Newspaper Page Text
Vol. L. MILLEDGEVILLE, GEORGIA, TUESDAY, AUGUST 24, 1869. No. 34.
JSZL- O E Sc S O jm,
EDITORS and proprietors.
], r ih—) i’er annum, in Advance.
U ,V■KKTIS'IXG—Persquare oftenlines, each
' er tida, S I ,,l E_ Merchants and others foratl
j,ants jver $ 25,twenty-live per cent.off.
LEGAL ADVERTISING.
tlrlinary''s.—‘Citationetor letter* ot ad-
. ii,tratiou .guardianship , Ac $3 Ot)
i ,„i,-stead notice . 2 00
1 ; c:itioutorletters ot dism’n fromadm’n 5 00
1 jjicatiout’or lettersot dism’n of guard’n 3 50
^ ! i ication tor leave to sell Land 5 00
V[, e to Debtors and Creditors 3 00
■ les 0 ! Luid, per square, of ten hues 5 00
U' personal, per sq., ten days.... 1 50
f if.—Etch levy often lints, or less.. 2 50
sales often lines or less 5 00
i' 1 .-x Collector’s sales, persq, (2 months) 5 00
ir/a--Foreclosure of mortgage and oth-
C '' r "monthly’s, per square 1 00
,.. trilV notices, thirty days 3 00
Tributes of Respect, Resolutions by Societies
i',ituaries, exceeding sit lines, to be charge 1
j transient advertising.
’ -gej lies of Land, by Administrators, Execu-
, ail udians, are required by law,to be helj
lhi the lirst Tuesday in the month, between the
i , ]]S often in the forenoon and three in the a '•
,, j , ou , at the Court-house in the county in which
y,. property is situated.
V uiee of these sales must be given in a public
,'iu Jtte 40 days previous to the day of sale.
Notice for the sale of personal property must be
•,ve i in like manner 10 days previous to sale day .
Notices tJ debtors and creditors of an estate
B , s - ,iiso be published 40 days.
Nitiee that application will be made to the
t'jurt of Ordinary for leave to sell laud, must be
Polished for two mouths.
Citations for letters of Administration, Guar-
j l „ s | 1 ip, &c., must be published 30 day s—for dis-
„ u) pi(H from Administration, monthly six months ;
!imnissiou trorn guardianship, 40 days.
Kii:s for foreclosure of Mortgages must be
■) pjiished ot inlhly forfoitr mouths—for establish*
papers, for the full spaccof three months—
i.ir : i mohing titles from Executors or Adiuinis-
trators, wiiere bond has been given by the de-
ceiHa 1. the full space of three months. Charge,
*1 ilJ ptr squire of ten lines for each insertion,
p i Lie itioas will always be continued accord
these, the legal requirements, unless oth
...vise ordered.
Me dale olMicoii & Augusta R* R.
Leaves Camalc, daily, at 12.30 P. M.
•Milledgeville (1.30 A.M.
Arrives at Milledgeville —....... 4.20 P.M.
Camak 11.00 A- NI.
Passengers!eaving Augusta or Atlanta on Day
hsseuferTrain of Georgia Railroad will make
.ue connection at Camakfor inteimediatepoints
the above road, and also for Macon, Arc. Pas-
■ -jo-ers faring Milledgevilleat 5.30. A. M..reach
Atlanta and Augusta same day,and will make
,'.; ose connections at either place for principal
miatsin adjoining States.
1 J B E. W .COLE, GenMSnpt.
Augusta,January 7,1668 4 tl
'Uirni-WESTERN it. R. (’o. .
OFFICE, MACON, GA. t March24th, 186H
Columbus Train—Duily.
Leave Macon ia ‘m'
Arrive at Columbus 1L "• "* •
heave Columbus a on p m"
Arrive at Macon ••• 6.20 P -
EafauLa Train—Daily.
Leave Macon 8.00 ^
Arrive atEufaula \ "J-
Leave Eufaula
Cmnecting with Albany Train at Smithvillc
Ltave Sinithville I -46 P. M.
Arrive at Albany P-
Leave Albany J ^ A. M.
Arrive at Smithville .11.00 A. M.
rmnectino with Fort Gaines Train at Cuthliert.
Leave Outhbert * 57 t> m
Arrive at Fort Gaines b.iij I . M.
Leave Fort Gaines' 7.05 A. M.
Arrive at Cuthbert 9.05 A.M.
O'Uiuecting with Central Railroad and Macon
,t Western Railroad Trai us at Macon, and Mont
gomery & West Point Trains at Columbus.
VIRGIL POWERS,
Engineer «& Superintendent.
Schedule of the Georgia Railroad.
I IN AND AFTER SUNDAY, MARCH 29tli
U MRS, the Passenger Trains on the Georgia
Railroad will run as follows:
DAY PASSENGER TRAIN.
(Daily, Sundays excepted )
Leave Augusta at * A® A M-
Atlanta at T'~, » vr
Arrive at Augusta 3.30 I . M.
“ at Atlanta P. M.
NIGHT PASSENGER TRAIN.
Leave Augusta at * <4 45 1. M.
'• Atlanta at ^ ' V
Arrive at Augusta > -' }l ,
“ Atlanta 4.00 A.M.
BERZELIA PASSENGER TRAIN-
Leave Augusta at 4.30 I • M.
Uerxelia at 7-OCI A. M
Arrive at Augusta n id’
“ at iierzelia , . x^.W.
Passengers for Milledgeville,Washington and
Athens,Ga.,musttakeDay Passengei Train iroui
Augusta and Atlanta.
Passeugersfor West Poiut, Montgomery, Sel
ma, .Mobile and New Orleaus must leave Augusta
on Night PassengerTrain at 3.45 P. M.,to make
cluse couuections. „ . , _ , x
I’asseuoers for Nashville,Corinth,Grand June-
bou, Memphis. Louisville and St. Louis can take
either train and make close connections.
Through Tickets and Baggage checke^dthrough
G the above places. .......
Pullman’s Palace SleepingCars on all Night
Passenger Trains. . ,,
S E . W. COLE, Gen lSuperint dt.
Augusta,March 26,1868 i—iL
Atlanta SL fllfe&L Ifolnt
RAIL HOAD.
Day Passenger Train—Outicard.
Leave Atlanta 4.45 A. M.
Arrive at West Point 9..j0 P. M.
Day Passenger Train—Inward.
Leave West Point I-M
Arrive at Atlanta 6.20 P.M.
.Sight Freight and Passenger—Outward
Leave Atlanta iVan P w’
Arrive at West Point 11.4(1 P. M.
■ViyAt Freight and Passenger Train—Inward.
Leave West Point-.- ^*7,^ *
Arrive at Atlanta. 11.30 A. M.
4>h.an.cye. of* £PchccLulr•
OFFICE SOUTH CAROLINA R. K. CO , J
Augusta, Ga., March 25, 1866. )
O N AND AFTER SUNDAY, 29th March,
1808,the Mai and Passenger Trains of this
1{ oad will leave and arrive at through Central
bepot,Georgia Railroad, as follows:
burning Mail and Passenger 1 rain
^ 0r Fliarleston, connecting Train for Columbia,
South Carolina, Charlotte Road, and W’ilming-
tonand Manchester Railroad.
L^aveCentral Depot at 5.50 A.M.
Arrive atCentral Depot .. —. • 3.30 P. M.
■^‘ght Passenger Sf Accommodation Train
I" orC'narleston, connecting with Train for Co-
lumbia.and withGreenville andColumbiaRail-
road:
Leave Central Depot at 3.50 P. M.
Airive atCentral Depotat 7.00 A. M.
H. T. PEAKE,
General Superintendent
IDECISI03NTS
OF THE
SUPREME COURT OF GEORGIA,
Delivered at Atlanta, Aug. 3, ’69.
Furnished by N. J. Hammond, Supreme
Court Reporter, Expressly for the
Constitution.
H. & T. M. While, plaintiffs in error,
vs. New Manufacturing Company,
defendants in error. Motion to dis
miss bill of exceptions, from Newton
counly.
BROWN, C. J,
3 • Where a motion for a new trial
was made in the Court below, which
was granted, and that decision is
brought by writ uf error to this Court,
a brief of the oral, and a copy of the
written evidence adduced in the Court
below, must be embodied in the bill ot
exceptions, or attached theiclo as an
exhibit, when presented to the Judge
for his certificate, and identified by his
signature on the same as a true copy,
and constitute a part of the same b or
ihe writ of error will be dismissed.
2. In a motion for a new trial, a
brief of the evidence agreed upon by
the parties, and approved by the Court
without such agreement, in case they
fail to agree, must he filed in the clerk’s
office. But such brief of evidence con
stitutes no part of the record, and need
not lie recorded by the clerk, and as it
is embodied in the bill of exceptions,
should not be embraced in the copy of
ihe recerd sent up to this Court.
3. The record in a case in the Su
perior Court, consists of the declara
tion, process, plea, return of service by
the sheriff and other official entries,
verdict, judgment and all interlocutory
orders passed by the Court during the
pendency of the case ; and in case of
a motion for a new trial, the order nisi,
together with any order passed by the
Court, setting it down for a hearing in
vacation, or adjourning the hearing
from time to time, and in case a new
trial is granted, all subsequent orders
passed by the Court including the final
judgment.
Writ of error dismissed.
Clarke & Pace, Peeples & Stewart,
for plaintiffs in error.
Jno. J. Floyd, Hammond & Mynatt,
for defendants in error.
Richard T. Walton, plaintiff in error,
vs. John L. Anderson, defendant in
error. Equity from Wilkes.
BROW N, C. J.
]. When the question was raised
whether a bona fide purchaser of eigh
teen bales ot cotton, from a defendant
in fi. fa. in 1861, could bold it discharg
ed from the lien of the judgment after
two years possession, and the evidence
was in conflict, the weight of it
being in favor of the bona fides ot the
transaction ; and the Court charged
the jury that two j'ears possession ot
the collon bona fide, and tor valuable
consideration without notice, before
the levy or service of the bill, d ischarg
ed the cotton from the lien of the judg
ment ; and the jury found for the de
fendant, who was the purchaser.
Held : That the charge ot the Court
and the finding ot the jury, were right,
under the rule laid down by this Court
at this term, in the case Chapman vs.
Akin. And a new trial will not be
granted, because the Court may have
charged loo favorably to the defendant,
upon another ground taken in the case,
which could not change the verdict if
the defendant was a bona fide purchas
er of the cotton for a reliable consider
ation, which question was distinctly
submitted to the jury by the charge as
given by the Couit, and found by the
defendant.
Judgment affirmed.
Toombs & Du Bose, for plaintiff in
error.
Judge Wm. Reese, for plaintiff'in
error.
W. T. Marlin, plaintiff in error, vs.
John Eberhart administrator, etc.,
defendant in error. Ejectment, from
Oglethorpe.
BROWN, C. J.
Where the testator directed that all
his property be kept together during
ihe widowhood of his wife, to be used
for the support and maintenance of his
wife and the education of their minor
children, and that his executors give
off to each of bis minor sons, as they
might come of age, and to his daugh
ters as they might come of age, or mar
ry, about thirty-one or two hundred
dollars in money, or property, as may
be most convenient to the estate, and
most suitable to the parly receiving
property ; and in order to enable his
executors the more conveniently to car
ry out the foregoing objects, he there
by gave them power to sell any ot his
property, and to buy, or to exchange,
tor other property, taking care to give
a full statement and history of all such
sales, purchases and exchanges, to the
Court of Ordinary.
Held: That it was the intention ot
the testator to give the executor pow
er to sell at private sale, and that such
sale by him, if fairly and honestly
made conveyed a good titfe to the put-
chaser.
Judgment reversed.
Toombs, Mathews and Reid, lor
plaintiff in error.
A. T. Akerman, for defendant hi ei-
ror.
Jas. H. Jones, plaintiff in error, vs.
Lellyett & Smith, defendant in er-
or. Claim from Catoosa.
WARNER, J.
This was a claim case. It appears
from the record, that the plaintiff’s ob
tained a judgment against Wooten, the
defendant in error, who was the owner
of a lot of land in controversy at the
lime of the rendition ot the judgment ;
that Wooten had been adjudged a
bankrupt ; that several years before
W uoten became a bankrupt, lie sold
the laud to Jones, the claimant, who
weni into possession of it ; that the
judgment was a valid lien on the land
at the time Woolen became a bank
rupt ; that this property was noL in
cluded in Wooten’s schedule ; that this
debt was not [moved in the Bankrupt
Court, and that Wooten’s estate paid
no dividend.
Held: That upon the foregoing state
ment of tacts, that the lien of the judg
ment creditor upon ihe land, under the
laws of this 8tate, was not defeated by
the bankruptcy of Wooten, and that
Jones, tho claimant, could not plead
Wooten’s certificate of discharge in
bankruptcy against the judgment cred
itor, and, thereby, defeat his judgment
lien upon the lien upon the land,which
was a good and valid lien thereon ;—
that by the 20th section of the Bank
rupt Act, the judgment creditor having
a valid lien upon the land, was not
bound to prove his debt secured by
the lien, to the extent of the value there
of in the Bankrupt Court.
Judgment affirmed.
Huge & Spraberry for plaintifi'in er
ror.
Dodson & Payne for defednant in
error.
O. Rockwell, plaintiff in error, vs. D.
(j. Proctor, defendant in error. Cer
tiorari, from Monroe.
Where a suit was instituted in a
Justice’s Court by the plaintiff against
the defendant as an inn-keeper, to re
cover the value of a lost overcoat,worth
thirty dollars, which had been receiv
ed by a negro then in charge of the ho
tel, and officiating therein as the ser
vant of the inn-keeper during his ab
sence, and deposited in the usual place
of depositing the goods of the inn-keep
er’s guests upon their arrival at the Ro
le!.
Held : That the Justice’s Court had ;
jurisdiction ot the subject matter of ihe |
suit, and that the defendant was lia- |
ble as an inn-keeper to the plainlift’for j
the value of the lost overcoat, under
the stale of facts disclosed by the rec-j
ord in this case.
Judgment reversed.
J. S. Pinckard, for plaintiff in error.
A. D. Hammond, tor defendant in
error.
George R. Sims, et. al., vs. Martha j
Sims, et. al. Bill, etc., from Ogle- j
thorpe.
McCAY, J.
1. An heir at law before he can
claim any part of an estate as distrib
uted, must account for advancements
at their value, at the lime of the ad-
vaneemerft.
2 In the distribution of an intestate’s
estate, a memorandum, kept by a pa
rent, of his advancements to hit. chil
dren, indicating, a scheme of distribu
tion of specific articles in kind, is only
evidence of the fact of the advance
ments, etc., prima, facie of their value ;
and its indications of the intestate’s
scheme for the distribution of his es
tate will be unheeded, unless the pa
per be proven as a will.
3. The value of an estate, at the time
of the first distribution is the proper i
criterion for arriving at the rights of
the heirs al law with respect to ad
vancements.
Judgment affirmed.
B. H. Hill, by the Reporter, for
plaintiffs in error.
Mathews & Reid, Toombs & Du-
Bose, tor defendants in error.
Miles G. Itobbins, vs. C. N. Dupree.
Illegality, from Spalding.
McCAY, J.
1. The verdict in this case is r.ot so
contrary to the evidence, as to shock
the moral sense, or show manifest cor
ruption, prejudice, or mistake in the
jury, nor does it violate any rule of the
law.
2. In this State, though an Attorney
who appears in a cause, and confesses
judgment tor a suitor, is prima facie to
he held as retained by the suitor, yet,
if the fact be otherwise, the Court will
on proof to that effect, set aside pro
ceedings.
Judgment affirmed.
Brown, C. J., concurring.
1. Where an Attorney al law ac
knowledges services of the writ, and
at the trial term, confesses judgment,
for the defendant, the presumption of
law is, that he had authority to do so;
but tliat presumption is only prima. fa
cie, and may be rebutted by proof.
2. In a proceeding to set aside a
judgment, on the ground that the de
fendant was never sued, when it ap
pears that an Attorney of the Court,ac
knowledged service, and confessed
judgment for him, the burden o( proof
if upon the defendant, who moves to
vacate the judgment ; and he must
make satisfactory proof that the attor
ney had no authority to represent him,
or the judgment will not lie disturbed.
But if the evidence is conflicting, arid
the special jury have found for the
movent, and the presiding judge has
refused to set aside the verdict, which
was afterwards set aside by this Court ;
and »here has been a new trial before
another jury and another Judge, and
the movent lias strengthened his evi
dence, on the second trial, and the ver
dict is again in his favor, and the pre
siding Judge on the second trial,refuses
to disturb it,and the evidence is so con
flicting as to raise grave cloubts which
way the finding should have been, and
no rule of law has been violated, this
court will not further interfere. It is
the proper province of the jury to de
cide questions ol fact, and when the
evidence is conflicting, and there is
sufficient evidence to sustain the find
ing, this court wilt be slow to disturb
it.
Warner, J., dissenting.
W len it appeared from the record,
that a judgment had been entered
against a defendant upon an acknowl
edgment of service on the writ, and
confession of judgment by an attorney
at law; that the defendant resided in
the county, within one mile and a hall
from the Court house where the judg
ment was rendered, and no motion
having been made to set the judg
ment aside until the expiration of five
years after it was rendered, and the
attorney who made acknowledgment
of service and confessed the judgment,
swears, that he should not have done
so wiihoul authority, and no just de
fense to the original contract being al
leged as a reason for setting the judg
ment aside.
Heid : That, under the 448th sec
tion of the. Code, the acts of the attor
ney acknowledging service, and con
fessing judgment, were prima facie cor
rect, and binding upon the defendant
as to his authority to do so indepen
dently of his testimony upon that point ;
and that it is against the policy of the
law, as well as against public policy,
to allow the defendant to come into
Court and set aside the judgment upon
his own evidence that he had not been
legally served in the original suit, upon
the slate of facts presented by the re
cord, as was held by this Court, be
tween the same parties in this case, in
36th Ga. Rep. 108.
Speer & Beck. Boynton &Dismuke,
for plaintiff'in error.
Peeples & Stewart for defendant in
error.
Rivers Reese vs. D. H. Burts, admin
istrator, etc. illegality, from Chat
tahoochee.
McCAY, J.
1. A temporary administrator may
fife an “illegality” to an executive pro
ceeding to sell the intestate’s lands,and
the permanent administrator will, on
motion, he allowed to become a parly
to the proceeding.
2. An execution, to enforce a judg
ment must follow t lie judgment, and if
there be a material variance, the exe
cution will be quashed.
3. \\ hen a decree directs that cer
tain described lands shall be sold to
satisfy a lien for the purchase money,
with a proviso that this shall- not inter
fere with tlie widow’s dower, and that
the parcels set off to her shall be free
from the force of the lien.”
Held : That a lair construction of
the judgment is, that the lien is to be
enforced against all the lands describ
ed, but not to proceed against the dow
er lands until the death of the widow.
4. Held further : That on proof of
the death, the Court will direct execu
tion to issue against all the lands, but
that it is illegal for the clerk, without
an order of the Court, to issue an exe-
ecution directing the sale of the whole,
without qualification, even if tlie fact
be that the widow is dead.
5. The vendor’s lien for the pur
chase money, when it exists, stands
under the Code on the same footing as a
mortgage, in the distribution of ati es
tate, and it does not lose ils priority
even if not reduced to judgment until
after the death.
. Ju Igment affirmed.
E. G. Raiford for plaintiff in error.
D. H. Burts for defendant in error.
John H. Lovelace, vs. Chas. H. Smith,
et. al. Debt, from Harris.
WARNER. J.
When a suit was instituted on a
guardians bond against the principal
and surity, to recover the amount ofa
judgment alleged to have been ren
dered against the guardians, and when
the judgment was offered in evidence,
14 appeared to have been rendered a-
gainst the defendant therein in his in
dividual capacity, and not as guardi
an—the plaintiff then moved the Court
to amend the judgment upon the ground
that it was rendered upon a note sign
ed by the defendant in his individual
capacity, but in the body thereof,prom
ised to pay the plaintiff' the amount
specified in the note “as guardian”
without staling lor whom he was guar
dian—the Court refused the motion to
amend the judgment, and nonsuited
the plaintiff's case upon the evidence
offered to charge the guardian and his
surety in a suit upon his guardians’s
bonds, for the amount of the judgment
claimed by the plaintiff’.
Held : That the guardian could not
by an^ contract bind the estate of his
ward, so as to render his surety liable
therefor, other than such as are spec
ially allowed by law as provided by
the Code, and that there was no error
in the refusal of the Court to allow
the judgment to be amended, and in
granting the nonsuit, upon the state
ment of facts contained in the record,
see Section 1S2S—1821 ot the Code.
Judgment affirmed.
L. L. Stanford, for plaintiff’ in er
ror.
Jas. M. Mobley, by L. E. Bleckley,
for defendant in error.
Jno. C. F. McCook vs. Paulina Cou
sins. Motion for new tidal, from
Chattahoochee.
WARNER, J.
When C, and E, a freedman, enter
ed into an agreement to rein land and
make a crop for that year, and in pur
suance of such agreement,E, the freed
man, rented land from M, and culti
vated the same, and made a crop
thereon ; and from the evidence in the
record the jury had a right to presume
that M had knowledge of the agree
ment between C and E, as to the man
ner in which they were working and
making a crop together.
Field : That M could not retain out
of the proceeds of the crop C’s share
thereof for provisions furnished to E,
without the consent of C, the more es
pecially when it appears that M had
made a special contract with E, the
freedman, to furnish him with provis
ions for that year, and had taken oth
er security therefor.
Held also : That, in view of the
facts of this case, as presented by the
record, the Court below did not err in
refusing to charge the jury as request
ed, por in the charge as given to the ju
ry on the trial of the case.
Judgment affirmed.
P. A. Burts for plaintiff in error.
E. G. Raiford for defendant in er
ror.
B. Hawkins, vs. Thurston & Andrews.
Trespass, from Muscogee.
WARNER, J.
When the Court below granted a
new trial in a case, upon the ground
that two of Lhe jurors who tried the
same, were members of the Grand Ju
ry and had found a true bill against the
defendant, which fact was not known
to defendant until after the trial.
Field : That th s Court will not con
trol the discretion of the Court below
in granting a new trial upon the state
ment of facts contained in this record.
Judgment affirmed.
Ramsey & Ramsey, P. Brannon, for
plaintiff in error.
Ingram and Crawford, by the Re
porter, for defendant in error.
Leopold Slernheiiner, pl’ff in error, vs.
Isaac Coleman, deft in error. Ac
tion on Account, from Muscogee.
BROWN, C. J.
1. It is the right of the Court in the
exercise of a sound discretion, during
the trial of a cause to propound to coun
sel on either side, any question he may
think proper or pertinent to the ease.
2. When a party has given up the
management of his case to his counsel,
and is on the stand testifying as a wit
ness, and a question is propounded by
llie opposing counsel to which his own
counsel objects as illegal; but lie ex
presses his willingness to answer; it is
not error in the Court, if the question
propounded be illegal, to sustain the
objection and refuse to allow the an
swer to fie given in evidence to the
j u ry.
3. Where one ot the items in plain
tiff’s account is for money paid by
plaintiff to a Railroad Company for the
use of defendant; and plaintiff leudeTs
a receipt from the Agent of the Com
pany, signed as Agent; showing the
payment, which is objected to, because
it is not in proof that the person sign
ing the receipt is in fact Agent; or that
it is in his handwriting, and the Court
overrules the objection, and allows the
teceipt to be read in evidence; and the
defendant in his testimony afterwards
admits, that plaintiff did pay for him
to the Railroad Company, the precise
amount mentioned in the receipt; the
admission of.tbe receipt in evidence is
no ground for a new trial.
4. When two items in the account
are lor money paid by plaintiff for the
use of defendant at his request, and
plaintiff offers in evidence the receipts
of the persons to whom the money was
paid ; which are ruled ouUbecaiise they
are not stamped ; and the defendant
admits in his testimony that plaintiff
paid for him to each of said persons
the amount specified in the receipt;
but swears that he paid back to plain
tiff the money which he paid to one of
them; which the plaintiff’ in his testi
mony denies ; and the receipts are per
mitted by the Judge to be carried by
the jury to their room, with the other
papers in the case ; to which defend
ant’s counsel afterwards states in his
place, he objected ; and one of the ju
rors afterwards swears that he heard
defendant’s counsel say something
about the papers going to the jury, but
cannot slate what he said, and does not
state that the jury either read or con
sidered the receipts; aud neither the
Judge nor opposing counsel have any
recollection that such objection was
made. Held: That the fact, that the
jury carried out the receipts ander these
circumstances is no sufficient cause for
a new trial.
Judgment affirmed
Moses & Garrard, for pl’fl' in error.
H. L. Benning, for def’l in error.
Martha Webb and Wesley Webb,
pi’tffs in error, vs. Lafayette Harp,
def’l in error. Motion to dissolve
injunction, from Chattahoochee.
BROWN, C. J.
Where a plaintiff'in li. fa. had a lot
of cotton, mules, etc., levied upor . and
pending the levy, it was agreed be
tween him and the defendant, that he
should release the property from the
levy and return it to tlie defendant,
and should enter the execution fully
satisfied, in consideration that defend
ant would convey to him a tract of
land, with certain personal property,
in payment of the fi- fa.; and in com
pliance with said agreement, plaintiff’
released and restored the property lev
ied upon, which was sufficient to have
satisfied the fi. fa. to the defendant,
and the. defendant delivered to the
plaintiff possession of the land and per
sonal property, and turned over to him
the title papers, and was to make him
a deed as soon as they could get it
drawn, and defendant died soon ntter,
without making the deed ; and his wid
ow. who was admitted to be insols'ent,
after the end of tiie year, finding the
premises vacant, took possession, claim
ing the land for her husband’s estate,
and commenced proceedings in the
Superior Court to have her dowet al
lowed out of the same, there being no
legal representative of her husband’s
estate; and plaintiff fifed bis bii al
ledging these facts, and praying that
she be restrained from trespassing upon
the land, and also from prosecuting her
action for dower, until a legal repre
sentative of the estate is appointed.
Held: That it was not error in the
Judge, who granted the injunction, to
overrule a motion to dissolve it, and to
hold it up, until the alleging of the bill,
placing his decision on the ground of
restraining the trespass above.
Judgment affirmed.
Blanfonl & Miller, by Mr. Russel,
for plaintiff in error.
E. G. Raiford & D. H. Burts for de
fendant in error.
Andrew Jordan, plaintiff’in error, vs.
The State oi’ Georgia, defendant in
error. Burglary from Muscogee.
BROWN, C. J.
1. The penalty for the crime ol bur
glary was changed by the Legislature
between the commission of the crime
by the defendant in this case acid the
tune of his trial.
Held: Under section 4570 of the Re
vised Code, that lbe defendant was
properly prosecuted and punished un
der the laws of force at the time the
crime was committed.
2. The evidence in this case was
sufficient to sustain the verdict of the
jury.
Judgment affirmed.
Ramsey & Ramsey, Williams &
Thornton, for defendant in error.
Carey J. Thornton, Solicitor Gen
eral for the Slate.
Joseph Douglas, plaintiff" in error, vs.
M. S. Thompson; defendant in error.
Equity, from Bibb.
BROWN, C. J.
When the Equity ol the bill is fully
sworn off’by the answer and the bill fe
retained for a hearing, and no irrepar
able mischief can result; this Court
will not control the discretion of the
Court below, in dissolving the injunc
tion.
Judgment affirmed.
Washington I’oc, for plaintifi'in error.
O. A* Lochrane, by Judge Clarke,
for defendant in error.
Heiu v C. Pope, plaintiff in error, vs.
W. TJ. Garrard. Complaint, from
Muscogee.
BROWN, C. J.
1. By section 2267 of the revised
Code it is declared : “The destruction
of a tenement by lire, or the loss of
possession by any casualty, not caused
by the landlord, nr from defect of his
title, shall riot abate the rent contracted
to he paid.”
Held: Under this section of the Code
and under the former rulings ot this
Court, if the premises rented are de
stroyed by fire, during lbe term the
tenant, under an ordinary rent con
tract, is liable for the payment ol rent
for the full period for which lie rented.
2. Where a room in a building was
rented for a drug store, for one year,
and three notes were given at six, nine
and twelve months for the rent, and
the building was burned down a little,
before the end of six months, the ten
ant is liable for the payment of the two
last notes as well as the first.
3. The counters and drawers in a
drug store, placed there by the land
lord, and rented in their place with the
store, are fixtures, which tenant has no
right to remove, and it the building is
burnt, and they are saved by the ten
ant, they are the property of the land
lord, and he has the legal right to dis
pose of them as he thinks proper. The
tenant has no right to remove them - to
another store rented from a third per
son.
4. The fact that the landlord has the
building insured, does not change the
rights or liability of the tenant.
Judgment affirmed.
McCAY, J., dissenting.
Jas. M. Russell, tor plaintiff in error.
Moses & Garrard, tor defendant in
error.
E- Whelchel vs. O. B. Thompson.
Partition, from Hall.
McCAY, J.
J. The pendency ofa former suit for
the same cause of action, is a proper
matter to be pleaded in abatement, and
if the parties go to trial on the merits,
the defendant cannot set this up in law.
2. If, in an application for a partition
of lands, the defense be that there has
been a partition, by commissioners who
made no return, but that the parties
had acquiesced, and had subsequently,
under said partition, each occupied tor
several years his portion as set off, to
the exclusion ot the others, and made
valuable improvements, so that it
would be a fraud upon either to repu
diate the division. It is error in the
Court to charge the jury that this ad
verse and independent possession by
each of his part must, in order to con
stitute a defense to an application fora
new partition, have continued seven
years.
Judgment reversed.
W. Boyd and C. R. Simiuoas, by
Geo. Hillyer, for plaintiff’in error.
E. M. Johnson for defendant in error.
Note.— Brown C. J., did not preside
in this case.
Seein; Ihe Elephant.
A couple fc of lads in Portage City
climbed a tree outside the tent to get a
“dead head” view ot Forepangli’s
circus. What came of it, the Register
tells us as fellows :
“As soon as the elephant was through
with, in the ring, the managers broughi
himfeutand hitched him to the identical
tree, from the limbs of which the lads
were viewing the circus. To “a boy
up in a tree,” this thing looked a little
out of order, but they kept as quiet as
death, fearing that they would eilhei
lose the closing views of the perform
ance, or be the subjects of the displeas
ure of the circus man, if he should
discover them “dead heading” it to his
show. In due time the performance
closed, the crowd dispersed, and hor
ror upon horrors, the keeper of the
animals now added to the perils of
their situation by hitching two smaller
elephants and a camel to the same tree.
Our lads now discovered that they
were in for a night of it, as all hands
had left excepting only tbemselve and
the animals on guard below. All hope
of escape was now cut offi About
this lime Romeo concluded to investi
gate matters above him, and with his
trunk commenced trimming out ihe
branches. Our boys commenced
climbing also, until they had got above
his reach ; and now' the camel took up
the investigation, and poking his ugly
mug up among the limbs, he drove the
boys to the very uppermost branches
of the tree w here they were discovered
at daybreak, by their anxious parents,
who hadtieen searching for them in vain
all night, teetering and tossed about
like blackbirds on the lop ofa rice-stalk
in a w’indy day. The boys saw more
of these animals than all the rest of the
hoys in town, “for nothing” too ; and if
they don’t remember the time for the
balance of their natural days when
th^y “sat up” with Romeo, then we
miss our guess. The phrase, “seeing
the elephant,” was to them a practical
application, which they will always
remember.”
Babv’s Linen.—An intelligent young
mother inquired some days since how
she could best preserve her child’s lin
en clean and sweet when changed fre
quently during the day. I directed
her never to dry it by the fire, but in
the sun and open air if the weather
permitted. You thus not only avoid
saturating the air of your room w-iih
the volatile and poisonous gases driven
out of the linen, but the sun’s ravs have
powers of cleansing and disinfecting,
which artificial heal has not, and will
purify and preserve the linen. She
followed my directions, but, as is too
oftcu the practice, dried and aired it
in the nursery window. Her fastidious
husband remonstrated in vain against
this unseemly exposure. Believing
that if she saw her practices as others
saw it, she would desist, he so directed
their afternoon walks as to bring ihe
nursery window into full view from a
central part of the town. Stopping ab
ruptly, he pointed to the offending linen
flapping conspicuously in the breeze,
and asked sarcastically : “My dear,
what is that flapping from our win
dow?,’ “Why,” she proudly repbed,
“that is the flag of our union !” Con
quered by this pungent retort, he salut
ed the Hag, with a swing of his hat,
arid pressing his wife’s arm closer
within his own sang, as they walked
homeward—
“And lonp may it wave.”
1 An Eminent Physician in Hearth A Hume
An Irishwoman who had kept a lit
tle grocery shop, was brought to her
death bed and was on theofpoint breath
ing her last, when 3he called her husb
and toher bedside. “Jamie,” she family
said, “there’s Missus Muloney—she
owes me six shillings.” “Ocb !” ex
claimed her husband, “Biddy, darling,
ye are sinsible to the last !” “Yes,
dear, and there,s Missus VfcGraw—I
owe her halt a sovereign.” “Och !
be jabbers, and ye’re as foolish as iver.
A Irishman, recommending a cow,
said she would give good milk year
alter year, without having [calves, be
cause it ran in the breed, as she came
from a cow that never had a calf.
Tbe fluid extract of lobelia, when ap
plied to musquito bites,entirely and almost,
instantly puts an end to their itebiog It
can ba obtained of any druggist.