Newspaper Page Text
Vol. L.
R. (ML O IEt 1S/L E & S O jsr,
Kid FOILS A\I> PROPRIETORS.
l lier anauin, in Advance.
\\i\ i.iiTi' 1 1 x<! 1 ersquare ol ten Hues, each
1.,>u. $ I '•'(•_ Merchants and others fora!!
,,,mis ' v'e r $ 25, t wenty-li v e per cent. oil.
LKliAL ADVBKTISIKU.
if■.linury's-—Uit^tionsfor lettersol ad-
,,nation,guardianship,& c *3 (in
I .11 stead notice o y,,
,jc.itioiilorletters of disrn 11 fromadm’n 5 ()u
, mcationior lettersot dism'nofguard’u r ( y
,,ii"ition tor leave to sell Land--...... 5 no
.iice tn Debtors and Creditors 3 yy
llL . s at Hand, per square of ten lines 5 00
, ,,f personal, per sq., ten days 1 fill
' ritf* — Each levy of ten lines, or less.. 2 50
/..jo-acre sales of ten lines or less 5 00
■^Collector’s sales, per sq. (2 months) 5 00
i, r';s -Foreclosure of mortgage and oth-
>r monthly's, per square 1 00
"tvav notices, thirty days 2 00
fributes of Respect, Resolutions by Societies,
, )ituaries,&c.,exceeding six lines,to beckarged
transient advertising.
•jp Sales of Land, by Administrators, Execu-
ir ' SJ r Guardians, are required by law, to be held
; !k first Tuesday in the mouth, between the
,ars often in the forenoon and three in the af-
rll mu, a'tthe Court-liouse in the county in which
•• .iroperty is situated.
\ itice of these sales must be given in a public
ue tte 40 lays previous to the day of sale.
Vjtice for the sale of personal property must be'
von in like manner 10 days previous to sale day.
Notices to debtors and creditors of an estate
tst also he published 40 days.
Nitice that application will be made to the
o.irt of Ordinary for leave to sell laud, must be
^pished for two months.
Citations for letters of Administration, fluar-
insbip, &c., must be published 30days—fordis-
isiou from Administration, monthly six months ;
dismission trom guardianship, 40 days,
gilos for foreclosure of Mortgages must be
tj.isned monthly for four months—for establish-
, ,.).si papers, for the full spaceof three months—
1 spelling tatles from Executors or Adminis
ters, where bond has been given by the de-
uej. the fu.ll space of three months. Charge,
[ ill) per square of ten lines for each insertion,
i’1 notations will always be continued accord
r tu these, the legal requirements, unless oth
rise ordered.
MILLEDGEVILLE, GEORGIA, TUESDAY, SEPTEMBER 7, 1869.
No. 36.
DRY GOODS!
^ YfR ) e
v iLulule of Macon & Augusta I\. R.
Leaves Camak, daily, at 12.30 P. M.
Mi Hedge vill e 0.30 A.M.
irrives at Milledgeville 4.20 P.M.
Camak 9.00 A. M.
Passentrers eaving Augusta or Atlanta on Day
sseuo-er Train of Georgia Railroad will make
, se connection at Camakfor intermediatepoiuts
ihe above road, and also for Macon, &c. Pas-
licreisleaving Milledgevilleat 5.30, A. M.,reach
iauta and Augusta same day,and will make
<e connections at either place for principal
.atsinadioiniug States.
E. W COLE, Gen’ 1 Supt.
4 tt
Augusta, January 7,1868
JUTH-WESTERN R. R. CO. ,
OFFICE, MACON, GA.,March24th, 1868
Columbus 'Train—Daily.
: Macon
3 at Columbus.
i Columbus
e at Macon...
15 A. M.
I 1.15 A. M.
12.45 P. M.
. 6.20 P. M.
E a I aula '1V a in—Daily.
L
*;ive
Macon
8.00 A. M.
A i
at Lufaula
5.30 P.M.
L;
jave
Eufaula
. 7.20 A. M.
At
rive
at Macon
4.50 P. M.
aec(
tug tvilh, Albany
Train at Smithvillc
L.
■ IV’H
Sinithville
.... 1.40 P. M.
Ai
•rivp
at Albany
3.11 P. M.
L
» AV «
Albany -. • •
9.35 A- M.
A i
rive
at Sinithville
11.(10 A. M.
ina with Furl Gaines Train at Cuthbert.
L
? live
Cuthbert
3.57 P.M.
A
at Fort Gaines —
5.40 P.M.
Fort Gaines
7.05 A. M.
A
rrive
at Cuthbert
9.05 A.M.
CROCKERY,
Saddlery, and Harness, &c„ Ac..
Foil SALE BY
T. T. WINDSOR, <fc CO.,
MILLEDGEVILLE, GA.
T HE Citizeus of Baldwin and adjoins
ing counties will find a large and
good assortment of
Drown and Bleached Goods of all quali
ties.
Calicoes, of all grades,
Dress Goods in great variety,
Hosiery, Gloves and Shelf Goods oj all
sorts.
The most complete assortment of
ever offered for sale in this place, consisting of
Miles &, Co’s Philadelphia work; Shelley &
Bros’ North Carolina wortft" Butehelder & Co’s
Brogans, and Children’s Misses’ and Ladies tine
work of all styles.
HATS, of Wool, Felt, Straw, Panama, Ac.
CKOCKERY,
A full line of everything that can be called for,
with Glassware and China in Plain and Gilt Tea
Sets.
SADDLERY,
From the old Army up to the fine Morgan Cavalry
Saddle.
Harnoss—Single and Double,
Blind Bridles, Riding Bridles, Whips, Ac
METALXC BURIAL CASES,
Plain, Half Satin, and full Satin Trimmed, in
Plain Cases and Caskets.
Vl NW
In the Grocery Store next door to the Drug
Store of John M. Clark, will be found
Provisions, Corn, Bacon, Lard, Flour, Sugars,
Coffee, Syrups, Molasses, and everything found
in a Grocery Stock, all of which will be sold at
lowest market rates for CASH.
T. T. Windsor & Co.
Milledgeville, Ga., May 18, 1669 20 tf
ijniuectiiig with Central Railroad and Macon
Western Railroad Trains at Macon, and Mont-
i.nery A West Point Trains at Columbus.
VIRGIL POWERS,
Engineer & Superintendent.
Schedule of the Georgia Railroad.
v\ AND AFTER SUNDAY, MARCH 29tli
' L'W, the Passenger Trains on the Georgia
b.lroad will run as follows:
DAY PASSENGER TRAIN.
(Daily, Sundays excepted.)
L‘ave Augusta at 19 A. M.
Atlanta at - 5 A.M.
Arrive at Augusta 3-30 P. M.
at Atlanta 6.10 P. M.
NIGHT PASSENGER TRAIN.
Li n e Augusta at — 3 45 P. M.
Atlanta at 6.45 P.M.
Arrive at Augusta 5.30 A. M.
“ Atlanta 4.00 A.M.
BERZELIA PASSENGER TRAIN.
Leave Augusta at 4.30 P. M.
Berzeliaat 7.00 A.M.
Arrive at Augusta 8.45 A M.
" at Berzeiia 6.15 P.M.
Tassengers for Milledgeville,Washington and
'.ii-iis, Git., must take Day Passenger Train from
rgusta and Atlanta.
Passengers for West Point, Montgomery, Sel-
i. Mobile and New Orleans must leave Augusta
N ight Passenger Train at 3.45 P. M., to make
»se connections. , , , T
Passengers for Nashville,Corinth, Grand Junc-
m, Memphis.Louisville and St. Louis can take
Pier train and make oiose connections.
I (trough Tickets and Baggage checkedthrougb
the above places. _ 1.
Pullman’s Palace SleepingCars on all Nignt
•isenger Trains.
E . W. COLE, Gen lsupermt at.
Augusta, March 26,1868 LlL
‘ItLcuita 6L (West UPaLnl
rail road.
D m Passenger Train—Outward.
Leave Atlanta n'r?, o’ \r
Arrive at West Point J.uO P. M.
Dan Passenger Train—Inward.
Leave West Point * ^ £ ?J'
Arrive at Atlanta 6.20 P. M.
Si<r\t Frei"htand Passenger—Outward.
L *ave Atlanta-..- iVVn p‘ M
Arrive at West Point 11.40 I M.
A'ig/it Freight and Passenger Train—Inward.
Leave West Point 4-2® A. M.
Arrive at Atlauta 11.30 A M.
SIi (uicfc ap SPchcd-iflc-
OFFICE SOUTH CAROLINA R. R. CO-, l
Augusta,*Ga., March 25,1868. 5
(V AND AFTER SUNDAY, 29th March,
f H68. the Mai and Passenger Trains of tins
will leave and arrive at through Central
■Op 0 *,Georgia Railroad, as follows:
Corning Mail and Passenger Train
°f Charleston, connecting Train for Columbia,
"6onth Carolina, Charlotte Road, and Wilming*
j' Jtl and Manchester Railroad.
- ave Central DeDot at* 5.50 A.M.
Arriy e atOentral Depot 3.30 P. M.
Passenger if Accommodation Train
LrC'harleston, connecting with Train for Co-
‘nubia,and withGreenville andColumbiaRail-
road:
^aveCentral Depot at 3.50 P.M.
Arr ‘ve at Central Depotat 7.00 A. M.
H. T. PEAKE,
General Superintendent
ARLINGTON
Jfltdual Ifife insurance
COMPANY.
RICHMOND. VA.
tOT Persons desiring to insure their lives wil
jail upon R. M. ORME, Jr.,Ag’t.
Milledgeville, May 19, 1868 20 tf
p. ii. behnT
COTTON and RICE FACTOR
*
AND
General Commission Merchant,
fVest of the Exchange,
BAY STREET, SAVANNAH, GA
September H, 1S68 36 Iy*_
Dr. Or. W. JONES,
3LES.Lde.nt (H enlist.
ALL DENTAL opera
tions performed with skill
and care. Artificial teetli
inserted in all styles known
to the profession.
•Old cases, not comforta
bly worn, can be made so.
Old Gold Plates takenin part paymentfor Den
ial operations.
^Office, East Rooms Darien Bank building.
Milledgeville Oct. 13,1868. 41 tf_
UNIVERSITY OF NASHVILLE.
lVEeeLioa.1 XDeR>a.rtio.i_ 7 LLt.
rnilE TWENTIETH COURSE of Lectures
will commence on the First day of Noccmbcr
next. The Preliminary Course commences on the
First Monday in October.
Theory & Practice—WM. K. BOWLING. M. D.
Obstetrics—CHA’S K. WINSTON. M. D.
Chemistry—J. BERRIEN LINDS LEY, M. D.
Surgery—WM. T. BRIGGS, M. D.
Institutes—THOS. L MADDIN, M. D.
Clinical Medicine—MM. L. NICHOL, M. D.
Materia Medica—JNO. II. CALLENDER, M- D.
Anatomy—THOS. B. BUCHANAN, M. D.
Surgical Anatomy—VAN S. LINDSLEY, M. D.
Demonstrator—11EXR\ M. COMPTON, M. D.
FEES.—The American Medical Association at
the meeting in May last at New Orleans passed a
resolution that no school charging less than $120.
(while it favored by a large majority $140.)
should be represented in that body, nor should
graduates of such schools be recognized—there
fore the ticket for the full course of lectures is
$140; Matriculating $5 ; Dissecting $10 ; Grad
uating $30.
For additional information apply to
J. BERRIEN LINDSLEY,
Dean of the Faculty.
August 3, 1869 31 3t
LOOK after your WILD LANDS.
P ERSONS owning WILD LANDS in Appling
county, or any of the counties of old Wiikin-
sou —now Telfair, Pulaski, Laurens and Mont
gomery,—will find it to their interest to send their
numbers to the undersigned who, for a small fee,
will, if desired, make examination of lands in
person aud report as to value, &c.
Special attention given to buying and selling
lauds on commission.
REFERENCES.
GEORGE H.' HAZLEHURST, Pres’t Macon
and Brunswick Railroad, Macon, Ga.
Rev. J. W. BURKE, Macon, Ga.
WALTER T. McARTHUR,
Jacksonville, Telfair county. Ga.
July 20, 1869 ‘39 3m :
Blanks for Sale at ibis Offiee-
LINES,
Respectfully addressed to Mrs. J. Mitchell
Darnell , on the death of her only daughter, lit
tle Katie, who died in this city, May 9th, lh69.
Look up, fond mother, dry that tear,
And check that rising sigh;
The little one to you so dear,
Is “safe at home” beyond the sky.
She’s gone! your darling Katie’s gone,
But to a fairer world than this ;
No pain can reach your precious one
In her bright home of bliss.
She came but for a winter’s day,
Earth’s pain and woe to share,
Then raised her wings and soared away,
To her own happy sphere. .
And though you've lost a precious child,
Heaven has gained an Angel bright,
Whom God had lent a little while
To cheer your heart and take its flight.
’Tis but the precious form that lies
Within the lonely tomb ;
The spirit’s far above the skies
In a bright eternal home.
And though so hard to give her up,
It is the will of God,
So meekly drain the bitter cup
And kiss the “chast’uing rod.”
Then, mourn not, mother, in despair
O’er your priceless treasure gone,
Blit with submission breathe the prayer,
“My Father’s will be done.”
Aud soon in heaven you’ll meet again,
Forever there to dwell,
Where comes no sorrow, grief, or pain,
And loved ones say no more—Farewell.
“ VIOLET.”
Milledgeville, Sept. 1, 1869.
DECISIONS
OF THE
SUPREME COURT OF GEORGIA,
Delivered at Atlanta, Aug. ’69.
proof of actual fraud. When uo fraudu
lent intent is shown,the simple fact that
the senior mortgagee, whose mortgage
covers a growing crop, and other prop
erty, was required by the award and
judgm nt to pay, and did pay, a cer
tain sum of money to the mortgagor, is
not sufficient evidence of fraud upon
the rights of the junior mortgagee,
whose mortgage covered only the grow
ing crop, to justify ihe jury in finding
lor the junior morlgagee.
Judgment reversed. •
Vason and Davis for plaintiffs in er
ror.
Hines and Hobbs for defendant in
error.
Furnished by N. J. Hammond, Supreme
Court Reporter, Expressly Jar the
Constitution.
Flagg & Fish, plaintiffs in error, vs.
John W. Johnston, defendant in er
ror. Foreclosure of morlgage from
Dougherty.
' BROWN, C. J.
1. When a mortgage made to Tbs.
Willingham, his heirs and assigns, was
transferred by Willingham, by writ
ten assignment, to John W. Johnston
as administrator of Oreen D. Sharke,
deceased, such assignment, if properly
stamped, conveyed the mortgage*to
the estate, and it became assets in
the hands of the administrator ; and
the proceedings to foreclose it must be
in the name of said Johnston as admin
istrator, and not in his individual char
acter.
Judgment reversed.
H. Morgan, lor plaintiff in error.
Hines and Hobbs, for defendant in
error.
Charlotte Scott, plaintiff in error, vs.
State of Georgia, defendant in error.
Indictment lor adultery and fornica
tion. From Dougherty.
BROW N, C. J.
1. The Code of Georgia adopted by
the new Constitution, forever prohibits
the marriage relation between white
persons and persons of African descent
and declares such marriages null and
void.
2. This section of the Code is not
repealed by, nor is it inconsistent with
that part of the Constitution which de
clares that “The social status of the
citizen shall never be the subject of
legislation.” That clause of the Con
stitution absolutely denies to the legis
lature the power to pass laws in fuiure,
regulaiing the social status, or compell
ing the two races to unite in social in
tercourse. As the laws then in exist
ence allowed Churches, for instance,
to determine for themselves who should
occupy their seats, and where they
should sit, and permitted Railroad and
Steamboat Companies,and Hotel keep
ers, lo classify and assign places to
those using their accommodations, ac
cording !o social status, and grade, as
they might think proper ; the. Consti
tution puls it beyond the power of the
legislature ever lo enact any law com
pelling them to make different classifi
cations, or to group together in social
intercourse those who do not recognize
each other as social equals.
As the social relations of citizens are
not the proper subjects of legislation,
the Constitution has wisely put the
matter at rest, by denying to the legis
lature, the power to repeal or enact
laws on that subject.
Judgment affirmed.
H. Morgan, for plaintiff in error.
R. IJ. Wdiilely, Solicitor General,
for the State.
James C. & J. C. Denham,' plaintiffs
in error vs. J. J. Williams, defend
ant in error—Claim, from Mitchel
county.
BROWN, C. J,
1. When the affidavit to foreclose a
mortgage is made, Ity an attorney, the
recital in it that he is attorney at law
for the mortgagee is sufficient.
2. An affidavit to foreclose a mort
gage on personal properly, in Mitchel
county, made before a Justice of the
Inferior Court of Dougherty county, on
the 24th day of October, 1S66, and the
order of foreclosure issued upon the af
fidavit, by the Judge of ihe county
Court of Mitchell county, on the 29ih
of October, 1S66, is a legal proceeding.
At that time the Justice of the Inferior
Coart had the right to'administer the
oath, and the county Judge had the
right to issue the order.
3. A morlgagee, whose mortgage
co\ers property in Georgia, and in
Tennessee, can not be compelled by a
junior mortgagee, whose mortgage cov
ers part of ihe same property in Geor
gia, to go out of the jurisdiction of the
Court, into another tslate, and pursue
his remedy first against the properly in
Te nnessee.
4. When there is a dispute between
mortgagor and mortgagee, as lo their
respective rights under the mortgage,
and the mortgagee files his bill, and
pending the proceeding in Equity, they
agree to refer the whole question in
dispute to arbitration, and an award is
rendered, and, by consent of both par
ties, made the judgment of the Court,
the judgment is prima facie correct,and
a junior mortgagee not a party to the
judgtnent, who alleges that it operates
as a fraud upon him, will be held to
John Doe, ex. dem., Benj. F. Tuggle,
vs. Richard Roe, cas’ ejr., and John
H. McMath and John Teal, tenants.
Ejectment from Sumter.
BROWN, C. J.
A grant issued to Isaac O. Holland,
orphan. It appeared by parol that
there was no such person as Isaac O.
Holland, orphan, in the district at the
the time of giving in for draws ; but
that Isaac O. Holland’s orphan, Mary
Holland, was in the district and did
give in for a draw.
Held : That parol evidence of these
facts may be given to the jury, not to
prove a mistake in the name of the
grantee, but to give effect to the grant
by identifying the person intended as
the grantee.
Judgment reversed.
J. J. Scarborough by S. H. Haw
kins and Richard H. Clark, for plain
tiff' in error.
W. A. Hawkins, for defendant in er
ror.
Jno. T. Greene, Sheriff', vs. Benjamin
H. Jones. Rule, from Early.
McCAY, J.
Delivered the opinion of the Court,
but failed lo hand it to ihe Reporter.—
The judgment was reversed, upon the
ground that the Sheriff had acted in
good faith and under the ail vice of
counsel.
T. D. Flippes, vs. James V. Reed, C.
D- McFarland. Assumpsit from Ca
toosa.
McCAY, J.
In a suit on a debt contracted, be
fore the 1st of June, 1805, evidence
showing, simply that at the time of the
making of the note, defendant was
worth two thousand dollars, and at the
trial—March, 1869—he was worth but
five hundred dollars, is not sufficient to
justify the jury in reducing the plain
tiff’s claim, it not being shown that this
change in defendant’s circumstances
was in any manner produced by any
conduct of the plaintiff.
Judgment reversed.
Warner J. concurring.
It 1 believed the act of 1868 lo be a
conslilutioual and valid law, and that
the evidence before the jury as to the
loss ol the defendant’s property, was
legal and valid evidence to be submit
ted to them fur their consideration,then
1 should hold, that the verdict in this
case was right, and in accordance with
that evidence, and in accordance with
the intention of the legislature, in al
lowing those facts to be given in evi
dence for the consideration of the jury ;
but as 1 do not believe that act to be a
constitutional and valid law, which au
thorizes the defendant to give in evi-
deuce, as a defense to the note, the
losses which lie has sustained since the
making of the contract, to reduce the
amount of the plaintiff’s debt, I con
cur in the judgtnent of the Court be
low.
E. D. Graham, D. A Walker, for
plaintiff in error.
Dodson & Payne for defendant in
error.
J. C. Thornton & Co., vs. M. E. Solo
mon, Wm. Frank. Assumpsit, from
rti *
I Wlggs.
McCAY, J.
The single fact that the defendant
lost a large amount of property, by the
late war without any proof, that the
plaintiff was in fault, or that it was
caused in any manner by his (the plain
tiff’s act raises no equity for the re
duction of a debt contracted before
said war.
Judgment reversed.
Warner J. concurring.
If the act of IS68 allowing ' defend
ants to give in evidence the destruction,
or loss of the property upon the faith
of which the credit was given,and how,
and in what manner, the piopertj' was
destroyed, or lost, in a suit upon all
contracts for the payment of money
made prior lo the 1st day of June, ’65,
be a valid and constitutional law, and
tne evidence authorized by it be legal
and competent evidence, to besubinit-
lo the jury as a lawful defense to the
plaintiff’s demand, and iflhejury upon
the consideration of such evidence,shall
reduce the plaintiff’s debt as to them
shall appearjust and equitable ; then,
the verdict in this case, reducing the
plaintiff’s debt one-half, was right
under the evidence authorized by
the act for the consideration of the
jury—and ought not to be disturbed ;
but that act, in my judgment, being
unconstitutional, and void, and the ev
idence authorized by it constituting no
legal or valid defense to the plaintiff’s
demand, I concur in the judgtnent of
the Court, in reversing the judgment of
the Court below.
Lanier & Anderson, for plaintiff in
error.
S. II unter, for defendant in error.
J. W. Childers, vs. George West.—
Bill of demurrer, from Floyd.
McCAY, J.
Where a bill was pending against
an administrator for an account of a
trust confided to liis intestate, and
there was an amendment enjoining the
widow from proceeding to final judg
ment on certain proceedings instituted
by her lo obtain money in lieu of dow
er, and the matters in the bill and an
swer by agreement, and under and or
der of the Couri were submitted to one
of the attorney’s on each side, and an
umpire, who met aud found a certain
large sum due to the complainant, and
also reduced the amount coming to the
widow in lieu of dower, as found by
the duly appointed commissioners, and
their award was at the next term made
the judgment of the Court in the ab
sence of the defendant from this State,
and in the absence from providential
causes of his counsel, other than his
arbitrator, and in the absence also of
the counsel of the widow for providen
tial cause.
1st. Held : That a bill for review
for setting up these facts, and charging
that the referees had made a gross mis
take in calculation, and had acted con
trary lo law in charging the intestates
with certain notes as cash, which he
had not in fact collected, and which
had been lost without his fault, is prop*
erly filed against the complainant in
said original bill, and il demurred to,
the demurr ought to have been over
ruled.
2d. Held further : That the referees
had no right under the reference to
lessen the amount of the widow’s dow
er.
Judgment reversed.
Smith and Braham, Underwood, and
Rowell, for plaintiff in error.
Alexander and Wright, for defend
ant in error.
Chas. H. Smith, adm’r, et. al., vs. An
na E. Smith. Dower, lrom Floyd*
WARNER, J.
Where the widow of an intestate,
elects, after a fair and public sale of
his lands, to take an amount of money,
absolutely in lieu of her dower therein,
as provided by the 1761st section of
the Code.
Held : That the amount of the sale
of the land, at such public sale, is con
clusive evidence of the value thereof,
and that the widow is entitled to
have dower estimated out of the pro
ceeds ol such sale, from the death of
her husband and the value of her life
estate, estimated from that time during
her life.
Judgment reversed.
Thos.W. Alexander, B. H. Hill,
Printup & Fouche, for plaintiff’in er
ror.
Wright & Broyles, Branham, for
defendant in error.
ation of which is a slave or the hire
thereof.
Judgment reversed.
Brown, C. J., concurred as follows :
1. The pavee of a promissory note
given for% slave, who for a valuable
consideration, which was no way con
nected with the slave; indorsed and
delivered the note lo the plaintiff', is li
able. The endorsement is a new con
tract and the Court has jurisdiction lo
enforce the judgment against him on
that contract.
C. B. Wootten, D. A. Vason, A.
Hood, for plaintiff'in error.
F. M. Harper, W, A. Hawkins, for
defendant in erro.
Samnel T. Payne, plaintiff’in error, vs.
Mary H. Payne, defendant in error
Hebeas Corpus, from Floyd.
BROWN, C. J.
In a contest about the possession of
two minor children, between the moth
er and the testamentary guardian, who
is the grand father ; when il is shown
that one of them is only three years
old, and the*other, one year old, and
still at the mother’s breast, this Court
will not upon the case made by this
record, control the discretion of the
Court below, whose judgment is in fa
vor of the mother’s right to their custo
dy ; till the period arrives when il is
proper that the testamentary guardian
take possession of the .minors for the
purpose of their education.
Judgment affirmed.
Underwood & Rowell for plaintiff in
error.
Alexander & W r right lor defendant
in error.
PI PORTA S'FDECISION.
UNITED STATES DISTRICT COURT,SOUTH
ERN DISTRICT OF GEORGIA.
The bankrupt is en titled to the exemption
of a homestead out oj land mortgaged by
him, to secure the payment of borrowed
money prior to the time of claiming such
homestead.
Julian A. Jones, vs. Charles Morgan.
Jurisdiction as to slave note, from
Sumter.
WARNER. J.
When it appeared from the record
that an action of trover and conversion
was pending in the Superior Court of
Sumter county,for the tortious conver
sion ol certain negro slaves in the year
IS50, and that the plaintiff and defend
ant had fraudulently settled said suit
with notice of the claim of the plain
tiff's attorney’s lien for his fees, due in
said case, and on motion of defendant’s
counsel, the. Court dismissed said suit
IN RE JAMES E. BROWN.
1. Franks. Hesseltine, a Register of
said Court in Bankruptcy, do hereby
certify that in the course of the pro
ceedings tn said cause the following
question pertinent to said proceeding
arose and was slated, and agreed to by
Arthur Hood, Esq., counsel tor the
bankrupt, and T. K. Appling, Esq.,
who appeared for Hamilton Ferry, ad
ministrator of the estate of Elam Lee,
a creditor of the said bankrupt.
On the 13th day of January, 1860,
James B. Brown executed a morlgage
upon a lot of land, with hotel and sta
ble, in Blakely, Georgia, to Elam D.
Lee, executor of Elam Lee, to secure
the payment of money loaned.
On the 5th day of May, 1868, the
said Brown filed his petition lo be de
clared a bankrupt. The said land is
the only real estate returned by said
bankrupt, and is worth more than five
hundred dollars. He claims an allow
ance of five hundred dollars for a home
stead out of the proceeds of the sale of
the said property, which claim is reg
istered by the said creditor. And the
said parties requested that the issue
thus raised should be certified to your
Honor for your opinion thereon.
OPINION OF THE REGISTER.
The question here submitted is, “Is
the bankrupt entitled to a homestead
out of property mortgaged by him to
secure the payment of horrowed money
prior to the time of claiming such home
stead ?
In Re John B. Whitehead your
Honor affirmed my opinion that the
to alienate or encumber the property
exempt under this law, but the same
may be sold by the debtor and his wife,
if any, jointly with the consent of the
court of the county,” See. Bv this it is
provided that an officer shall not levy
on and the debtor shall have no power
to alienate or encumber the property
which has been duly exempted, i. e. set
part and recorded in court, in accord
ance with the provisions of the law.
The power to alienate or encumber
the property which has not been duly
exempted is not taken away from tlie
debtor. It is a natural subsisting right.
He can deal with his own property as
it pleases him; and the lien of a mort
gage giv. n by him for a good consider
ation is unquestionably valid and binds
the property. It is a contract his obli
gation to keep which may not be im
paired by any subsequent act of his, or
by any law. Since, then, the law no
where denies the head of a family the
right to sell or encumber property which
has not been set apart in accordance
with the homestead art—and this nat
ural tight is his until taken away by
statute—he surely will not be permitted,
having borrowed money on the strength
of a mortgage legally given to the cred
itor, to secure the payment of the same,
thereafter to invalidate his mortgage
by pulling in a claim to have the lien
of it discharged, and the properly set
apart to him* for a homestead. This,
as 1 view it, would be a wrong that
neither a court of law or equity will
uphold or sanction.
The mortgage contract, solemnly en
tered into by permisssion of law, must
receive the approval and aid of the law.
Respectfully submitted,
Frank S. Hesseltine,
Register in Bankruptcy.
Erskine, J.
Mr. Register Hesseltine, in his writ
ten opinion, on the question which arose
before him in the course of the proceed
ings in the matter ot James B. Brown,
a bankrupt, relied on the case of John
B. Whitehead, as being analogous in
principle, il not wholly governing the
case for Brown.
In the case ol Whitehead, the point
lor decision was whether the bankrupt
was entitled to the exemption claimed
out of the land mortgaged by him to the
vendor, at the lime of the purchase, to
secure the purchase money.
There the equitable lien of the ven
dor was involved ; and notwithstand
ing the vendee gave a mortgage on the
land to the vendor—executed simulta
neously with the purchase—I was of
the opinion, on principle and authori
ty—and in entire consonance with the
conclusion expressed by Mr. Hessel-
line—that the vendor, by taking the
mortgage on the land alone, did not
waive his lien; and affirmed the de
cision of the Register, denying the ex
emption out of the land—land he had
never paid tor, and for which he was
merely the trustee fore the vendor : In
re, John B. Whitehead, 2 Bankrupt Reg
ister, ISO. S. P. lure, Lindsey Per
due, Id. 67, 2 Story, Eq. Jur M sees.
1227, 1228 4 Kent, 151, 9 Ga., SG, 14
Id. 216, 5 Ind. R., 492.
Biown’s case is briefly this : He was
' the owner of a hotel and stable lot in
Blakely; these in January, I860, he
mortgaged to E. D. Lee, executor of
Elam Lee for money loaned him by
the executor. In May, 1S6S, Brown
filed his petition in Bankruptcy, includ
ing in his schedule the mortgaged prop
erty, it being all the real estate he own
ed. He now claims to be allowed out
of the proceeds of the sale of this prop
erty when sold, it not being (as was
agreed by counsel on both sides) sus-
to the exerrp- ; ce f ,lible of partition, five hundred dol-
land morteair-1 lars in Iieu of a 1] °mestead. The
bankrupt is not entitled
lion of homestead out of land mortgag-j ! ars In *'. eu ot a b° m estead. The
ed by him at the lime of its purchase i/ an ' ru P l ‘ s j^ e kefid ot a family, and
to seeute the payment of the purchase j Ia ' s fkrge minor children,
money until the said mortgage is sat-1 , ^ need scarcely remark, that in
isfied. tSee Bankrupt Register, vol. 11, j ^ eor g‘ a » a mortgage is security for the
page 180. In the course of that opin- <le ^ l ~ aml noth,n g ,nore 5 title to,
ion 1 stated “that the debtor who seeks I a,ul ownership of the properly remain
ing m the mortgage until foreclosure
and sale.
From what 1 have
to have a homestead set apart for Inin-
self and family must first have a full
and complete ownership and title to
the properly; it must be entirely his
properly, unsaddled with any encum
brance, lien or condition affecting his ti
tle thereto.”
* * * “The Code does
not deny the head of a family the right
to create a lien on property not previ
ously exempted in accordance with the
provisions of the homestead act. He
is free to do what he will with his own,
convey or mortgage it.”
Alter renewed consideration of the
for wantof jurisdiction against the plain- law rclalit’g to the exemption of prop-
n ’smnnsel. erty, I do not desire to vary that lan-
tiff s counse
Held : That the counsel of tiie plain
tiff had Lhe right to prosecute the suit
against the defendant, for the amount
due him for his fees in that case, pro
vided the plaintiff’in the action is enti
tled to recover anything from the de
fendant and that the Court below erred
in dismissing the case.
Judgment reversed.
Hawkins & Burke for plaintiff’ig er
ror.
J. J. Scarborough, by John J. Clarke
for defendant in error.
William Graham, vs. John McGuire,
John B. Crim. Motion to set aside
judgment, from Terrell.
The endorsement of a note, given for
a slave, if the endorsement is for a val
uable consideration, other than a slave,
or the hire thereof, is not within that
part of the Constitution of this State,
denying jurisdiction to the Courts
thereof to enforce a debt, the consider-
guage, and re-utter it here as a reason
why I think that James B. Brown, the
bankrupt, is not entitled to a homestead
out of land upon which, by his mort
gage, he has already created an “en
cumbrance, lien or condition affecting
his title thereto.”
The Code of Georgia, after designat
ing the properly to be exempt to a
debtor who is the head of a family,
goes on to slate the course to be pur
sued by “every debtor seeking the ben
efit of the act.” A claim for the ex
emption ot the properly is to be made
and recorded in the clerk’s office, the
land must be laid off and a plat of the
same likewise recorded.
Further on, section 2019 of the Code
declares that “Any officer knowingly
levying on or selling any property of a
debtor exempt under this law, a sched
ule of which has been returned as required,
is,guilty of trespass,” See., and section
2020, “The debtor shall have no power
said, I think it
will be readily observed that there is a
clear and very marked difference be
tween the casts, of Whitehead and this
of Brown.
Turning to Cobb’s Dig. 390, ii will
be seen, that by the act of 1843, which
is amendatory of the act of 1841, Id.
5>9—-filty acres ol land arc exempt
Rom levy and sale, “except the same
shall be for the purchase money of said
land, for the payment of which the
land shall be bound.”
The act ol 1845, Id., 3ffl, extends
the humane and equitable benefits of
the preceding acts lo citizens of any
city, town or village in the State, “to
include real properly in such places
not exceeding in value two hundred
dollars.”
Thus stood the law when the execu
tor of Lee received from Brown the
mortgage on the hotel and stable lots.
And can the executor of Lee now com
plain of Brown, and did he not lend
the money and accept the mortgage,
under the law exempting a eertain por
tion of the property of the debtor from
levy aud sale ?
By the provisions of the act last
cited—the property being situated in a
town—Brown would have been en
titled to an exemption of two hundred
dollars only. But he now claims to be
allowed five hundred dollars out of the
sale of the mortgaged premises, under
the act of Congress of March 2, 1867.
Section fourteen of this act, in enumer
ating what shal be expected from the
