Newspaper Page Text
t
Vol. L.
MILLEDGEYILLE, GEORGIA, TUESDAY, JULY 6, 1869.
No. 27
|jm:. °RMe <sc soist,
KillI'OIvS AND PliOPIilETORS.
Teruts—>
per -annum, in Advance.
n
loriottei‘a oi
. !;,.itio»tor lettersui
A.'
Mji-
Tit i
Entray
\uVEK t I SING—Per square of ten lines, each
$ J DO, Merchants and others foiall
fljiiitsjver $25, twenty-live per cent. oil.
legal advertising.
ordinary's.—Citatiousfor letters oi ad-
utration .guardianship , &c 51 00
1 ‘ nd notice o go
of dism’n fromadm’a 5 00
itioinor icucjouf disin’nofguard’u 3 gy
v .i for leave £0 sell Land 5 00
vinca to Uebtors and Creditors 3 00
* | k „f Laud,per square, of ten lines 5 00
■! 1, ijt personal, per Sq., ten days 1 50
f rt f?—Each levy ol ten Hues, or less.. 2 50
- ', a ,re sales often lines or less 5 00
■ elector’s sales, per sq, (2 months) 5 00
s —foreclosure of mortgage and oth-
month'.y's, per square 1 00
notices, thirty days 3 00
111U „— Respect, Resolutions by Societies,
Obituaries cite.,exceeding six lines,to be charged
RS transient advertising.
■ s. t ies of Land, by Administrators, Execu-
t ,,'soi (juardiaus, are required by law, to be held
t l, e tirst Tuesday in the month, between the
hours of ten in the forenoon and three in the af-
ra ion, attheCourt-house in the county in which
tae property is situated.
Notice of these sales mustbegiven in a public
gazette 40 days previous to the day of sale.
Notice for the sale of personal property must be
pi yen in like manner 10 days previous to sale day,
Notices to debtors and creditors of an estate
mu=t a.so be published 40 days.
\j it ice that application will be made to the
Court of Ordinary for leave to sell land, must be
published for two months.
Citations for letters of Administration, Guar-
,'hiiniiip, Ac., must bo published30days—fordis-
from Administration, monthly sit months ;
fir dismission from guardianship, 40 days.
j{ lies for foreclosure of Mortgages must be
iiibiisucl hi mtlily for four months•—for establish-
; V[f |,)st papers, for the full spare of three, months—
[l)r i n celling titles from Executors or Adminis-
r.itors, where baud has beeu given by the de
aised. tiie full space of three months. Charge,
*1 UD per square of ten lines for each insertion.
Publications will always be continued accord
t,, these, the legal requirements, unless oth
-rtfise ordered.
Schedule of Macon & Augusta R. R.
Leaves Camalt, daily, at 12.30 P. M.
" Milledgeville 6.30 A.M.
Arrives at Milledgeville 4.20 P.M.
•• Caniak 9.00 A. M .
Passpncersieaving Augusta or Atlanta on Day
Passenge" Train of Georgia Railroad will make
. lose connection at Camakfor intermediatepoints
on the above road, and also for Macon, A: c, Pas-
ssugersleaving Milledgeville at 5.30, A. M.,reach
Atlanta and Augusta same day,and will make
dose connections at either place for principal
Lointsinadjoining States.
E. \V .COLE, Gen’ISnpt.
Aimista, January 7,1868 1 D
SOUTH-WESTERN R. R. CO.
•OFFICE, MACON , GA., March24th, 1668-
Coin mb us Train-
■Dai itf
5.15 A.
Leave Macon ^' m'
Arrive at Columbus 1 UVi- .1'
Leave Columbus ---
Arrive at Macon 6.20 P. M.
TnJaula Train—Daily •
Leave
Macon '
8.00 A.
M.
Arrive
Leave
atEufaula
5.30 P.
M.
Eufaula
7.20 A.
M.
Arrive
at Macou
4.50 P.
M.
Connect
ing ton'h Albany I
'rain at S/n 'Ci
rillc
Leave
Sniithville
.. . 1.46 P.
M.
Arrive
at Albany
3.11 P.
M.
Leave
Albany
9.35 A.
M.
Arrive
at Smithville
11.9(1 A.
M.
Connect;
ing with Furl Gaines
Train at Cuthbcrt.
Leave
Uuthbert
3.57 p.
M.
Arrive
Leave
at Fort Gaines
5.40 P.
M.
Fort Gaines
7.05 A.
M.
Arrive
atCuthbert
9.05 A.
M.
Connecting with Central Railroad and Macon
Sc. Western Railroad Trains at Macon, and Mont
gomery <fc West Point Trains at Columbus.
VIRGIL POWERS,
Engineer & Superintendent.
0
Schedule of the Georgia Railroad.
kN' AN'D AFTER SUNDAY, MARCH 29th
H3', the Passenger Trains on the-Georgia
Railroad will run as follows:
DAY PASSENGER TRAIN.
(Daily, Sundays excepted.)
Leave Augusta at • 4. M-
“ Atlanta at ■■•> 4. “j*
Arrive at Augusta - 3.30 P. M.
“ at Atlanta - 6.1U P.M.
night passenger train.
Leave Augusta at ^ 4 ^ F- "J 1
Atlanta at ***^'um *' vr*
Arrive at Augusta 4.M.
“ Atlauta 4.00 A.M.
HERZELIA PASSENGER TRAIN.
Leave Augusta at .. w'
Berzelia at /.00 A.M.
Arrive at Augusta
'• at Berzelia
Passengers for Milledgeville, Washington and
Athens,Ga.,musttakeDay Passenger Train from
Augusta and Atlanta.
Passengersfor West Point, Montgomery, Sel
ma, Mobile and New Orleans must leave Augusta j
on Night Passenger Train at 3-45 P. M., to niaae
close connections. . • , T
Passengers for Nashville, Corinth, Grand Junc
tion, Memphis. Louisville and St. Louis can take
either train and make close connections.
Jfhrough Tickets and Baggage checkedthrough
to the above places.
Pullman's Palace SleepingCars on all Night
Passenger Trains. .
E . W . COLE, Gen 1 Superint dt.
Augusta,March 86.1868 4 tf
fttLauta SL (Went ffaini
rail road.
[pay Passftig* t Train—Outward.
Leave Atlanta ^-45 A. M.
Arrive at West Point 9 50 p - M
l)ay Passr-iigrr Train Inward.
Leave West Point 1 Jy „
Arrive at Atlanta 6.20 P. M.
Siolit Freight and Passenger—Outward.
Leave Atlanta 4-15 P. M.
Arrive at West Point H.40 P-
Night Freight mid Passenger Train—Inward.
Leave West Point — - 4,20 A. M.
Arrive at Atlanta 11.30 A. M.
/pIlfLIKJd of! SPoIlCcLllLo.
OFFICE SOUTH CAROLINA R. R. CO-, (
Augusta, Ga., March 25, 1668. )
O N AND AFTER SUNDAY, 29th March,
1868, the Mai and Passenger Trains of t his
Road will leave and arrive at through Central
Depot,Georgia Railroad, as follows:
Morning Mail and Passenger 'Train
* 0r Charleston, connecting Train for Columbia,
8outh Carolina, Charlotte Road, and Wilming
ton and Manchester Railroad.
Leave Central Depot at 5.50 A. M-
Arrive atCentral Depot 3.30 P. M.
Night Passenger Accommodation Train
For Charleston, connecting with Train for Co
lombia,and withGreenvilie and Columbia Rail
road :
Leave Central Depot at 3.50 P. M.
Arrive at Central Depot at 7.00 A. M.
H..T. PEAKE,
Geueral Superintendent
decisions
OF THE
S U I’ K E M E COURT OF GEORGIA,
Delivered at Atlanta, June 2d, ’69.
Furnished by N. J. Hammond, Supreme
Court Reporter, Expressly for the
Constitution.
Rich’d VV. White, plaintiff’ in error,
From Chatham, vs. the State of Geor
gia, ex. rel., W. J. Clements, defend
ant.
In said case the Court were unani
mous in reversing the judgment below,
butagreed to do soon different grounds.
The judgment of the full Bench, and
of the majority are given below. The
reason why each of them held his par
ticular views, were staled at great
length by each, but they a re,of course,
subject to any changes which the sev
eral judges may make, in writing out
their opinions, and we cannot give them
now.
McCay delivered the opinion. (By
the whole Court :) W here there was a
t/uo uarraulo, and a demurrer, and, also
an answer denying a material fact,and
a jury summoned to try ihe issue, and
tbg defendant called up the demurrer,
and no objection was made to the hear
ing of it at that, time, and the demurrer
was heard, as a distinct motion, and a
distinct judgment was had thereon be
fore the issue was presented lothe jury
Held, that in the argument on the de
murrer the defendant had the right to
open and conclude.
2. Tire statements of a register of
voters, that he had marked a register
ed person’s name with a “c,” to de
monstrate that he was a colored person,
and had posted ffis lists, for some time,
in a public place, and that no applica
tion had been made to have the said
letter “c” erased, is not evidence that
the person is a colored person,) it not
being shown that the person knows of
the entry, and that it was the subject
of conversation.)
. Although a copy of a paper, prov
en to be beyond the jurisdiction of the
Court, is good secondary evidence of
its contents, yet it must be shown that
the original was duly executed.
4. An application for a life insurance
though signed by the applicant, upon
the back of which was an entry, by the
examining physician, that the appli
cant was a mulatto, is no evidence of
the fact, unless it be proven, that the
person signed the paper, after the en
try on the back was made by the phy
sician, and with the knowledge of the
entry, and with the intent to adopt it,
or that he used the paper after the en
try was made with a knowledge that
such entry was there.
5. The statement by an examining
physician, that he had at a certain time
examined a person, and had then been
of opinion that the person was a mulat
to is not evidence. If the physician is
an expert, he must give his present
opinion, and if not, he must state the
facts on which he bases bis opinion.
6. Whether or not a person is col
ored—that is, has African Mood in his
veins—is matter of opinion, and a wit
ness may give his opinion, if he state
the facts on which it is based. Wheth
er the fact that one has one-eighth of
such blood, be matter of opinion.—
Quere ?
7. One who testifies that he has stud-
ied Ethnology, may give his opinion as
an expert on a question of race.
8. Pedigree, relationship, and race,
may be known by evidence of reputa
tion, among those who know the per
son, where pedigree of race is in ques
tion.
9. By a majority of the Court—War
ner dissenting. Where a quo warranto
was issued charging that a person hold
ing an office, was ineligible whenchos-
en, because of his having in his veins
one-eighth or more of African blood,
and there was a demurrer, to the infor
mation, as well as an answer denying
the fact ; upon which denial there was
an issue, and a trial before a jury.—
Held : That by the Code of Georgia, a
person having one eighth or more of
African blood in fiis veins is not ineli
gible to office in this State ; and it was
error in the Court to over-rule the de
cision, and to’charge the jury, that if
the plaintiff proved the defendant to
have one-eighth or more of African
blood, be was ineligible to office in this
State.
A. W. Stone, Jas Johnson, A. T.
Akerman for plaintiff in error.
T. E. Lloyd, Julian Hartridge, for
defendant in error.
erly D. Parker and the Southwestern (S. H. Mitchell vs. Moses Spear, treas-
Railroed Company, defendants
error. Equity from Randolph.
BROWN, C..J.
J. An injunction will not be granted
for fraud unless the bill sets forth' the
specific acts of fraud upon which it is
sought—a general allegation ot fraud
is insufficient.
2. An injunction will not be granted
to restrain the sale, by defendant of
his railroad stock, and the drawing of
the dividends by him ; on the ground
that complainant holds his covenant of
warranfcry of title to a lot of land, the
title of which is in dispute in an action
of ejectment, when the bill shows that
the Railroad stock and other property
of the defendant is of much greater val
ue than the sum for which he may be
come liable on his warranty, and there
is no charge that he is beyond the ju
risdiction of the Court, or that he is
inso'vent, and no other sufficient equit
able ground is stated in the bill.
3. When the Chancellor, on the bill
being presented to him, ordered that
the defendants show cause, on a day
mentioned, why an injunction should
noL be granted, and that, in the mean
time, the defendants be enjoined, till
the further order of the Court; and on
hearing, the Judge having refused the
injunction. Held : That the tempora
ry injunction expired of its own limita
tion when the injunction was re
fused at the hearing, and that
no vitality could lie given to it
pending the proceedings in this Court,
by bond given by complainant, which
is claimed to operate as a supercedeas of
the judgment refusing the injunction.
Judgment affirmed.
W. A. Hawkins, tor plaintiff’in er
ror.
W est Harris, A. Hood, for defend
ant in error.
urer Mandamus, from Sumter.
McCAY, J.
1. Sections -54S and -550 of the Re
vised Code contemplate that, in assess
ing the county taxes, there shall be a
specific assessment for each of t-hc ob
jects mentioned, and that die fund for
each shall be kept separate by the
treasurer.
2. The Act of 7th of October, 186S,
directing orders to be paid by the coun
ty treasurer, according to their date, is
imperative, but that act does not re
quire that an order shall be paid out of
a fund not set apart for the payment of
debts of that kind.
3. Where there is no direction in a
county order, as to the fund out of
which it shall be paid, and the treasurer
answers that there are older orders on
his book, of the same kind, more than
suffices to exhaust the money in hand,
not specifically assessed for special
purposes, such mandamus will not be
made absolute.
Judgment affirmed.
Hawkins & Burke, for plaintiff’ in
error.
S. H. Hawkins, for defendant in er
ror.
Early • Varner, plaintiff in error, vs.
Benjamin Wooten, defendant in er
ror. Rule, etc., from Randolph.
BROWN, C. J.
1. A Deput} r Sheriff is liable to rule
for failing or refusing to pay over mon
ey collected by him. But he is sub
ject to the control of the Sheriff ; and
if he collects money on a fi. fa., and
pays it over to the Shetiff’whose Dep
uty he is, he is not liable to rule at the
instance of the plaintiff in fi. fa. alter
such payment. In sgcli case the plain
tiff must pursue his remedies against
the Sheriff.
Judgment reversed.
B. S. Worrill, represented by A.
Hood, for plaintiff*in error.
W. D. Kiddoo, for defendant in er
ror.
Jas. Powell, plaintiff in error, vs. Bev-
S. T. Crawford, vs. E. H. and E. Ross.
Motion to dissolve injunction, from
Lee.
McCAY, J.
1. The revocation of an order ap
pointing a Receiver, is a matter which
may be heard and acted upon by the
Judge, on the usual notice in vaca
tion.
2. The extraordinary writs and rem
edies granted by the Chancellor, be
fore a trial, on the merits, ought not to
be granted without caution, and un
less there is immediate danger to the
rights of the complainant, it they be
denied, and if the Court becomes sat
isfied that the danger does not exist, it
is'his duty, on proper notice, to dis
charge them.
3. In this case, the Court did not
err in dissolving the injunnlion, and
vacating the order appointing a Re
ceiver.
4. It is the duly of the Judge, if he
is satisfied there is a bona fide intent to
except to his judgment, so to mould bis
order as that the excepting parly may
have a reasonable lime to file his bill of
exceptions, and obtain a supercedeas be
fore the status of the case can be mate
rially changed.
Judgement reversed.
5. H. Hawkins, for plaintiff in error.
W. A. Hawkins, G. M. Warwick,
for defendant in error.
H. J. Cook, vs. Frank P. Smith, and
D. Smith. Motion to dissolve in
junction from Baker.
McCAY, J.
When a bill was filed against Frank
P. Smith, and D. D. Smith, by a cred
itor of the former, charging a combina
tion between the defendants, to defraud
the creditors of Frank P. and D. D.
Smith, alone answered the bill, and
moved to dissolve the injunction as to
himself.
Held : That it was error in the Court
to hear the motion, until the other de
fendant who was in fact the principal
defendant, bad answered.
Strozier and Smith, by R. Lyon, for
plaimiff’in error.
Vason and Davis and J. J. Hall, for
defendant in error.
Lucinda Taylor, plaintiff iti error, vs.,
Mayor and Council of Amertcus,
defendant in error. Certiorari from
Su rnter.
WARNER, J.
Where a defendant had been sen
tenced by the Mayor and Council of the
City of Americtis to pay a fine of twen
ty dollars and cost, and in default
thereof, to he confined in the Guard
House of said cilv for twenty days, for
disorderly conduct, and a petition for
certiorari was presented to the Judge
of the Superior Court, alleging error in
the proceedings of said Mayor and City
Council on the trial of said defendant,
(to-vvit,) that there was no evidence
that the alleged disorderly conduct was
committed within the corporate limits
of said city', so as to give to the said
Mayor and City Council jurisdiction to
try and punish the defendant thereof,
the Judge refused the application for
certiorari upon the statement of facts
contained in the-position. Held : That
the petition for certiorari made a prima
facie case, which entitled her to have
the alleged error reviewed and correct
ed, and that it was error in refusing the
certiorari prayed for.
Judgment reversed.
N. A. Smith for plaintiff’in error.
Jack Brown by S. H. Hawkins for
defendant in error.
Roe, casual ejector, and James Thomas,
tenant, plaintiff’s in error, vs. Doe,
e\. dent., John Malcoui, ft. at., de
fendants in error. Motion for new
trial, from Sumter.
WARNER, J.
Where, upon the trial of an action of
ejectment for the recovery of a lot of
and, and the mesne profits thereof, the
tenanL offered to prove the increased
value of the lot of land, in consequence
of the improvements made thereon by
the tenant, as a set-off’ to the mesne
profits claimed by the plaintiff; but
the Court refused to allow the tenant
to prove the increased value of the
premises, resulting from the improve
ments made thereon by the tenant, and
restricted him to the actual value of the
improvements pul on the land by him.
Held: That a fair construction of sec
tions 2455 and 3416 of the Code, al
lows the tenant to prove ihe increased
value of the premises resulting from the
improvements made thereon by tenant,
arid to set-off the value thereof in an
action.for mesne profits within the lim
itation imposed by section 3410. The
Justice’s Courtfi.fi. had an entry on
it. “To any lawful officer to execute
and return,” signed by a Justice of the
Reace, but the county of which he was
Justice does not appear but the entry
was made on the28lh of October, 1831,
and the levy on the land was made 29th
October, 1831, by a constable of Lee
county The legal presumption was,
that th of .fa. had been backed by a
Justice of the Peace of Lee countv,
where the levy was made.
Judgment reversed.
BROWN, C. J.—Concurred as fol
lows : ^
I agree with the Judge delivering
the opinion, in the judgment of reversal
for the reason given by him.
I am also of opinion that the -Judge
of the Superior Court should have ruled
out the Justice’s Court fi. fa. on the
trial, on the ground that it issued from
a.Justice’s Court of Morgan county,
and was levied upon land in Lee coun
ty, when it had not been backed by a
Justice of the Peace of said county, so
as to authorize a constable of that coun
ty to make the levy.
While I would make every reasona
ble presumption in favor of a sale under
an old Justice’s Court fi. fa., 1 do not.
think we are justified in presuming
that a Justice of the Peace, who backed
lbe fi.fi. without specifying for what
county he acted, belonged to, or was a
Justice for any particular county.
McCav, J., did not preside in this
case.
'sufficient cause was shown, other than
the abolishment of the Countv Court
on the 2lst‘day of July, 1S6S.
Judgment reversed.
C. T. Goode by 8. H. Hawkins, for
plaintiff in error.
W. A. Hawkins, N. A. Smith, for
defendant in error.
Benj. Green and Phillip West, plain
tiff’s in error, vs. Benj, F. Cock and
John Thompson, administrators.—
Motion for new trial iron) Lee.
WARNER, J.
This Court-will not control the dis
cretion of the Court below in refusing
to grant a new trial in a case wheie no
rule of law has been violated, and
where it appears, from the evidence in
the record, that substantia! justice lias
been done between the parties.
Judgment affirmed.
McCay, J., did not preside in this
case.
Fred. H* West, by the Reporter, for
plaintiff in error.
W. A. Hawkins, R. Lyon, for de
fendant in error.
Romulus Wardlaw vs. Elizabeth Ward-
law, Alimony, Grom Sumter.
McCAY, .1.
1. Where there was motion for ali
mony pending a bill for divorce, and
the defendant in the motion, moved to
continue, showing that a material wit
ness was absent, - without his consent
who lived in the county, and f ad been
subpoenaed, etc., it was error in the
Court to refuse the motion, on the
ground that, the granting of alimonv
was wholly in the discretion of the
Court, and there was no necessii v for
the presence of all the witnesses.
2. The Judge of the Superior Court
should use great caution in granting
alimony, so as not to encourage appli
cations for divorce on light grounds.
Judgment reversed.
Hawkins & Burke, S. H. Hawkins,
for plainliffin error.
J. A. Anslev, C. T. Goode, by N.
A. Smith for defendant in error.
Roe, casual ejector, and B. D. Parker,
was objected to on the ground that it
did not appear to have tieen stamped,
according to law : Held, that the Court
should have submitted the question of
fact (<> the jury, under the evidence
whether the deed had been stamped
or not, as required by law, under the
charge of the Court upon that point.
Held, also, that when the deed, show
ing a settlement between the parlies
was offered in evidence, the Court
should have left the question to the ju
ry as to whether the deed was deliver
ed or not, under the evidence conta : n-
ed in the record, and have charged the
jury as to the law applicable to that
point in the case. When there is evi
dence as to the delivery of a deed, it is
a question of fact for the jury anti not
for the Court to decide upon the fact,
whether there has been a delivery of
the deed.
Held, further, that where an instru
ment is offered in evidence, required
by law to be stamped, and, by the act
of one of the parties, the stamps is pre
vented from being put on the deed, the
party so preventing shall not be held
objecting thereto; but, if the Court
shall be satisfied that there was no in
tention to defraud the Government of
its revenue, the Court may, in such a
ease, allow the proper stamps to be
placed on the instrument, at the tune
of the trial.
Judgment reversed.
J. C. Bower, Fielder & Powell, T.
F. Jones, tor pl’ffs in error.
A. Hood, Richard Sims, for defend
ant in error.
'appears in evidence that the plaintiff’in
ejectment held' the mortgaged premises
under the mortgagor, by deed younger
than the mortgage; and^lhat he was
in Court when the rule absolute of fore
closure was taken, and made no objec
tion to the jndgment of foreclosure, it
is not void as to him ; and he wiH not
be permitted to attack it collaterally
for want of service in action of eject
ment against the purchaserat Sheriff's
sale, of the mortgaged premises.
Judgment reversed.
Hood & Kiddoo, for plainliff in error.
Fielder & Powell, for defendant in
error.
Henry R. S. Long, plainliff in error, vs.
Edward McDonald, defendant in
error. Complaint, from Early.
WARNER, J.
1. W T hen a suit was instituted in the
county of Early, against L. and P., al
ledging that they were partners, L. re
siding in the county of Clark, and a
short time betore the session of the
Court in Early, at which the case was
tried: P. died, the defendant’s counsel
moved to continue the case as to L.,
the alleged surviving partner, upon
the ground that the partnership was
plaintiff’in error, vs., Doe, ex dem. ! denied, and that the survivor L. had
O. P. Foster, administrator, plaintiff’in
error, vs. Henry K. Daniel, defend
ant in error. Motion to set aside
Judgment from Sumter.
WARNER, J.
When a trial was had in the Counlv
Court of Sumter county, and a verdict
rendered for the plaintiff on the 20th
day of July, 1868, and a judgment was
entered thereon on the 22d July, 1868,
and a motion having been made in the
Court below to set aside said verdict
and judgment on the ground, that on
the days the verdict and judgment pur
ports to have been rendered and enter
ed, the County Court was abolished by
the Constitution of 1868, which motion
was allowed by the Court, setting aside
both the verdict and judgment. Held,
that under the Reconstruction Acts ol
Congress, the State of Georgia had
fully complied with the terms thereof;
ratified the fourteenth amendment of
the Constitution of the United Spates,
and assented to the fundamental con
dition imposed on her by the Act of
Congress, passed on the 25th June,
1868; and, therefore, the Constitution
of the Stale of Georgia, as amended by
Congress, took effect, and was prac
tically in operation from the 21st day
or July, 1SG& Held, also, that ail un
finished business in the County Court,
at the time of the abolishment thereof
by the constitution, was transferred to
the Superior Court by the 7th section
of the 11th article of the State Consti
tution, and that it was the duty of the
Superior Court to have ordered a judg
ment to have been enleted on the ver
dict rendered in the County Court on
the 20th July, unless some good and
Jack Brown, el al, defendants in er
ror. Ejectment 1’rom Sumter.
WARNER, J.
Where the lessors of the plaintiff’in
an action of ejeement instituted a suit
for the recovery of a Jot of land num
ber 127, in the 27th district, ol Sumter
county, and upon the trial thereof, the
jury found a verdict for the defendant;
and the Court, upon motion, granted a
new trial, which is assigned as error.
Held, that inasmuch.as the evidence in
the record introduced by the plaintiff
it) the Court below, in support of his
title lothe lot of land sued for (to-wit,)
Ihe copy grant from the State being
tor a different lot, (to-wit,) 107, and
there being no evidence of title shown
in the lessors of the plaintiff which
would entitle them to a verdict for the
premises sued for, (to wit.) lot number
127, the verdict was right under the
relied upon the evidence of P., the de
cedent, to disprove the alleged partner
ship ; hut, in consequence of the sud
den and unexpected death of P., there
had not been lime to procure the evi
dence of L., the other partner, who
lived in the county of Clark to dis
prove the alleged partnership. Held,
that tfie Court erred in overruling the
motion for a continuance upon the
showing made therefor as stated in the
record.
2. When one of two contracting part
ners is dead, the plaintiff cannot be a
witness against the surviving partner
to prove a contract made with the de-
deecased partner.
3. A plea denying the existence of a
partnership is a plea in bar, and altho’
sworn to, is not a dilatory plea, which
is required to be filed at the first term
oi the Court. Judgment, reversed.
J. C. Rutherford, J. E/Bower, L'
evidence offered by the plaintiff’, and
the Court below erred in granting a j J- Glenn, for plaintiff in error,
new trial. j W. D. Kiddoo, for dei’t in error.
Judgment reversed.
McCa}', J., did not preside in this
cause. Hawkins & Burke for plain
tiff in error. N. A. Smith, B. Hill
for defendant in error.
S. H. Hawkins, plaintiff in error, vs.
E. B. Lovless, defendant in e/ror.
Motion to enforce attorney’s lien,
from Webster.
McCOY. J.
The lien of an attorney for fees, on
papers in his hands, and on the judg
ments he has obtained for his client,
does not operate so as to prevent a
bona,fide settlement by the defendant
with the plaintiff in full, provided there
was no uotice to the defendant not to
pay without reserving the fees; and
provided, also, the settlement was not
Alexander & Howell, plaintiff’s in error,
vs. Edmond Glenn et. al. defendant
in fi. fa. ami Sarah Glenn, claimant
Claim case from Early.
BROWN, C. J.
1. The owner of a plantation em
ployed freedemn to cultivate it for part
of the crop, and agreed to furnish pro
visions, but being unable to do so, ap
plied to plaintiff’s to furnish them to
prevent a failure of the crops., stating
that any arrangement they might make
with the freed men to secure the same
upon the growing crop would be satis
factory to her : Held, that it was error
in the Court to refuse to permit plain
tiffs to give these facts in evidence on
the trial.
2. Where the evidence shows that
made with intent to defeat the attorney | it was ffie intention of the parties to
in collecting his tees
Judgment affirmed.
C. T. Goode, S. H, Hawkins, for
plainLiff in error.
M. Branford. W. A. Hawkins, for
defendant in error,
Win. H. Chappell, adm’r, plaintiff’ in
error, vs. Wm. S. Akin, defendant
in error. Equity, from Webster.
WARNER. J.
When a hill was filed against an ex
ecutor by a creditor, praying for an in
junction and the appointment of a
receiver, alledging that the executor
was insolvent, unmarried, extravagant,
engaged in no settled business, and
intending soon to remove to Honduras,
and was badly managing his own bus
iness, as well as that of his testatrix,
that he said he would sell the property of
his testatrix, realize the m°ney, and
leave without paying any of the debts
of the estate. Held, that the Court be
low erred in dismissing the complain
ant’s bill upon demurrer thereto for
want of equity.
Judgment reversed.
J. L« Wimberly, S. H. Hawkins,
for plaintiff in error.
Bianford & Miller, for defendant in
error.
Alexander & Howell, plaintiff’in error,
vs. Wm. C. Smith, defendant in
error.
Warner, j.
When, upon the trial of a cause, a
mortgage deed, which had been re
corded, was offered in evidence, and
create a lien on the growing crop, un
de* - the act of 1S66, for provisions fur
nished to make the crop ; as the stat
ute prescribes no form5 the words
‘ ! sell, mortgage and convey rf ” are suf
ficient for that purpose.
Judgment reversed.
J. E. Brown, Fielder & Powell, T.
F. Jones, for plaintiff’s in error. A.
Hood, Richard Sims, for defendant
in error.
Nick Hightower plaintiff’ in error, vs.
Jesse Williams defendant in error.
Ejectment from Early.
BROWN, C. J,
1. A deed which has not been recor
ded can not be given in evidence as
color of title without proof of its execu
tion.
2. When both parties derive their
title from the same person, plaintiff
in ejectment need not show title into
such person.
3. In a proceeding to foreclose a
mortgage on real estate, the Superior
Court of the county where the land
lies, has jurisdiction of the subject
matter, and a purchaser at Sheriff’s
sale, under a judgement of loreclos-
ure now claimed to have been without
seivice will beprotected, when the rule
absolute shows upon its face that a copy
of the Nisi was served upon the mort
g4gor according to law.
4. When service of the rule was ac
knowledged by a general agent of the
mortgagor, who now testifies that he
was not specially authorized to ac
knowledge service of the rule; audit
James J. Waring, in i?rror, vs. The
Georgia Medical Society, defend'ani
in error. Mandamus trom Chatham.
BROWN, C. J.
1. When a voluntary society applies
for a charier and is incorporated to
promote its objects ; the acceptance ol
the charter subjects it to the supervis
ion of the proper legal authorities hav-
in? jurisdiction in such cases.
2. The Georgia Medical Society is a
private civil corporation, and the cor
porators have a properly in the fran
chise of which they can not be deprived
wihout due process of law.
3 The ninth by-law of this corpora
tion is a legal and proper one, in view
of the objects of the Society; hut the
Society has not an uncontrolable di-=-
cretion in its construction and enforce
ment, when a proper case is made the
Courts are to construe it, and judge ot
the legality of the action ol the So
ciety under it.
4. The Superior Court ol Chatham
county, where this corporation is loca
ted has the visitorial power over it, with
authority to redress any wrongs which
the corporation may inflict upon its
members.
5. Where a corporator has a clear
legal right which has been violated by
the corporation, and he has no othei
adequated legal remedy, he is entitled
to relief bv mandamus.
6. The record in this case shows that
the society censured Dr. Waring for
doing that which the’Iaw not only au
thorizes but encourages : and the re
turn to the mandamus ni si show3 no
sufficient cause for his expuesion. He
is therefore entitled to a peremptorv
mandamus, commanding and compell
ing the Society, to restore him to all
his rights and privileges as a corpora
tor.
Judgment reversed.
Hartridge and Chisuhn, for plaintiff
in error.
Thos. E. Loyd, Jackson, Lawton
.& Bassinger, for defendant in error.
S. H. Mims, plaintifl’in error, vs. The
State of Georgia, defendant in error.
Vagrancv from Early.
BROWN, C. J.
The evidence in this case was clear
ly insufficient to support the verdict;
and the judgment is therefore revers
ed. and a new trial granted.
J. K. Appling, A. Hood, for plain
tiff’in error. S. Wise Parker, Solicitor
General, for the State.
A Grand Idea.
It is said that five thousand China
men are on their way, via St. Louis,
to the sugar plantations of Louisiana.
If so, what has appeared to be a dark
and unpromising problem is in process
of solution. The great alluviums of the
South will be rescued from the jungle
and made to resume their ancient con
tributions to the wealth of the South
and the country. The Chinese will be
more valuable and cheaper laborers
than the negroes ever were, and in a
very few years Mississippi, Louisiana,
Texas and Arkansas will be more
productive of sugar and cotton than
they have ever been before. The ne
groes in tnose States will be driven to
the upland regions, while the same
race in Virginia, Kentucky, and North
ern Tennessee will be driven Souih bv
white labor. Cuffee will therefore tie
flanked on both sides, and it is proba
ble Alabama, Georgia and Florida, and
and the Carolinas, will be the
theatre of his final conflicts on the A-
mericau continent, in competition with
the superior hardihood, intelligence and
energy of the Asiatic and European ra
ces.— Telegraph,.
Overland Fares.—The California
papers of June 17lh contain the latest
revision of passenger fares. The charg
es are as follows : From San Francis
co to Promontory Point, $50, in gold ;
fiom San Francisco to Omaha, 8133;
to St. Louis or Chicago, $153 ; to Cin
cinnati, Si6G 50; to Niagara Falls,
$170 50; to New York 173; to Bos-
Lon, $176; all the through rates pay
able in currency. Children under
twelve years of age half price; under
five years, free. One hundred pounds
of baggage is allowed free to each pas
senger. The schedule time is, from
San t rancisco to Chicago, five days
seven hours; to St. Louis, five days
five hours; to New York, seven davs.
A correspondent of the New Y’ork Tri
bune , who has recently passed over
the Pacific railway, gives eight davs,
two and a half hours, as the time re
quired to pass from New York to San
Francisco, waiting five hours at Chi
cago and ten hours at Promontory
The Central Pacific trains, it is stated,
in coming East, pass over the road
eleven hours quicker than in going
West. The extra expense for meals
and sleeping cars are from five to six
dollars a day. The meals, until reach-.