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X>
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205 Bay Street,
Savannah, ; ; .Georgia.
April 30th. 1809.—tf
THE GEORGIA MARBLE WORKS
A"
Moituniciits, Slabs, Tombs, &o.,
finished in the best style, .and at LOWER PRICES than
tho same work cau bo done with Northern Marblo. Our
Marble is equal to the BEST AMERICAN.
Dealers can bo supplied with BLOCKS and 9LA&6 of
kuy dimensions.
For any information or designs address
J. A. BISANER. Agent,
Goorgia Marblo Works, Jasper, Pickens 00., Go.
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tiOTTO N COMMISSION MERCHANTS,
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ianett. sepll-tf
THE UNRIVALED
mm <» «» rmd jmm: jw. jmxl *3 ix
Still at liis iVltctpi
m
IP. HOLLIS
RESPECTFULLY informs bin pronlpt-puyi:
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pared to serve them in tho
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lor wont 1011 m air. uunu «.
Boat Office, will rrteet with prompt attonUon. nframf
VALENTINE ZIMMER, Agent
FOB
ZIMMER k CO.’S
FRAGRANT VERMIFUGE CONFECf(6l»S.
Tho Moot FlMiant »nd Effootlve Worm Destroyer Ever
Discovered.
r7lMMER’8 VERMIFUGE CONFECTIONS have, by
jfj their pleasant and.delightful flavor and effectiveness,
Superceded almost entirely the old rfausoous vermifuge.—
Children will take them with delight and without tho
■lightest suspicion of taking Worm Confections. ,
They aro warranted not to contain calom'-l or mercury
i% any form, or any other poisonous substance. They
atea purely venotiblo preparation and not capable of do
ing the ■lightest iipury,.oyon to tho most tender infant.
For sale by nil Driitfgtsts. may28*>
VOLUME XXVU
DECISIONS OF THE SCPRKMK (DOBItT OF
GEORGIA.
BULIVKliED At ATLANTA, fiAtUIIDAY, AUOtJHT 21.
Reportod exproHsly for the Constitution, by N. j. itam-
lnond, Supreme Court Reporter.
Tho Court delivered tho following opinioiiR,
i;i cukcb urgured heretofore'
Alfred Shorter, pliiinlllT in error vs. Jacob L. Cobb, de-
lendant In error. Action on a noto given for u Hlave.
From Randolph.
BnmvN, C. J. 1. Tho Stnte.R Intelv comi>oKing
the Confederate Government, Bet ciHlde tlio C011-
Btitution of tho United HtiUbh, dnd dcehirod it
no longer obligatory upon them; and adopted
another coiiKtitutiou and government, to which
they required all their officers to Rwear allegi
ance. They rojeoted the Hag of tho United
States, and adopted ono of their own in its
Btead. They sundered tho Union, whFli wrb
in fact destroyed, ho far as it could bo done by
force, and ho remained, as long as they were
able by their armies ill tho Held, to maintain
and defend tho constitution and government set
up by them. Tho destruction ol tho Union
would have been permanent, but for the success
of tho armies of tho United .States; which broke
tho power of tho government of the Confeder
ate Staten, and restored it by force.
2. Had tho seceding States been successful
m'ujht would have compelled tho recognition of
the viijht of their cause; mid tlittso who wore
legally declared rebels and traitors on account
of their failure, would, on account of their suc
cess, have been distinguished as patriots and
heroes.
3. When the armies of tho Confederate Gov
ernment surrendered* and its power was crush
ed, the people df the seceding States became a
conquered people, subject to the fate of the con
quered; and the government of tho United
Stdtbs, as it existed during the war, became the
conqueror; with all tho rights and powers of the
conqueror over the conquered. And the seced
ing States as tho conquered, had no right, with
out tho consent of tho conqueror, to return to
and restore tho Union, which they had repudi
ated, and claim the protection of tho flag, and
the guarantees of the Constitution, which they
had solemnly renounced and thrown oft'. If the
commeriilg Slates at tho end of the war, had re
fused to restore the Union on any terms, or to
have any farther connection or association, with
the seceding States, the latter would have had
no right to demand its restoiation: or to claim
the further protection of the Constitution upon
which the rejected Union was based.
4: It was the prerogative of the conquering
power to dictate the terms upon which the con
quered States should be restored to their posi
tion in the Union; with the rights under the
Constitution which they enjoyed before they re
nounced them bySsecGHoion; and the conquered
States had no appeal from the decision, and no
alternative but submission to the terms dictated.
5. At the close of the wrtr the President of
the United States, in a solemn proclamation,
dated 17th of June, 1855, declared that the re
bellion “ has in its revolutionary progress de
prived the people of tho State’ of Georgia of
nil civil ii'trcnimvnt." And the Congress of the
United States by an act passed 2nd of March”
18(J7, declared that “ no legal Stale tfnvevnments,
then existed in the rebel States, of which Geor
gia was one; and that it was necessary that peace
and good order should be enforced in said
States; (by the military, power of the Uuited
State's,) until loyal and llcpublican State gov
ernments “can be legally established.” Said act
also declared any civil government which may
exist in said States, provisional only, “and in
all respects subject to the paramount authority
of the United States, at any time to abolish,
modify, control, or suspend the same.”
(>. Before any State government, to be formed
. under said act of Congress, is to be operative
and valid, the requirement of the act is, that
'the new Constitution “shall have been submited
to Congress for examination mid approval, and
Congress shall lirtve approved tho same.” If
Congress failed to approve it upon examination
it was inoperative and of no effect till so ap-
I proved.
7. Congress disapproved the Constitution sub
mitted by the Convention of Georgia, called in
obedience to tho requirement of said act, and
amended it by striking out certain parts of it,
which the Legislature of the State, which has
uo authority to make or amend a Constitution,
was required by Congress to sanction. The
present Constitution, undi/r which we now live,
and under which this Court is organized, is not,
therefore, the Constitution formed by the peo
ple of Georgia, but the Constitution as amended
and upprov'd by the Congress of the United
States, by virtue of their authority, as the con
quering power, to dictate ft form of government
to the .erintiuered.
8. The ablest writers on Constitutional law
admit that the 10th section of the 1st article of
the Constitution of the United States, which de
clares that no State shall pass any law impairing
the obligation of contracts, restrains the action
of tlio States only, and does not limit the power
of Congress to pass laws impairing such obliga
tions.
9. T^lie rights of creditors in the conquered
States were no morc.oncrcd, and no more entitled
to protection at tlici hands of Congress, in the
formation of tho new State governments under
said provision of the Constitution of the United
States, than the rights of the slaveholder (many
of whom w re Union men to the last,) in his
property, were entitled to protection tinder the
samo Constitution.
And if the State df (Georgia had the power
under the dictation, and with the sanction of
Congress, to insert in her Constitution a pro
vision destroying the rights of the loyal slave
holder in his slave, without compensation, she
had the saiile priwer, under the samo dictation
and sanction, to destroy the property which the
creditor had in his bonds, mortgages and prom
issory notes. The one was no more legally sa
cred than tho other, and had no higher consti
tutional guarantee for its protection.
.10. Iu forming a Constitution as tho basis of
the new Htiite government, which was inopera
tive till approved by Congress, tho Convention
had power, with the approval of Congress, to
deny to the Courts of tjiis State, created by such
Constitution, all jurisdiction to enfbrce the col
lection of debts contracted prior to a particular
date, or debts contracted during the war, or
debts of a particular class; which, in the opin
ion of Congress, should not be enforced in the
Courts established under its supervision, as part
of said new State government.
11. T?he Constitution formed by the Conven
tion of.-, this State, and submitted for the exam
ination and approval of Congress, denied to all
Courts under its jurisdiction to try or determine
any suit against any resident of this State upon
any contract or agreement mado or implied; or
upon any contract made in renewal of riny .debt
existing pribr to the first .dtiy of June, I860.—
To this general denial of jurisdiction, as to all
debts existing prior to first of June, 1865, there
were seven classes of exception. The seventh
was in these words:
7. “ In all other cases in which the General
Assembly shall bv law give to said Courts juris
diction: Provided, That no Court or officer
shall have nor shall tho General Assembly give
jurisdiction or authority to try or give judgment
on or enforce any debt tho consideration of
which was a slave or slaves or the biro thereof."
Congress upon examination struck out the whole
of this section relating to the denial of jurisdic
tion; except tho said proviso to said seventh ex
ception; and retained said proviso as part of the
Constitution. Thus tlio provision now under
consideration, retains its position in the Consti
tution, with tlio marked and particular sanction
and approval rtf Congress.
12. If the State of Georgia, in tho formation
of her New Government under the dictation and
approval of the Congress representing the Con
queror, had th? power to abolish slavery and
destroy all property in slaves, without any com
pensation whatever; and in so doing did not
violate tl>o rights guaranteed by the Constitution
to the slaveholder, which is now generally ac-
qnioSed iu, and universally acted upon; said
State also had power under the siune dictation
and suporvisio'ri, £0 destroy nil property iu debts
contracted far slaves or hire of slaves, emanoi-
pated in the hands of ^urdiasers; and to deny
to the Courts crca’od by the Constitution of the
now State government jurisdiction to enforco
any such contract. If the rights of the slave
holder in the ono case, or the obligation ot the
contract for the price or hire of slaves in tho
other, have been impaired, violated, or destroy
ed, it was not the act df (he States, because co
erced, and not voluntary. But it was the act of
the government of the Uuited States, exeroisiug
its power *£ts a conqnererj in forming govern
ments in conquered States whofref power is not
limited by any such restraints as to obligations
of this character; os are imposed by the 10th
section of the first article of the Constitution of
the United States, upon Sta’fes, whose relations
to the Union have never b’Gon disturbed.
Judgment affirmed. .
McOay, J. — Concurred ui the judgment but
LAGRANGE, GA., FRIDAY MORNING, SEPTEMBER 3, 1869.
(NUMBER 36.
Four Squares....
Five Squares
Hix Rquaros
Quarter Column.
0 0U' 960(1180
8 00, 13 150 10 00
in 00 17 00 21 00
n 00 20 00 26 00
14 601 23 00, 28 00
15 00 25 60 30 00
24 60! 40 60 1 60 00
33 00 60 60 05 00
uHhi
t 9 00
17 60
26 00
iii 60
87 00
41 60
45 00
70 00
iToir.
t 16“ 00
28 00
84 00
42 00
49 00
66 Q0
fjO 00
95 on
126 00
One Column 40 60 66 60 76 00 105 00 160 (JO
"f’f nuhual—For a Country printing office to do wpfk ^ e f era giving his reason till he writes out his
U Wltb tko dcatae.-i dlspotoh as doea the 133,515.
Wanker. J. Dissenting. —I dissent from that
judgment of the Court in this ease for tho reft-
HOUR rtlftted ill White vs. Hart and Davis.
A. Hood, E. N. Broyles, for plaintiff in ctror.
Herbert Fielder, for defendant in error.
William White, Hr., Biff, in error, vt. John R. Hurt. Prin
cipal, and W. D. Davis, Security, Defendants in error.
Action on a note given for a Hlave, from Chattooga.
Brown, C. J.—The judgment in tho ease of
Alfred Shorter, vs. Jacob L. Cobb is applicable
inihiscftse. Frrim the rensUnh therein given,
the judgment of tho Court below is affirmed.
Judgment affirmed.
McOay concurred in tho judgment, but defers
giving his reasons until ho writes out his opin
ion.
Warner, J. Dissenting.-At the time the contract
was made between the contracting parties in this
case (to-wit) on the 9ih duy of February, 1859,-
niavos were held and recognized by the laws of
this State As proper!j/, and constituted A legal and
valid consideration fol that contract, and the ex
isting laws of tho State at that time, irtiposed a
legal obligation upon the maker of the note to
perform that contract in accordance with its
terms and stipulations. The 10th section of
the first article of the Constitution of the United
States declares, “ No State shall pasft any*, law
impairing the obligation of contracts." The
seventh paragrA^h of the seventeenth section of
tho fifth article of tho Constitution of this State
declares, “ That no Coi.rt, or officer, shall have
nor shall the General Assembly give, jurisdiction
or authority, to try or give judgment tin, or en
force any debt, tho consideration of which was
a slave dr slaves, or the hire thereof. ” The
Constitution of this State is tho fundamental
law thereof still, it is a law of the State, and when
it destroys, or impairs, the obligation of past
contracts) valid by the existing laws of the hind
prior Id its adoption, it is ns cleArly within the
prohibition of the Constitution of tho United
States as any other law of the State. If no State
cau pass any law impairing the obligation of
contracts, 00 State can pass any law destroy
ing the obligation of contracts. This clause of
tho Constitution of this State, not only impairs
but destroys the obligation of the contract,
as the same existed under the lAwa of tho
State at till? llnic the contrAdt was made,
by denying all remedy to one of the contract
ing parties for the enforcement of that obli
gation under tho laws which existed, and
created that obligation at the time the contract
was made, and to that extent, is a palpable vio
lation of the Constitution of tho United States,
and is therefore null and void, The loss of
slave property by emancipation, should fall upon
him who was the owner of that property, at the
time of the emancipation thereof—unless it
shall be held and decided, that slaves Were
not property under the laws of this State at the
time the contract was made and constituted no
valuable consideration therefor in taw to support it.
This portion of the Constitution being void, it
does not defeat or take away the jurisdiction of
the Superior Courts “in all other civil cases" as
expressly conferred bV the third section of the
fifth article of the Constitution of 1808.
W. Akin, E. N. Broyles, A. It. Wright, F. A.
Kirby for plff. in error.
T. W. Alexander, Harvey & Scott, for deft’s
B. F. Hanloman, plaintiff in error, vs, Jno. Dawncr, de
fendant iu error, llomontead, from Oglethorpe.
McCay, J. —1. Homestead and exemption
laws when mode in gfitid faith, trt sdciirb to the
family of insolvent debtors a reasonable means
of subsistence, from the debtors property, do
en, though retroactive, fall within the pro
hibition of article 10, section 1st, of tho Consti
tution of the United Stales, declaring that no
State shall pass any law impairing tho obliga
tion ot a contract.
2. Tho Constitution of the United States
does not prohibit a State from divesting a vested
right, except when that right is vested by vir
tue of and under a contract of the parties.
3. A creditor under an ordinary contract re
quires no vested right in the property of his
debtor, and it is within the power of a State to
declare which of the claimants, against an in
solvent debtor, a stranger or liis wife and family,
who by law have a legal right to a support from
him, shall have preference!
4. The condition of this State in tho forma
tion and adoption of the Constitution of 1868
was anomalous, and it was competent tor the
convention and the people with the express con
sent of the United States 10 adopt as a part of
the Constitution, the article therein providing
for a homestead, of any other provision design
ed to adjust the evils And inequalities produced
by the ravages of the war, and ihc emancipation
of tho slaves; such provisions stand upon the
footing of a compact'between tho State and the
United States, at the close of the war, in adjust
ment of the inequalities produced between in
dividuals by the settlement imposed Uptfii the
people by the United StUtes;
The Constitution of 1868, was made for a peo
ple withdut civil government, anil no Court estab
lished by that Constitution, can take upon itself
a jurisdiction therein denied to it by assuming
a jurisdiction belonging to some Court of the
civil government destroyed by the revolution.—
If tho new Constitution fails td Carry over
to the new organization such jurisdiction
tion as is necessary to enforce a legal contract
it is a fdilurei not in the power of the judiciary
to remedy. Tho evil, if it be one, is political,
and rests with that power wherein is deposited
the sovereignty of the State.
The homestead provision of the Constitution
of 1S08, is retroactive, and implies to judgments,
executions, and decrees fdunded on debts con
tracted before its Adaption, even though reduced
to judgment before that time, and is without ex
ception, save as therein provided.
The exceptions in said provision aro also retro
active, and cover debts of the excepted character
whenever contracted.
Each of the exceptions is to be read in con
nection with tho words “judgment, execution
or decree," ftlid with siffili other words as are
necessary to complete th8 sense; so that before
such of said exceptions is to Bo lirideTsiddd, the
words “judgment, execution or decree," found
ed on a debt contracted for tho purchase money,
etc.
Brown, C. J., concurred as follows:—1. The
same propositions which are announced in the
case _f Shorter vs. Cobb, as to tho denial of ju
risdiction to tho Courts of this State, to enforco
debts for slaves or the hire thereof, are equally
true an 1 applicable to that part qf the new State
Constitution which secures toertch family a home
stead declares that no Court or ministerial officer
shall ever have jurisdiction or authority to enforce
any judgment; decree or execution against the
property to set apart, except for taxes
etc., as therein excepied. This denial of juris
diction applies as well to judgments, decrees and
execution rendered prior, as subsequent to tho
adoption of^aid Constitution.
2. Atriidw the general wreck of fortunes and
destruction of lights, caused by the war, the
State, by her Couveutidii called as required by
Congress, to form a new Strite government, had
the right to propose this measure to tho conquer
ing government, which had the power to approve
and sanction it, as a means of equalizing losses
to some extent, and of retaining and inviting
population by securing to etich family a homo,
free frrtm old liens, which were expected by both
debtor and creditor, to have been satisfied by
property which was swept away by the deluge
of destruction which reduced an opulent and
proud people to poverty and drove them to tho
verge of despair.
3. Iu this state of things, the homestead meas
ure was a necessity, aud its adoption was dictat
ed by sound public policy, to save a largo class
of intelligent, patriotic citizens and their fami
lies from despondency, by placing it in their
power again to Become useful members of socie
ty, ail'd by houest toil and the exerciso df fru
gality and economy to maintain a competency,
if not to acquire, oven in a greater degree, the
comforts of life.
4. Sound public policy required tlm adoption
of »hin measure as part of the terms upon
which the State was to be roadmited to her
rights in the Union, to prevent monopolies, and
the reductio’rf’riTa large majority of her popula
tion to a couditlpfi rtf tenantcy aud vassalage.
While rights aii&^property of every 1 other descrip
tion had been KmI or destroyed by the war, to
' i 'qineuts, mortgages, etc., in
avers and money lenders,
f that hud been insured by
. fhat was too sacred to be
made «rt Arrdifgeffients,
if Congress in readjusting the
status of the State,-'to prevent the sale by the
Sheriff of the vast extent of territory in the State
covered by these old leins, at a time when there
was vety little iiffmey in the Stale with which
to pay debts oY Mf purchase property, would
’ - J sacrifice of the lands of the
irifFs hammer, aud their pur-
dthy persons and companies
tmilt dp' a landed aristocracy
trolling and more exacting
eve* tested under the old
__e Convention had a right to
\ and Congress had a right to
.nction a Constitution which
>r6vCntod this great public wrong. In the plen
itude of itH power over tho conquered Slate,
Congress did so; and ii acted justly and wisely
srt doing.
5. That part of tho Coustituti n of this tfmto
which denies to tho Courts jurisdiction to enforce
m>y judgment, execution, ole., ag mst the home
stead does not violate the tenth action of the
first article of tho Constitution of the United
Htates, as the said Htato constitution was formed
itndci* the dictation and control of Coiigless, us
the representative of the completing government
and is the act of Congress, because it derives its
validity from tho sanction of Congress, and not
from the free choice or consent of tho State;
and it matters not whether tin* part of the
State Constitution now under consideration was
lictated by Congress or proposed by the Conven
tion and accepted and approved hy Congress,
the legal effect, is the seme, as the whole instru
ment was invalid And of no force till it was ap*
proved by Congress, whose power is net limited
by siiid section of tho Constitution of the United
States.
6. It is not tho business of tho Courts to in
quire whether the homestead is larger than was
actually necessary. That was a question for
the consideration of the Convention which pro
posed tho measure, and for the decision of the
Congress which approved and ratified it.
7. The word incumbrances in tho 1st section
of tho 7th article of the Constitution of this
State is not to be construed iu its broad legal
sense, and to embrace all judgments, decrees,
mortgages, and executions. I’3 Hay that uo
court or ministerial officer in this State shall
ever have jurisdiction or authority to enforce any
judgment, decree or execution against said
property to set apart an a homestead; except
that they may enforce all “incumbrances there
on," which meansuny and all judgments decrees
and executions which may at 'any time exist
against tho samo, is to say that tho Convention
and the Congress, were guilty of^; absurdity
of denying jurisdiction in all Riid^pmeK by the
body of the act, and restoring it lTytho proviso
or exception; which is contrary to all true rides
of construction.
8. We are to construe this part of the Consti
tution iti connection with the whole instrument,
when w j aro attempting to ascertain wluit the
law-givers meant. Taking the whole togo her
as proposed by the Convention, all jurisdiction
was denied to the Courts to enforce any judg
ment, execution or decree rendered upon any
contract niade prioi to the 1st of June, 1865, ex
cept in certain excepted cases. Ndw, it seems
quite clear after this doniill df Jurisdiction, that
they . id not intend by the use of the word in
cumbrances, in the section now under consider-
tion, td restore the jurisdiction in all cases where
it might authorize the sale of the hdulestead:
the protection of wliicli was one df the special
objects of their labor and care.
Warner, J., Dissenting. —-'Che first section of
the seventh article of the Constitution of this
State, declares that “each head ol a family, or
guardian or trustee of a family of minor chil
dren, shall bo entitled to a homestead of realty
to the value of two thousand dollars in specie, and
personal property to the value of one thousand
dollars in specie, both to be vftliied at the time
they are set apart. And no Court or ministerial
officer in this State, shall ever have jurisdiction
or authority,Jto enforce any judgment, decree, or
execution against said property so set apart, in
eluding such improvements us may bo made
thereon from time to time, except for taxes,
money borrowed and expended in tlio improve
ment df the homestead, or for the purchase
money of the same, and for labor done thereon,
or material furnished therefor, or removal of cn-
umbrances thereon."
Although the foregoing profisioil cf tho Con
stitution does not, in express terms, include con
tracts made prior to its adoption; still the words
employed are broad enough to include judg
ments obtained on contracts made before that
time. All remedy is denied for the enforcement
of “any judgment" by denying jurisdiction to
the Courts. If it was ini ended that this provis
ion of the Constitution, should have a retroactive
operation, ami apply to past contracts, then, it is
exposl facto in its character and is violative ot the
fundamental principles of the social compact, as
was held and decided by tins Court, in the case
of Wilder vs. tmnipkin, 4th Geo. ltepts. 208,
and also is in violation of the fuudauleutrti prin
ciples declared by the first, fifth, and twenty-
sixth sections of the first article of the Constitu
tion of 1868, this provision of the Constitution,
takes property of tho valtie of three thousand
dollars in specie, which was subject to the pay
ment of the debt of tho creditors at the time
the contract was made under the then existing
laws of the State, and which, in honesty, and fail-
dealing, justly belonged to him, aud without his
consent, transfers it to the debtor. When we tako
into consideration the gross and flagrant injus
tice which will Be done By malting the general
words bi* tiie Constitution embrace past contracts,
we ought, as a Court, in all decency, to presume
that it was not intended by ti.e framers thereof
to have a retrospective operation, bui only appli
cable to such judgments us might be obtained
on con tracts made after its adoption. But it it
was intended to embrace judgments on contracts
made prior to its adoption, then this provision
of the Shite Constitution is iu violation of the
10th section of the first article of tho Constitu
tion of the United States, which declares that,
“No State shall pass any law impairing the
obligation of contracts." Although tho Consti
tution of a State is its fundamental law, still it
is a law of the State, and if any of its provisions
impair or destroy the obligation of contracts, it
is as much within the prohibition ot the Con
stitution of tho Uuited States, as any other law
of the State, and to that extent is null and void.
The first section of the 7th article of the Con
stitution of the State of Georgia, in my judg
ment, not ouly impairs the obligation ot the
contracts made prior to its adop ion, but iu all
cases where the debtor’s property does not ex
ceed in value the sum of three thousand dollars
in specie, it destroys that obligation by the denial
to one of the contracting parties all remedy for
its enforcement under the laws, wlijph existed at
the time the contract was made, and is therefore, a
palpable violation of the Constitution ot the Uni
ted States which is the supremo law of the land
—and consequently, is null anil void. This
clause being void does not theretore defeat .or
take away the jurisdiction of the Superior
Courts “in all other civil cases” as expressly con
ferred by the third section of the fifth article of
the Cdnstitution rtf 18(?8 .
TrtrtmBs and Dubose, for in error.
Wm. Reese, for defendant n^Wor.
L. G. Chambliss. Plaintiff iu Error, vs. O. C. Phillips. De
fendant in Error. Homestead from Monroe.
McOay, J.— 1. A homestead is subject to an
execution founded upon a debt contracted for
the purchase money, and ihe fact that tho debt
has been transferred to a third person does not
change thftt liability.
2. Although ft judgment Be dormant under
the statute, aud has, therefore, lost its lien, as a
judgment, it is still a subsisting debt, and the
judgment may be revived by scire facias or by
suit. ,
3. The acts limiting tho time within which
judgments may be revived, were suspended by
the acts suspending the statute of limitations,Jo-
wit: from tho 30ili Novomber, 1861, 10 tlio 21st
July, 1868, when civil government was prac
tically restored in this State.
4. A creditor, though his claim may be one
of the exceptions provided for in the homestead
act, cannot set it up to prevent tho laying ott of
the homestead. Other conditions having been
fulfilled, the homestead ought to be set off. leav
ing to the creditor his right to go on under the
exceptions at his discretion.
5. A mortgage given by the debtor, is not one
of the exceptions provided by the Constitution,
to which the homestead, for his family, lsliftble.
Judgment reversed. ,
Brown, C. J., concurred as follows:—1. inis
Court lias rid jurisdiction to enfoYcean execu-
tio’ii against the homestea « which was issued
from a judgmout to foreclose a mortgage before
the adoptirtn rtf the new Constitution.
2. Tiie homestead is subject to the payment of
the piirchase money, whether contracted before
or since tho Constitnticm was adopted; and if
tho judgment for the purchase money is dor
mant, but not brtrred by the Statute of Limita
tions, the homestead is still bouud for its satis
faction, if it is revived within the period allowed
by the statute. , . _ , .
3. The execution on the judgment for the
E ure hose money in this case, bore date 22 Novem-
er, 1856, and had no entr^ upon it by any officer
authorized to execute arid return the sairie till the
27th February, 1869. It, therefor:-, became dor
mant on the 22d day of November, 1863.
4. Where a judgment becomes dormant the
Statute of Limitations begins to run againstft,
arid if proceedings are not commenced to revive
it within three ^ears from that date it is barred.
5. tii this erfae tho Statute of Limitations was
suspended at the time the judgriientbecame dor
mant; and it riever began* to run against the
plaintiffs in the judgment under the various acts
of the Legislature of this State, and of the’ Con
vention of 1865, till civil government was restor
ed. This was done 21st July, 1868, when tho
Legislature of Georgia ratified the amend-
incuts made by Congress to ihe State Constitu
tion, und adopted the J lib Constitutional Amend
ment.
Warner, J., Dissenting.- I dissent from the
judgment of the Court in reversing tlio judg
ment of court below. First: Because Chambliss
is not entitled lb ft homestead in the land an
against his creditors whose debts were contract
ed prior to the passage of tho homestead act,
for the rouHous stated in the case of Hardeman
vs. Dormer. Second: Bucuuse the judgment
lion of Phelps for tho purchase money of the
land, as well as his mortgage lien thereon, cre
ated an incumbrance upon the land, which
Chambliss is bound to diseburgo before lie is
entitled to his homesteud, under the act, for the
reasons stated in the case ol Kelly vs. Stephens
A Connell, exr’s., etc.
Calmness & Peeples, and T. B. Cabaniss, for
plaintifl in error.
1. L. Pinckurd, for defendant in error.
Adam Kelly, plaintiff lu error, vs. Linton Stephens et at.,
defendant* iu error. Ho men to ad. From Hurt.
Warner, J. -When it appeared from the re
cord that, in the year 1859, one Harrison had a [
judgment against Kelly, ami was about to levy
on and sell the land now iu controversy, when |
Kelly applied to Thomas W. Thomas, who lodned 1
him the money to relieve the land from sale, and |
took his note, secured by mortgage, which was af
terward assigned to James Thomas, the plaintiff's
intestate, the lien of which it is now sought to I
enforce by the sale of the land. The defendant, j
Kelly, claims a homestead in the land as against j
the plaintiff’s mortgage Hell. If eld: That the j
del 'udant is not entitled to claim a homestead 1
iu the land. First: Because the homestead act
is unconstitutional and void, as against the de
fendant’s prior contracts. Second: If the home
stead act was constitutional as to past contracts,
the plaintiff's mortgage created an “encum
brance" unou the land, which the defendant
was bound to discharge, before he is entitled to
his homestead under that act. The term “ en
cumbrances," As used iu the Constitution of .
1868, was there used iii the legal sense of that j
word, and should receive its obvious legal inter- j
pretutiun by tho courts, iu tho construction !
thereof.
Judgment affirmed.
Brown, C. J., concurred as follows: 1. The
first section of the seventh article of tho now
Constitution of this State is retroactive, as well
as prospective, aud denies jurisdiction to tho
Court to enforce any judgment, decree or execu
tion heretofore or hereafter rendered against the
homestead, except as therein excepted.
2. Tho exceptions are also retroactive, as well
as prospective, and the Courts have j risdiction
to Cnidrce a judgmout rendered upon a debt
contracted prior to the adoption of the Consti
tution, for money lent, to remove an encum
brance from the land uow claimed as a home
stead.
McCay, J., concurs, for this reason only:—An
execution founded on a debt contracted for the
purpose of paying a judgment about to sell the
laud, is within tho exceptions to the Constitu
tional provision, securing to the family of a
dobtor a homestead; it is an execution founded
on a debt contracted for tho removal of an en
cumbrance, and comes within the express ex
ception of this act.
J. H. Skeltc'n, E. P. Edwards, for plaintiff in
ericr.
A. T. Akerman, for defendants in error.
Wm. B. Berry, vh. Montgomery & Wost Point Railroad
Company. Action on tbo oa»o, from Troup.
McCay, J.—1. A suit may be brought by pe
tition aud process, iu the usual way, by a citi
zen of Georgia, against the Montgomery and
West Point Railroad Company, even though
the cause of tho action originated iu Alabama.
2. A11 action for tiie value of a slave hired by
the plaintiff to defendant, and charged to have
been killed, by the negligence of defendants’
servants, is for a debt, the consideration of which
was a slave, and its nature is not changed by call
ing it an action on the case for damages.
Judgment affirmed.
Brown, C. J., Concurring.— 1. Where a Rail
road Company hired a slave, who was killed
while iu its employment, and a suit was brought 1
by the owner for ihe recovery ot the valoe of the (
slave, tho case was properly dismissed by the 1
Court under tho new Constitution, for waut of <
jurisdiction.
2. The word debt as used iu the section of the
State Constitution which denies jurisdiction to
the Court, to “enforce any debt, the considera
tion of which was a slave, or slaves, or the hire
thereof,” includes a demand for the money value
ol a slave in a case of this character, as well as
a demand for liis value under a contract of pur
chase
Warner, J., dissenting.—I dissent from the
judgment of tho Court in this case for the reas
ons stated in White v.<. Hart A Davis. Besides,
iu my judgment it is a strained construction of
the Constitution to embrace within its terms an
action for negligently causing the death cf a
slave while in the employment of the defeu laut.
B. H. Hill, B. II. Bighain, for plaintiff iu error.
A. W. Hammond A Sou, for defendant iu error.
Obcdiab Arnold r«. Ezekiel Trice. Bill for specific per
formance, from Baldwin.
McCay, J.—1. To authorize a Court of equity
to decree a specific performance of a parol con
tract, for the side of land, it must appear that
tho acts of past perform tuce were done under
aud iu consequence of the contract.
2. Gross inadequacy of consideration is a good
reason why a Court of equity will not decree
the specific performance, of a parol contract,
for the sale of lands.
3. When the consideration of a parol con
tract, for the sale of laud, was a slave, and there
is no other equity save the delivery of the con
sideration, the Courts of this State have, uuder
article 17th section 1st of tho Constitution, no
jurisdiction to enforce it by decreeing a specific
performance.
Judgment reversed.
Brown, C. J*., concurred as follows:—1. Where
a slave was exchuuged for a tract of laud and
possession delivered, but 110 written agreement
entered into, aud uo title executed; aud the
slave left with General Sherman's army, ft few
days after the trade; and the purchaser of tho J,
land tiled liis bill for specific performance, t i
compel tho other party to execute titles to the
laud, iu consideration of such exchange for
said slave, Held: That the ccfrirts under tho new
.State Constitution will neither entertain the bill
nor grant the relief.
Warner, J., dissenting ns follows:—The jury
having found a verdict for the complainant in
this case, I see no good legal reason why it should
bo set aside. Arnold made the trade with a full
knowledge of the facts as to the then present as
well as the probable future status of the slave,
and took the risk, aud should uow bo content to
abide the result. In the absence oi fraud, Courts
do not interfere with tho contracts of parties, or
relieve them from the consequences of their own
folly, but will require them to perform them in
good laith, as I think the jury have done in this
ease. In my judgment, the Court below lmd ju
risdiction of tho case.
McKinley, Konnon A Konnon, for plaintiff in
error.
L L. Harris, L. H. Briscoe, (by tho Reporter,)
for defendant in error.
Martiu Dooley vs. J. P. Isbell. Claim caao, from Whit-
McCay, J.—When, on the trial of a claim, it
appearod that the levy was made on the 9lh No
vember, 1869, on ail execution issued 21st No
vember, 1861, and the claimant showed title
from tho defendant in execution, aud possession
more than four years before tlio date of tho levy,
aud there was no evidence that claimant had no
tice at the timo of the purchase of the existence
of thejudginont. Held, That tho land was dis
charged from’ the lien of the judgment, and the
verdict of the jury, finding the land not subject,
will not be disturbed.
Judgment affirmed.
Brown, J., concurred.
^Warner, J., dissenting.—I dissent from the
pdgmeut of the court in this case, first, Because
the defendant in tho judgment (Forsyth) is not
entitled to a homestead in the land as against tho
plaintiff’s judgment, which is dated 29th Octo
ber, 1861, for the reason stated iu tho case of
Hardeman vs. Dowrier. Second: Because Ishell,
who purchased the land from Forsyth in March,
1863, has no legal estate in the laud which en
titled him to a homestead th'ereou, as against
the plaintfiTR judgment lieu thereon, which was
oreated and attached thereto whilst Forsyth
was ^he owner thereof. In no view of this home
stead question can a judgment debtor be allowed
10 be divided out his estate, and eftch purchaser
thereof be entitled to a homestead in each
tract conveyed by him, as well the judgment
debtor himslf to, have a homestead in that por
tion of his laud not conveyed, so as to absorb
his entire estate by the multiplicity of homesteads
arid thrift defeat altogether the claims of his judg
ment creditors. The pertinent'iuquiry is, how
many homesteads can a judgment debtor have al
lowed olit of his estate, against which no judg
ment can be enforced?
D. A. Walker and W. K. Moore, for plaintiff
Atlanta Advertisements.
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JOBBERS AND DEALERS IN
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Well known as a thorough analytical aud manufacturing Chemist.
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IRON, NAILS, STEEL,
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August 20-34-3s-3m
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COMMISSION MERCHANT,
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HOUSE of the Georgia Loan and Trust.*
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COTTON, TOBACCO, GRAIN, FI4UR,
aixi all olher arlio’-s of MERCHANDISE, consigned for
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GENERAL AUCTION, EVERY FRIDAY.
’, Dry Good#
onsigned.
CHASTAIN A FOX,
WHOLELALE AND DETAIL
- iYJETxr mm.
DEALERS,
No. 4 Granite Block, Broad Street,
Atlanta, Georgia.
We are Belling all our goc
offer special inducements t
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N. B.—'We are sole Agents for the sale of CONCORD
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. August 21
A large lot of
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Freight added,
CH.tlRS IN GEORGIA,
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August 20-34—ia-3m
W
P; H. SNOOK & CO.,
WHOLESALE AND RETAIL DEALERS IN
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! Agents wanted throughout the State, who will bo paid
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LaGrange, Georgia:
E. D. PITMAN, Medical Examiner.
ATLANTA MARBLE WORKS I
WM. GR.YY, Prop’r, S. n. OATMAN, Ag’t,
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octifl-tf
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References for State of Georgia t
John H. James, Atlanta,
J. H. DeVotie, D. D., Columbus,
J. G. Westmoreland, M. D.,'Atlanta;
J. E. Dent, Esq., Planter, Newnan,
Maj, J. L. Calhoun, Newnan.
L. M. Smith, D. D.. Oxford. Ga.
Hon. Wier Boyd, Dahlonega, Ge.
I8AAO S. BOYD, General Agent,
mayM-Vt'o ■ Wwnan, Georgia..
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ay Morehenta .nppUod with TINWARE «t ro.enn.hte
prtoee. I* 01 -"
