of preserving tho purity of jury trials, when the Court below presiding at tho trial, whose opportunity of knowing tho effect of such influences upon the jury is much better than ours, lias granted a new trial under section 3267 of tho Code, wc will not interfere with his discrcatiou. Judgment affirmed. T. I*. Westmorland, A. W. Hammond & Bou for plaintiff; Hill and Candler, 1*. i>. Steward for defendant. R. B. Bullock, Gov., vs. J. W. Hancock, et al.—Recognizance. LOCHRANE, C. J. Where a pardon of the Governor was pleaded by the sureties, in discharge of their bond for tho appearance of thoi principal, ami the recital of facts in tb pardon shows that it was not applied for by tho accused, who was out of tlic State, and the plea failed to show his delivery to him, or acceptance by him, aud the Court sustained the demurrer to tho plea. Held: Under tho facts, that this was not error. Assuming that under the Constitution of 1868 the Governor may exereiso the pardoning power before con viction, this exercise is based upon a confession of guilt by the accused, and before such pardon takes effect, it must bo applied for by the accused, and in the plea of pardon, by his sureties, the facts set up must show its acceptance by their principal, or evidence of liis application for pardon, or of its delivery to him and a pardon granted without tho application of tho accused, and no evidence of his acceptance of it, is of no affect. Judgment affirmed. Peck & Boon vs? Conley—Relief Act of 1870. McKAY, J. Section 5 of the act of the 13th of Oc tober, 1870, which authorizes the defend ant in fi. fa. to deny under oath tho plain tiff’s affidavit that the taxes have been paid, and providing that the issue thus made shall be returned and tried as an other affidavit of illegality, stands upon the same footing as the first and second sections of tho act, and is not unconstitu tional. Judgment reversed. WARNER. J., dissents. W. A. Patrick, et al., vs. Scott, Boudu- rant and Adm’r—Certiorari. McKAY, J. Where suit was brought in Justice’s Court for an amount over $50, and a iummons of garnishment issued, requir ing the garnishee to appear and answer on the day fixed for the trial of the original suit, aud the garnishee failed to appear on that day, and judgment was eutered against him on the next day: Held, that by sec. 3228 of the Code, that no judgment until a term subse quent to that at which ho was required to answer, it was the duty of tlieJiu- tice to have continued the proceedings by a formal entry ou liis docket, to a subse quent day not less remote than the time required by law between the service of the defendant in the original suit and the time of trial. Where & certiorari had been sanctioned and no notice in writing was given ten days before the sitting of the Court to which tho same shall be returnable, aud it is in writing agreed between the par ties that tho decision Court upon the points made in the certiorari shall l>e submitted and determined as in other juid while that judgment stands unrevers ed, it is error to dismiss the traverse on tho ground that an affidavit was not made of the truth of the traverse. The Court will presume tliat tho affidavit was pre sented at the time. Judgme nt reversed. R. Arnold, H. Van Epps, for plaintiff. Hill Sc Candler for defendant. A. H. Colquitt vs. Mercer Sc de Graffen- rcid. Issuable pleas. McKAY, J. Tho act of 1863 authorizing attorneys to make oath to pleas setting up issuable defences to suits founded on contracts, does not alter the Code, requiring nleas to the jurisdiction to be pleaded in per son and sworn to by tho defendant. A plea to the jurisdiction may be filed at any time before a defence to the mer its, aud if a plea to the jurisdiction tiled at the first term is stricken subsequently, the defendant may, if he has filed no plea to tho merits, still file his plea to the jurisdiction. Judgmeut affirmed. C. F. Acres for plaintiff; L. J. Winn for defendant. Asbury H. Barnes vs. The Stato. In cestuous fornication. McKAY, J. The offence of incestuous fornication is not a joint offence under section 4459, aud oue person may be indicted and found guilty thereof. Where, on a trial for incestuous, forni cation with a sister, the sister waa in troduced as a witness, and she denied that she ever had sued the defendant in her name, and the court permitted evi dence tliat the suit was brought, but re fused to permit the declaration to be read to the jury: Held, This was no error, as tho con tents of the paper was not material to the issue, which was simply whether the suit had been brought. Where a written request was made by defendant's counsel for the court to charge the jury, which request covered the whole case, and the judge iu his charge failed to follow the language of the request, but charged the law prop erly and tho defendant was found guilty Held, That section 3664 of the Code which provides that a new trial may be granted on the refusal of the judge to give a pertinent legal charge in the lan guage requested, when the charge so re quested is submitted in writing, is not mandatory but permissive only, and when tho Judge has in fact charged the law correctly on the points covered by tho request and upon the whole case, and has refused a new trial, this Court will not, for tliat reason only, grant a new triul. No precise rule cun bo laid down bow for the evidence of an accomplice must be corroborated, but a defendant cannot complain of a Judge on this point who tolls the jury that tho evidence of tho other witness or corroborating circum stances must bo sufficient to satisfy them beyond a reasonable doubt of tlie guilt of* tho prisoner. While we are not entirely satisfied with the verdict in this case, still, as the jury or tho judges of the credibility of the witnesses, und as the Court below lias refused a new trial, wc do not tbink it our duty to interfere with his discretion, Judgment affirmed. Hill Sc Candler for plaintiff; E. P. How ell for defendant. William C. Sherrcr, Friii., and Williu Shcrror, gam., vs. L. J. Glenn k Bon —Certiorari. WARNER, J. On tlic hearing of the certiorari it dismissed, but on what ground docs not appeal*. On looking into the record it appears that the certiorari was sanctioned on the 5th day of March, 1869. Then is no evidence in the record of any writ ton notice having been given of the sane tionoi tlic writ of certiorari, as required by See. 3987 of the Code, and therefore the certiorari was properly dismissed tliat ground. In Turner vs. Collins, 8 Ga. R. t 252, this Court held that it was tho uni form determination of the Court never to look out of the papers to inquire into any fact, but whatever fact there appears will bo taken to bo true, and if it docs not appear in writing, it docs not exist. The certificate of the Judge to the bill of exceptions is the writ of error to bring tip cases from the Superior Court to this Court, and tho ten days’ notice of the signing and certifying the same has al ways been required to appear on tho roc ord. Tho sanction of a certiorari by the presiding Judge, is tlic writ of error which brings up the case from the Justi ces’ Conit to the Superior Court, and the w ritten notice of such sanction should appear on the record, otherwise it will be presumed not to have been given. Judgment affirmed. Fred A. Williams vs. Adolph G. Mandel. Relief act of 1868 and 1870. WARNER, J. This was an affidavit of illegality filed by the defendant, to the plaintiff’s exe cution, claiming tho benefit of tho relief act of 1868, for losses sustained by the war and on tlie ground that the plaintiff had not filed an affidavit of tlie payment of taxes due on tho debt as required by tho act of 1870. Tlie affidavit did not cases: Hold, That this is a substantial waiver of notice and an agreement that tlie cer tiorari shall be hoard upon its merits. Judgment reversed on the first point and affirmed ou tho second. Hifiyer Sc Bro. for plaintiff. E.P. Howell for defeudaut. E. W. Muuday vs. JolmG. Martin—Cer tiorari from County Court. McKAY, J. Where there wo* a certiorari from the show that the plaintiff was iu auy way connected with the defendant’s loss of property by the war. It also appeared in the record, that the plaintiff resided in New York at the time the judgment was obtained, and lias resided there ever since that time. The Court dismissed the affidavit of illegality, and tho defeu dent excepted: Held that thero was no error in the Court below in dismissing the affidavit of illegality, on the statement of facts by the record. Judgment affirmed. Farrow and Thomas for plaintiff. L. J. Glenn Sc Sou for defendant. Daniel Pittman, vs. Rebecca E. Chisolm, Adm’x, and W. P. Chisolm, adm’r. WARNER, J. This was au action brought against defendants ou a noto indorsed by their intestate. The note was made by R. E. Canton and pay aide to Taylor and Lewis, or bearer, for $413,15, dated Aug. 20, 1861, due Dec. 1st, alter date and in dorsed by defendant#’ intestate in the following words aud figures: “I indorse this noto, liable only in the second in stance, this 10th of March, 1867.” The plaintiff moved tho Court to dismiss the defendants’ plea, which motion tlio Court over ruled anti the plaintiff excepted. When tho plaintiff offered tlie note in evidence, tlie defendants objected thereto on the ground that tho defendants wore liable only in tho second instauco, and there was no evidence that tho plaiutiff bad sold the maker of tho note to insolvency, which objection was sustained by the Court, and tho plaintiff excepted. The plaintiff then offered in evidence tho an swers of Tariiipseed, to prove that tho maker of tlio note was and had l>eeu hope lessly insolvent, since (he fall of tho yeur 1866, which ovidcuco was objected to by defendants and the obj<*ction sustained plaintiff to do an unnecessary and useless act to ascertain the insolvency of the maker of the note, by slicing him, when the fact of his insolvency is notorious and can be established by other competent evidence ? The evidence of the insol vency of tho maker of the note should be confined to the time of the indorsement, so as to exclude any presumption of a want of diligence ou the part of the in dorsee in failing to collect the note from tlie maker. If the note could not have been collected in the first instance, at any time after indorsement by suit against the maker, why go through that unnec essary aud useless ceremony in order to make tho indorser liable in tho second instance ? The evidence offered in this case to prove the insolvency of the maker of the note in 1866, more than four years after the date of the indorsement, was properly ruled out by the Court. Judgment affirmed George S. Rutledge and Benj. J. Hardin vs. R. B. Bullock, Governor. WARNER, J. This was a cose that came before the Court below on an affidavit of illegality to an execution issued on a judgment of forfeited recognizance against defendants at tho March term, 1870, of DeKalb Su perior Court. The main ground of il- egality was, that there was no judge in the Atlanta Circuit, and that the Court was held by Judge Parrott, a Judge of another circuit, who had no legal right or authority to hold the court and render the judgment, under the following agreed state of facts: That Judge Pope, the Judge of tho Atlanta Circuit, resigned on the 3d of January, 1870, and the At lanta Circuit was without any Judge uu- til August, 1870, when Judge Lochrane was appointed to fill the vacancy. That the March term of DeKalb Court of 1870 was held by Judge Parrott, without re quest or invitation of Judge Parrott, but on the request of Gov. Bullock, and that judgment in tho case waa rendered on the 7th of March, 1870, when the court was held by Judge Parrott, the Judge of the Cherokee Circuit, the Atlanta Circuit being without a Judge. Tho Constitution declares that thero shall be a Judge of tho Superior Courts for each judicial circuit, who may act in other circuits when authorized by law. The 232d section of the Code declares the jurisdiction of the Judges of tlie Su perior Courts is coextensive with the limits of this State, but they arc not compelled to alternate unless required by law. Section 233 declares that each of said Judges shall discharge all the duties required of him by the Constitution and the law for the circuit for which he was elected or appointed, although he may hold courts in other circuits and may also exercise other judicial functions for them when permitted by law. That is, the Judge of one circuit may hold courts iu other circuits in the Stato, and may also exercise other judicial functions for other circuits, when permitted by law, as to grant writs of injunction, certiorari and other writs, whenever the resident Judge of the circuit is absent or inter ested, &c., or os provided by section 238. Wo are, therefore, of the opinion that the J udge of one circuit may rightfully hold the court in another and different circuit tliafl that for which he was ap pointed. It is said if the Governor shall fail or refuse to appoint a Judge for the circuit, when n vacancy occurs, he can compel the peo ple of a circuit to have their legal rights determined by auy Judge in the State, whom he may think propor to force upon them. That may be so, but the failure of the Governor to perform his constitu tional duty in making an appointment is one thing for which lie is responsible to the proper tribunal. The legal power and authority of a Judge of one circuit to hold a Court in any other circuit of the State is a different thing. Tho fail ure of the Governor did not divest the Judge of tho Cherokee Circuit of the le gal power and authority to hold the Court iu tho Atlanta Circuit at the time ap pointed by law, of which all parties were bound to take notice. Judgment affirmed. Samuel A. Durand vs. G. W. Craig— Ejectment. WARNER, J. This was an action of ejectment brought by the plaiutiff on the separate demises of S. A. Durand, against the defendant!, to recover the possession of tho North half of a lot of land No. 110, in 18th district, DeKalb county. On the trial of the cose it was admitted that W. M. Al len was the owner of and hod the title to the laud, both parties claiming title through him. The plaintiff read in evi dence a power of attorney executed by Allen to McClain on the 28th April, 1862, authorizing him to sell tho laud, also a deed made by McClain as the attorney, in fact, of Al len, on the 23d January, 1863, to Durand. This deed had but oue witness to it It was admitted that Allen died in the State of Kentucky, ou 5th September, 1862. more than four mouths prior to the mak ing of tlie deed by McClain. Allen was in the Confederate army at the time of his deatlu The lessor of plaintiff claims that he has a perfect title to the land ir respective of the deeds on the ground that he purchased the land of McClain paid for it and took possession thereof before tlie death of Allen. The evidence on this point is that of Durand and is not very full and satisfactory. The newly discovered evidence is not in relation to the payment for tho land, and is not cumulative merely, as there was no evidence offered by tho defendants in relation to the non payment for the land by the plaintiff.— If the detendauts had offered evidence as to the non-payment of purchase money, then the newly discovered evidence would be merely cumulative evidenco.— This evidence might have produoed a different result iu the finding of the jury, as that was a material question in the case. In view of the facts, we cannot see that there was any abuse of the dis cretion vested in the judge in granting a new trial. Judgment affirmed. L. .I. Winn for plaintiff; Hill k Cand ler for defendant lion. A. R. Wright. Jiulgo Wright, of Rome, lias written a letter to n gentleman of this city, that lie will serve the State as attorney in tho prosecution of tho State Road embezzlers, without fee or reward. Perhaps wc may lie mistaken, but wo arc inclined to think there waa not much, if any, need of employing a nnmber of lawyers to help in these prosecutions. Where upon the trial of a suit at coui- gvovo. says this bill, &c., was carried to! niou law, upon a note made before 1st of Mr. L r. Harris, tbe Treasurer, for pay-1 June, 1865, the defendant moved to dis-1 thereupon - , , ... , , , 1 mi** it upon tlie ground that the phuu-. transmitted to the next term of ment, but he did not pay it, and (t w “ , tiff had uoteompliodwith the aetof 1870, perior Conrt, and tbe issue tliei left in his hauds to be paid as soon oa he w |,j c i, was overruled by the Court: " received any funds. I Held, That this was error. Undortho. . . - , . . . . - _ . ... tfevenl circumstance* lima pfuifc-t this | facts ol this cmc, Aiken being the train-1 that traverse should be tried by a jury, | to ascertain that fact. Why require the County Court, under sec. 297 of tlie Code, by the court, out! the plaiutiff excepted, und there was tendered to the Judge of The defendant# were not liable ou this the Superior Court, in vacation, a tray-1 indorsement until the maker of the note erae of tho answer of tho County Court' had beeu sued to insolvency, or some lo- Judge, tho Judge of the Superior Court, gal excuse alleged for nothaviugdoneso. thereupon, directed tho papers to be If the evidence offered hud shown that ■■the 8u-. tho miker of the noto was entirely insol- ■re to Ik* i vent at the time of tlie indorsement, wc tried by a jury: , think that would havo been a good legid Held, That this was a judgment that! excuse for not sueing tlio maker merely BituuiiE Couirr ofGkoroia, / September 26, 1871. ) After delivery of opinions in cases heretofore argued, No, .30, Atlanta Circuit, was taken up —Delilah Venable vs. J. W. Craig—In junction from Fulton. Hillyer k Bro. for plaintiff in etror; R. Baugh, B. H. Thrasher, Collyer k lloyt, contra. Feuding the argument of this cause, the Court adjourned till 10 o’clock a. m. to-morrow. Tlic trial of the Htate Rood Commis- sion—Messrs. U »dwine, Hammock and Rawson—corner off at 10 o’clock this morning.