Southern recorder. (Milledgeville, Ga.) 1820-1872, December 28, 1869, Image 1

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Newspaper Page TextB- MILLEDGEVILLE, GEORGIA, TUESDAY, DECEMBER 28, 1869. No. 52. Ivl- O i-C 3N/H 13 <Sc SO 1ST, editors axd proprietors. . n i<—j >,03 ysr iinn(im, in Advance. ,i ris i ng—Per square often lines, each I >10. Alerciiauts and others foiall 3 j ver 3 25, twenty-five per cent.off. legal advertising. i.i (n/s.—'Citationsfor letters oi ad- ition ,guardianship ,&c $3 00 2 00 5 00 , .4 notice ' .. itiuutorletners of dism’n fromatlm’n , Ion tor letters of dism’n ofguai u’n ,.;,, a tor leave to sell Land .. t > iJehtors and Creditors ,£ i. -.il. per square of tea lines , t oorxonal, per sq., ten days If;!-—Each levy of ten lines, or less.. ,.ve sales of ten lines or less [•,factor’s sales, per sq, (2 months) '^ — foreclosure of mortgage and oth- 3 r>o r> oo 3 00 r> oo 1 50 2 50 5 00 5 00 Trioi -s-,Vt X j per square ] 0 liirtydays J 0 s.icct. Resolutions by Societies ■ •receding six lines,to be charge it i Ivertising. ,l.>t of Eaiid, by Administrators, Execu aardians, are required by law, to be held r st Tuesday in the month, between the • u | i the forenoon, and three in the af- io Jo irt-Ii uise in the county in which . r y i s situated. • ,>!Th J se sales must be given in a public 1 i i i ys previous to tile day of sale. . t'jI, lie sale of personal property must be manner 10 days previous to sale clay 0 i ; htors and.-creditors of an estate J bo published 40 days. •, fiat application will be made to the ,t Ordinary for leave to sell land, must be i.lshed for two months, t/ioas for letters of Administration, Guar Arc.,inustbe published30days—fordis t'ro.n V 1 iiu'.istratioh, month!y six months ; ,lisinissioii troin guardianship, 40 days. J 's for foreclosure of Mortgages must be Visaed ninthly for four months—for establish I l3t i ipers.for the fullspaceof three months— ,, m Jelling titles froin-Executors or Admiuis- u s/wliere bond has been given by the de ted! the full space of three months. Charge, „j ,i.>r square of ten lines for eachiusertioa tJ ...■ itioos will always be continued aecoru a ,s i, tiie ldgai requirements, unless oth is. ; ordered. :lll> S > jjjuiiVV JJ JJjliU X j-Lij iuA, 4i Thiid fetieet, Macon, Gcoigia. Ivl ail Alfa, c t.'ur ers or S a J d i c^s, 11 a f a c s s, C o 11 ;i r s ,& c. A.ZZD S IlVaoIesaleland liotail Dealers _t. i N * paddlery,|i2ardwarc, J2cols olg. -g:o- JOHN HARIG, SAVANNAH, GA., WHOLESALE &. RETAIL DEALER IN Fine €Jantlies 9 FRENCH CONFECTIONERY, Chocolates, Fruits, Nuts, Syrups and Cot dials. Foreign and Domestic doys and fancy Goods.— Fin and Mechanical Toys, Chi na, and IV,tx Dolls and Doll Heads. China Vases anil Ornaments, ' RUBBER GOODS, Accordeons and oilier Musical Instru ments. Culler}', Pocket-Books, Work-Boxes, Dressing Cases, Fancy Baskels, Willow- Ware, Fire-Works, &c., &c., &c. A line TuflVs Arctic Soda Fountain with finest Fruit Syrups. II? 3 Orders from the Country promptly attended to and solicited. Our motto is, fair dealing and good goods. Corner of Broughton & Whitaker Streets, SAVANNAH, GA. April 20, 1809 16 tf SMjwr-J • ~ Harness, Skirting, Lace, Sole, Upper, -Belting, Patent an-i Enameied Hoainer, Enameled Cloths, Cad and Lining Skins. ta—1>—-it Our Saddles, Harness &c.,lare ot our own_Aian- utacture ; and we refer to those who have used our work, concerning its merits. fo Manufacturers, we would say : Our stocn of Laatuer and Other Goods in our nue, is Lii’ge, and we aim to please in Price as well as We otter a great variety of Whips, from winch the most fiStiuious catuio. fail to niake a selec tion. As also, ilorse and Saddle Blankets, Bug gy Mats, Ac. Vipilii:- II ft-'*, ■T-i * Tsirl-i':* 3 . V'!;' ;• .-sf ; : Vl. . 'I 11 ’ . ’ I fogSjfe mm I’.Vkfy 4jr!K’i "Our Patent Adjustable Plough Back band, commends itself to the Planter, by its being adapted to large or small animals, and obviating ’lie necessity of moving it to the loins, when shal low ploughing is desired. . We buy Hides, Furs,^Wax,* Wool, Moss and Tallow. September 28, 1869 39 3m Frost, iBlaok Oo., d holesale A Retail Manufacturers of A Dealers in FIRST CLASS Furniture OF EVERY VARIETY. 09 BOWERY, near Canal St., N. Y. STEAMBOATS, HOTELS AND PDBLIC BUILDINGS, Furnished at the Shortest Notice, All goods purchased of oar house guaranteed as represented. k. W. Frost. Jas. Black. Geo. Snyder. September 21.1869 3m F)r. Gr.WV JO 3NT 2E S, &ie.s.LcLeJzt (D)ejitL&t ALL DENTAL opera tions performed with skill and care. Artificial teetii ‘inserted inallstylesknown ' to the profession. Old cases, not comforta bly worn, can be made so. Did Gold Plates taken iu partpaymentfor Deu- >1 operations. ^ R^Odlee. East. Rooms Darien Bank building. Milledgeville Oct. 13, 1868, 41 tf THE 1IAS0X & HAMLIN ORGAN C(), WINNERS OP THE PARIS EXPOSITION MEDAL, Who have uniformly been awarded HIGHEST HONORS At Industrial Exhibitions IN THIS COUNTRY, So that their work is the acknowledged standard of excellence in its department, respectfully an nounce that, with extended and perfected facili- ies, and by the exclusive use of recent improve- m -ats, they are now producing yrt more perfect Organs than ever before, in great variety as to ie and price, adapted to ail public and private s: for Drawing Rooms, Libraries, Music Rooms, Concert Halls, Lodges. Churches,Schools, Ac , in plain and elegant cases, ail of which they are enabled by their unequalled facilities for man ufacture to sell at prices of inferior work. The recent improvements in these Organs have so increased their usefulness and popularity that they are unquestionably the most desirable in struments obtainable for family use, as well as Churches, Schools, Ac., while the prices at whieh they can be afforded ($50 to $1,090) adapt them to the means and requirements of all classes.— They are equally adapted to secular and sacred music, are elegant as furniture, occupy little space, ars not liable to get out of order, (not requiring* tuning once where a pianoforte is tuned twenty times) are very durable, and easy to learu to play UJIOU. TheM. & H. Organ Co. are now selling FOUR OCTAVE ORGANS for $50 each; FIVE OC TAVE ORGANS, FIVE STOPS, with two sets of VIBRATORS for $125, and other styles at proportionate rates. For testimony to the superiority of their Organs, the Mason A Hamlin Organ Go respectfully *re- fer to the musical profession generally ; a majori ty of the most prominent musicians in the coun try, with many of eminence in Europe, having given public testimony that the Mason A Hamlin Organs excel ail others. A circular containing this testioiony in full will be sent free to any one desiring it, also a descrip tive circular, containing full particulars respect ing these instruments, with correct drawings of the different styles and the lowest prices, which are twted and invariable. Address THE MASON A HAMLIN ORGAN CO., 590 Broadway, New York; J54 Tremontst., Boston November 30, 1869 48 3t A PROCLAMATION. Greorgia- By RUFUS B. BULLOCK, Governor of said State. To the People of Georgia: The recent renewal of active hostilities against the person and property of colored citizens and white Republicans by the organized bands of secret as sassins in certain portions of tiie Sfaie, seems to indicate a concei t of action and uJ^Drpose on the part of said organizations to persisTiu defying the civil law. It therefore behooves the good people of this State to see to it that the commonwealth be not further injured and defamed by the acts of per sons who, it is believed, are wholly without inter est in, or regard for, the welfare of the State. It is the duty of every county, town, or muni cipal corporate authority to ensure perfect protec tion for life and property to every resident within their borders; and, whereas, in many cases, the local officials fail to exercise efficient means to se cure this result, the good citizens within such limits—those having a material interest at stake, or the best interest of the State at heart—should see to it that prompt measures are at once taken under the civil law to arrest and bring to punish ment the members of these organizations of se cret robbers and assassins. Under the statutes at present in force, the Executive is prevented from taking active measures for the suppression of civil disorders, and it is therefore all the more important that every good citizen should feel it his individual duty to become a peace officer, and to aid in securing to every inhabitant that perfect protection guaranteed by the Constitution, and without which We can never enjoy either civil lib erty or material prosperity. Outrages such as have heretofore and are now again disgracing our State, cannot be tolerated or excused without involving the whole community. The time has arrived when these outrages must cease, or the good people of the whole State will be held responsible for their continuance. To the end that no motive may be wanting to stimulate the people to action in bringing to pun ishment the violators of the law, I hereby offer a reward of FIVE THOUSAND DOLLARS each for the arrest, with evidence to convict, of the person or persons engaged in the murder of Hon. Joseph Adkins, white, a Republican Senator of the 19th District. And of the person or persons engaged in the murder of Dr. Benjamin Ayer, white, a Republi can Representative from the county of Jefferson. And of the person or persons engaged in the outrage committed upon the person of William Hardeman, white, of the county of Oglethorpe when, on or about the 31st day of October last, he was tied to a tree aud brutally whipped, the out rage having beeu committed by a body of dis guised men for no other reason, as is alleged, than that Hardeman was charged with being a Radical. And of the person or persons engaged in the outrage committed upon the person otHoa. Abra ham (Joiby, colored Representative from the county of Greene, who, on or about the 30th day of October last, was taken from his bed at night and cruelly beaten, the outrage having been com mitted by a bpdy of twenty-live or thirty disguised men for the reason, as is alleged, that he, the said Colby visited Atlanta and requested of the milita ry authorities protection for the freediuen’s school, located in the town of Greeuesboro’, in the county of Greene. And of the person or fpersons engaged in the Xiove of Country and of Home. There is a land, of every land the pride, B -loved by heaven o'er all the world beside; Whore brighter suns dispense serener light, And milder moons imparadise the night; A land of beauty, virtue, valor, truth, Time tutor’d age, and love exalted youth. The wandering mariner, whose eye explores The wealthiest isles, the most enchanting shores, Views not a realm so bountiful and fair, Nor breathes the spirit of a purer air; In every clime, the magnet of his soul, Touch’d by remembrance, trembles to that pole: For in this land of heaven’s peculiar graee, The heritage of nature’s noblest race. There is a spot of earth supremely blest, A dearer, sweeter spot than all the rest. Where man, creation’s tyrant, casts aside His sword and sceptre, pageantry and pride, While, in his soften’d looks, benignly blend The sire, the sou, the husband, father, friend. Here woman reigns; the mother, daughter, wife, Strews with fresh flowers the narrow way of life; In the clear heaven of her delightful eye, An angel-guard of loves and graces lie; Around her knees domestic duties meet, And fireside pleasures gambol' at her /eet. Where shall that land, that spot of earth be found ? Art thou a man ? a patriot? look around ; Oh! thou slialt find, howe’er thy footsteps roam, That land thy country, and that spot thy home. ZOE. THE ORPHAN CHILD. At midnight’s hour in a darkened room, Sat* motherless girl sad and lone ; Her pale cheek told of its withered bloom And her dark eyes wonted light was gone. Sho thought of her mother’s pale sweet face. That the cruel grave had hid from her sight And the great sobs burst from their resting place, And her future seemed as one long night. She rose and went to her lonely couch Where lay a lovely orphan child, Aud bending low its lips to touch, The infant woke aud sweetly smiled. Clasping it close to her throbbing breast, She lulled the little one to sleep, Aud as sho laid it down to rest, It said ma via, aud seemed to weep. She turned and bent her wearied head Upon the casement cold and drear, And wondered if her mother dead, Would still watch o’er her children dear. Then list’ning to the wind’s low sigh That murmured gently ia her ear, She slept ’till the morrow’s sun was high, Then woke without a sigh or tear. She closed her sacred source of woe. Nor would by dear friends he consoled, They often asked why this was so, And oftener called her proud and cold. 1 An Extraordinary Story—7Te Most Remarkable Father and Son.—A tnosl remarkable case of consanguineous af fection and sympathy is that of a father and son living in the adjoining count}’ of Fleming. The father is tibout for ty five years of age, aud the son is not yet twenty. When one has any com plaint the other is similarly affected. If the father has the headache the son has it at ihe same time ; it one suffers with the toothache the other also suf fers with it ; when one gets a cold the other gets it also, and so it goes on through all the catalogue of ordinary complaints. But yet more remarka ble still is the similarity of their appe tites, temperaments, and general ac^ lions. What one likes and eats, the other likes and eats; and what one dislikes and won’t eat, the other dis^ likes and won't eat. If one. becomes angry, or gloomy, or happy, to the same degree and at the same time is the other angry, or gloomy, or happy. They sneeze at the same time, sleep at the same time and the.same number of hours, and the most remarkable of all, they dream al the same time, and the dream of one is the same as that ot the other. We might go on and enu merate many other instances of the relationship existing between this fa ther and son, though the above are sufficient as showing how strange and DECISION’S OF THE SUPREME COURT OF GE0RGI1 Delivered at Atlanta, Tuesday Dec. 14. [reported expressly for the con STITCTION, BY N. J. HAMMOND, SU PREME COURT REPORTER.] depredation upon the office ot the Assessor of In-1 O, gently speak to the orphaned one, ^ 3ft 31= ZMST G-.l? O UNT cv>* w/ XL E mrancf o O lyX IF* IBT IT . RICHMOND, VA. Persons desiring to insure their lives wil call upon R- M. ORME, Jr.,Ag’t. Milledgeville, May 19,1868 20 tt Low [Prices. W HITE DINNER SETS, NEW LIMOGE Shapes, 157 pieces, $25. Smaller size sets proportionately low in prices. WHITE TOILET SETS, 11 pieces, $3 20. WHITE TEA SETS. 44 pieces, $4 00. GOOD WATER-GOBLETS, per dozen, $1 50. GOOD WINE GLASSES, per dozen, $1 00. All other goods in our line eqnally loiv. Goods packed for the country, or forwarded by Express, <J. O.D. WASHINGTON HADLEYS, Middle Cooper Institute Block, Third atid Fourth Aves., between 7th and 8th Sts., NEW YORK. J'ST’ Send for Illustrated Photograph and Cata logue of Limoge Dinner, Tea and Toilet Sets, mailed free. October 19,1869 42 3m T. W. WHITE, ffLttafncif-at - d£am, MILLEDGEVILLE, GA., Will practice in this and the adjoining counties. ,1^* Applications for Homestead Exemptions under the new law, and oiher business before the Court of Ordinary, will receive proper attention. October 13.1868 41 tf Take Notice. * LL PERSONS indebted to Joseph Lane, or to Joseph cfc Win. N. Lane, are hereby no Pried that such claims must be adjusted on or before August, 1869, next return day,or they v ill CKKTAINLY be placed iu the hands ot an attorney for collection. We can no longer pay our liabilities with vague promises of debtors. Our debtors must have money. Forbearance has utjast ceased to be a vir tue; we therefore earnestly urge all who are in terested to come forward without delay, settle, and thereby save us the unpleasant duty, and themselves the expenses that must incur, of sne- ing out their claims. JOSEPH LANE. Milledgeville, Ga., June 8, 1869 23 tf ternal Revenue for the United States Government in the town of Washington, county of Wilkes, on or about, the night of the !3ih [instant, when, as is alleged, the office was broken open, and books, papers, &c., scattered and destroyed, and notices left warning the Assessor to leave the District. And of the person or persons engaged in the assault upon the house ef the Hon. Eli Barnes, colored, Republican Representative from the county of Hancock, when, as ie alleged, a body of masked men at or about the hour of 1 o’clock on the night of the 10th instaut, surrounded his resi dence and by threats of personal violence forced him to leave the county. And of the person or persons, who, at or near the hour of 10 o’clock on the night of the loth iustant, fired ten or twelve gunshots into a camp of colored laborers, on the line of the Ma- cfln & Brunswick Railroad, iu the county of Tel fair, whereby one than was killed and another se verely wounded. And of the person, or persons, who, on Thurs day night of ..Court week, October term, about midnight, said to be a body of sixty men iu dis guise, surrounded the residence of the Sheriff of the county of Hancock, demanded and obtained from him the keys of the jail and released from the jail one James Oxford, white, a notorious out law, awaiting his trial for the murder of John Taylor, a respectable citizen of said county. Given under my band aud the great seal of the State, at the Capitol, in the city of Atlanta, tins 29th day of November, iu the year of our Lord one thousand eight hundred and sixty-nine, and of the independence of the United States the ninety-fourth. RUFUS B. BULLOCK, Governor. By the Governor: David G. Cutting, Secretary of State. December 7, 1869 49 4t Haul in your COTTOJT AND HAVE IT Grilined & Tacked AT TIIE STEAM COTTON GIN ON McIntosh Street—West of Wayne, NvV'it.li Care &c. Speed.. Her griet thou never canst know, Let affection breathe in every tone, If thou wouklst soothe her greast woe. Your friend aud acquaintance, ZOE. Separate rooms for each lot of Cotton, (t?* First Comers first Served. Terms.—$ l 00 per hundred in the bale, or the Seed pays the toll. JOHN JONES. Milledgeville, Sept. 7,1869 36 tf HfflimvWMWSQiw* Dr. Holmes' Advice to a Young Phy sician.— Oliver Wendell Holmes, some years ago, wrote as follows to a young man who requested his advice about becoming a dot tor: My Dear young Friend: To be a physician the following requisites, if not absolutely necessary, are very de sirable: First—A sound constitution. The wear and tear are very great ; and cares, broken rest, irregular meals, and exposure of all kinds demand great stamina. Second—An unselfish nature. You must always think of your patient’s welfare, not of your own comfort or habits. Third—You must be content to wait a long time before you establish a pay ing reputation. Fourth—Much of your work being distasteful, wearisome, wearing to the body and almost fruitless to the mind, you must gradually harden yourself to ihe rouline, and for this you ought to have an easy and accommodating tem per. Fifth—You must be in constant fam- iliariety with seffering of all kinds, which must either make your feelings touch or keep you in distress. Medi cine is very exacting. I don’t believe much in literary doctors. I would not have one that was in the habit of scribbling verse or stories, or anything of the kind. Yours verv trulv, O. W. HOLMES. remarkable that relationship is!—Car lisle (Ky.) Mercury. Deacons in the Mediaeval Church—Their Sermons Corrected by the Priests.—Dea cons, during the middle ages, wore in France occasionally allowed to preach subject however, to the remarks and corrections of a priest, who for that purpose sat near the pulpit. The plan was 'designed to correct the faults of the youtn, and to prevent him from preaching heresy, but it must have ad mirably served to keep the congrega tion awake. What attention w-ould modern congregations manifest if they knew that the preacher would be oral ly corrected by a learned colleague whenever he halted in his logic or stumbled into commonplace! The process would not he without its ad vantage to youthful preachers, for it would supply the necessary correction at the moment the fault occurred. Mrs. Stanton says that she knows ofa rich lady in Michigan who made a will giving her husband a handsome annu ity as long as he remained her widow er. “It is evident,” adds Mrs., S., “that the poor while male, sooner or later, is doomed to try lor himself the virtues of the laws he has made for woman. I hope, for the sake of the race, he will not bear oppression with the stupid fortitude we have for 0,000 years.” Tbos. C. White and J. S. White vs. Wm. M. Haslett and Elbert llurker, Ex'r, etc. Motion to opetf judgment. From Elbert. Thomas C. White vs. Dillard Hern don. Motion to open judgment. From Elbert. McCAY, J. A judgment inter partes is conclu sive, as to all matters which were be fore or by the laws governing, the Court rendering the judgment must have in issue before it, and it is not within the power of the General As sembly, under the Constitution, to au thorize the opening of judgments so as to allow a rehearing of issues, which were, or by the rules of law, must have been heard by the Court rendering the judgment, but cross actions, equitable defences, and rights which have ac crued since the judgment do not come within this rule, aud it is competent for the Legislature to authorize ^tich de fenses to he taken advantage of bv a motion in the nature of a bill in equity, lo open the judgment, and adjust the rights of the parties according to such equities. Where the defendant in a judgment at law filed his affidavit under the act of 1803, for the relief of debtors, etc., in the precise words required by the statute, and the sheriff*returned the pa pers into court as therein required, it was error in the court to dismiss the affidavit without giving the defendant an opportuniiy to set up such cross ac tions, equitable defences, and rights accruing to him subsequent lo the judg ment, a's under said act are allowed to be set up in a motion to open the judg ment. The 2d and 7th sections of the act of the General Assembly of this State, passed in 186S, for the relief of debt ors and to authorize the adjustments of debts in principles of equity so far as it permits the defendant in a judgment lo open the same by motion and set up* defences thereto, which were or by the law at the date of the judgment must have been in issue before the Court rendering the judgment are in violation of art, Oth, sec. Gth and ofart. 1st, sec. 2Lsl, of the Constitution of this State, but so far as said act per mits judgments to be opened by mo tion so as to let in defences arising since the dale of the same, or cross ac tions and defences purely equitable, though existing at the said act is not unconstitutional, but is within the pow ers granted to the Legislature by the Constitution. White vs. Hem Ion, While vs..Ruck er. THE SNOW SHED LINE. IIow the Central Pacific R. R. is Built. Mr. C. C. Fulton, of the^Baltimore | American, in n letter from California BROWN, C. J., concurring, to his paper, gives the folldfring inter esting information concerning the snow sheds on the Central L’acifie Railroad. Fifty-five miies of snow sheds, con nected with forty-five of bridges and In rnv opinion the judgment of the Court in both these causes, which were argued together, was erroneous. I hold, 1. That when a parly is sued in a G. T. WIEDENMAN. In the New Building opposite the Hotel. HAVE JUST received a a nice selection of Watches. Jewelry, Diamonds, Clocks, Silver & Plated Ware, Guns, Pistols, Cutlery, Musical In struments & Walking’Canes. SPECTACLES fitted by the use of the Optimeter. Call and ex amine my Goods. I will show them to you with great pleasnre, and will warrant each article as represented. rip Particular attention paid to the REPAIR of tine Watches and Jewelry. Milledgeville, Oct. 12,1869 41 tf LOOK! HEBE. r£1HE BEST VINEGAR in the city, is for sale at L. N. Callaway’s, for $t per gallon. Milledgeville, September 7, 1869 36 tf What is Man ? Nothing. I cannot compare him to anything. His exist ence on this earth is momentary. Sci ence teaches us that in 6,300 years more, a grand deluge will end his race, and make him a fossil. You think this an idle tale, but it is not. Astronomy shows that the earth is os cillating in the angle of its axis to the sun in periods of 21,000 years. The zones are undergoing a constant change Now, at the North Pole it is growing colder each year, and al the South Pole warmer. Thus an immense ac cumulation of glaciers or icebergs at the North Pole will result, while at the South they will not form at all. In 6,- 300 years the glaciers will have accu mulated so much that it will suddenly overbalance the earth. Then the wa ters of the sea will rush from the South to the North, and there will he a de luge. The last deluge of which we have a tradition was produced in this manner, only the conditions were re versed—the South Pole becoming the heaviest. Formerly the poles were the equator ; now it is reversed. The same reverse will occur again, anil a ftew formation of land and water will result. I mention these facts lo show the insignificance of man.—A French Scientist. A New York country girl, on Iter way to church to be married, was upset and It is worth something to live among the broke her leg, bat would not have the limb -divorcers. The clerk of t.he county con- set until after the other bandage was put tabling Chicago, makes 5100,000 a y eat around her. • from fees and salary. tunnels, make up a total of one hun- court of law, lie is bound to make any 'legal defense which lie has against the claim of the plaintiff, anti if he is not prevented by fraud, accident, or the act of the adverse party unmixed with negligence oil his pait, and fads to make his defense, the judgment wheth er erroneous or not if not excepted to within the time allowed bv law, is con clusive against«him, and the Legisla ture has no power lo open it to let in any legal defense which exisled at the time of the trial. 2. A defendant sued at law is not bound, however, to set up a defense purely equitable, and a Court of Chan cery may grant an injunction in such case, before or after judgment; and 1 take it to be a correct principle that the Legislature may authorize any re lief in a court of law, which can be had in chancery without such legislation. But it must be such an equity between the parties as would be the proper.sub ject of equitable interference, as the in solvency of the plaintiff, the fact that he is beyond the jurisdiction of the court, or some other equitable defense or claim. In such case, I see no good reason why the Legislature may not authorize the equitable claim of the de fendant, to be set off against the judg ment of tiie plaintiff, or why it mav not authorize the judgment to be open ed for that purpose. This view of the power of a court of chancery to set aside or enjoin a judg ment, is sustained by numerous author ities. I quote a single one from the opinion of Judge Lumpkin in Pollock vs. Gilbert, 16 Ga., on page 403, as follows : “But when a case involves matter exclusively within the jurisdiction of equity, its final decision at law will not preclude a re-examination in chancery. Under such circumstances, the doc trine of res adjudicnla does not apply. For as the mattur in which the inter vention of equity is asked could not have been determined at law, it can not be within the estoppal of the legal decision. dred consecutive miles of covered rail road ! He says : “About ten miles from the summit track is cuL out of the solid rock, high up on the mountain sides, and winds around and up the sides of the various peaks, sometimes looking like as if it were a circling road around a vast chasm, the Humboldt River flowing along a thousand feet beneath. Here it becomes necessary to protect the track from the snow drifts, and the immense timber sheds commence. The reader can form no idea of the immensity of these structures, or the solidity and du rability that has been observed in their construction. They are in one almost unbroken stretch of fifty-five miles, and are capable of sustaining any amount of snow that may be drifted on to them, even if it should be forty feet deep as reported by some of the early pioneers. They extend over the whole length of the deep snow line on the dividing ridge. By this means the track will be as clear of snow irt the mountains as in the valleys They are so con structed that the. deep avalanches of snow that sweep down the mountains in the spring will glide over their roofs and plunge into the deep chasms be low. They have been erecled with a lull knowledge of the character of the drifts, and were tested last winter with entire success. The tunnels and bridges along this portion of the road are very numerous, and form an unbroken connection with the snow-sheds. The road-bed is blast ed out of the mountain side for a hun dred miles or more, and all who pass over this combined road, uniting the Atlantic with the Pacific, must accord the meed of praise to Calitiwnia ener gy. The Union Pacific; crossing des erts and prairie iands, had a compara tively easy por ! ion of the great work to accomplish ; but here every foot oi road had to be made by either filling or blasting. There are no plateaus here to cross except the Nevada des ert, and even it is bristling with up- heaved rocks or mounds of alkali mixed with a lava formation.” “The existence of an equitable de fense which coul^l not have been made available as a legal defense,* is there fore a sufficient ground for obtaining an injunction before or after judgment. 2 While & Tudor’s leading equity cases, 96.” And after reciting the cases ot Fos ter vs. Wood, 6 John’s cb. R. 89, and the Marine Insurance Co., of Alexan dria vs. Hodgson, 7 Cranch, 332, and Truly vs. Wanger 5 How. 141, these annotators continue. It is well settled in accordance with the rule laid down in these cases, that equity will interfere by injunction eith er before or .after judgment, whenevr the case is shown to involve matters purely of equitable cognizance, and es sential to its proper determination (Ibid, 97.) Upon a proper case being made, a court of equity will interfere to arrest the proceei i tg at law at anv stage ot it. Thus an injunction is some times granted to stay trial ; sometimes alter verdict lo stay judgment ; some times after judgment tostay execution; sometimes titter execution to stay the mcney in the hands of ihe Sheriff, if it be a case of fieri fasias ; or to stav the delivery of possession, if it be a writ of possession. 2 Wood’s lectures, 56 pp. 406, 407, 412, 410. 1 Mad. Ch. Pr. 109, 110 ; Eden on Injunctions, Ch. 12, p, 44. This is so complete nn epitome of the whole doctrine upon this subject, as dcducible from the opinions of Chan cellor Kent, in the case in 6th Johnson and of Chief Justice Marshall, in 7th Cranch, and of Mr. Justice Greer, in 5th Howard, as well as the general current of authorities, that we consider it useless to extend the discussion. Again on page 405, Judge Lumpkin says: “The general principle with regard to injunctions, after a judgment at law, is this ; that any fact which proves it to lie against conscience to ex ecute such judgment, and of which the party could not have availed himself in a court of law, or of which he might have availed himself at law, but was prevented by fraud or negligence iu himself or his agents, will authorize a court of equity to interfere by injunc tion, to restrain the adverse party from availing himself oDsaid judgment.” From these authorities, it appears that there is a class of cases where a court of equity may at any stage of the proceedings interfere by injunction and arrest the proceedings at law, even af terjudgment. And I am well satisfied that the Legislature has power to au thorize any such defense as might be made available in equity, to be made in the manner pointed out by the relief act, in a court of law after a judgment has been rendered. But I am not prepared logo beyond this, and hold that the legislature has power to authorize judgments indis criminately to be opened for causes of legal defense which existed, and which it was the duty of the defendant to havosel up before the rendition of the judgment. It does not appear from this record whether the defendant in this case had any such defense to the judgments* which he sought to have opened in the Court below. But having filed his af fidavit in compliance with the statute, it was the. duty of the Court at the first term, to have permitted him by proper pleadings, to set up such cause against the judgments if it existed; and I think the Court erred in dismissing the affi davits without allowing hirtft that op portunity. I will simply add that a judgment •nay, in mv opinion, he opened under the authority of an act of the Legisla ture to let in an equitable defense whieh originated since its rendition, if the ends ofjustice require it, and it would be against equity and good conscience tor the plaintiff to enforce the judgment. WARNER, J., dissenting. I am of the opinion that the judg ment of the Court below in refusing the motion to allow the judgment to be submitted to a jury for the purpose ot being opened, and the amount thereof reduced by their verdict should be affirmed. The second section of the Relief Act of 1864, which provides for the opening ofjudgments rendering bv the Courts on contracts made prior to the first day of June, 1865, for the causes therein stated, is, iti^-mv judg ment, unconstitutional «*jnd void. It is not only a violation of the 10th section of the first article of the Constitution of the United States, but also of ihe Stale Constitution of 1SC4. H. A. Roebuck, Jas. D. Matthews, for plaintiffs in error. E. P. Edwards, Hester & Lumpkin and Toombs, for defendants in error. Win. Runsbart, plaintiff in error, vs. Jesse E. Haiti, defendant in error. Rule to foreclose mortgage from Bryan. WARNER, J. When a motion was made in the Court below to open a judgment, on the ground that the defendant therein had tendered to the plaintiff SI,200 00 in Confederate money during the sec ond year of the war, and claimed the benefit of the Relief Act generally, which motion was allowed bv the Court. Held, that the defetular ment did not show any equ of defence which audio have the judgment opened and that the judgment of low should be reversed, a the judgment of reversal in this case,on the ground, that the second section of the relief act of 1S64, which provides for the opening and scaling judgments rendered prior to June, 1S65, not only violates the Constitution of the United

Georgia Historic Newspapers

Southern recorder. (Milledgeville, Ga.) 1820-1872, December 28, 1869, Image 1