Below is the OCR text representation for this newspapers page.

'■'■L. SUPREME COURT DECISIONS. South Carolina Railroad Company it al. va. lleury H. Steiner et al.; injunction from Augusta. LOCHRANE, C. J. This case cornea before the Court upon a bill of exceptions liled by both the par ties to the judgment of the court below. The authorities of the city of Augusta entered into a contract with these various roads by which they permitted them the use of a oertain street Known as Washing ton street, in Augusta, to run their cars to carry freight uud passengers through that city along that street. Several of the property owners on the street brought suits, at common law, for damages against the railroad companies. This bill was filed by the companies in the nature of a bill of peace, to bring all the parties into a court of equity, uud prays an injunc tion against them on the ground that they hod no right of action, this permis sion having been first granted by the municipal authorities of the city, and afterwards ratified by the Legislature of the Htate, alleging that they were in the exercise of their legal rights, and such rights were not the subject matter of a suit for damages, inasmuch os the act of the Legislature ratifying tho act of the authorities of tho city of Augusta, in giving the railroads tho right to this street, contained no provision for the assessment of damages for compensation. The court maintained the bill and re fused to dismiss it for want of equity, holding that it was in the nature of a bill of peace, and he could maintain jurisdic tion in it. Tho ruilroads excepted to his decision, on the ground that he held a right of action accrued to those parties. The others excepted on the ground tliut he hod fettered their legal lights with this illegal condition he had imposed upon them. We hold from tho facts disclosed by this record, That equity may tuke juris diction, by bill in the nuturc of a bill of peace, under section 3166 of the Code, and bring ull the parties, ploiiitiils and defendants iuto the forum and adjust their several rights by one decretal ver dict, and the enquiry upon the trial of such case will not only cover past, but future damages, so os to estop ull further or future litigution in or about the same subject matter, and operate upon com pliance with such verdict os a complete mvesture of the legal rights, free from further claim or damages to the railroads in their use of Wasbingtou street, Au gusta, for ruilroad purposes, withiu the legitimate scope of the legislative right granted to them. The controlling question mode by this record, and upon which all others hinge, is whether the railroad companies ure liable for damuges to the holders of prop erty along Washington street, iu the city of Augusta, by the use of the street by them for ruilroud purposes. This ques tion is one of vital importunco in its con sequences, uud in the adjudication of the principles involved in it. The previous decisions of this Couit upon questions arisiug under the use of the street, by those railroad companies, relieves the question of many uuxilliury subjects, and leaves it to be decided upon broad prin ciples of law. The fee to the street in question is conceded to be in the ytate. The city authorities of Augusta and the Legislature have granted this right to the railroad companies is equally ad mitted; that by reason of such legisla tion it is not a public nuisance has boon determined by this Court; that the act of tho Legislature makes no provision for compensation, or assessment of damages, iB a fact unquestioned. Ami the case therefore presents itself upon a naked legal principle as to whether tho use of a public street in an incorpo rated city, can be granted to railroads to rftu their cars over by steam power by the municipal authorities, nud when ratified by tho Legislature, will such municipal aud legislative permission prevent suits for damage against such roads by prop erty holders abutting on said street? And is the silence of such legislative act in regard to compensation a denial of tho right to claim damages at common law? The argumeut concedes that suit may bo instituted for damages by the lot owuers, if the me of the street by tho railroads denies to snob owners free ingress and egress to their property over and upon such streeta. Bat, it is contended with great ability, and upon a largo array of authority, thut in the absence of all statu tory provisions to tliut effect, no oase, and certainly no principle, seems to jus tify the subjecting any person, natu ral or artificial, iu the prudent pur suit of his own lawful business to the payment of eoiisoquoutiid damages to oth er persons in their property or business, lted on lUilways, ‘291 - -ana in support of this proposition cases are relied on de nied by this Court, 28 Geo, 418, and 34 Geo. 827. The basis of these recog nized principles is, that wlicro property of the individual is not taken for tho public use, the injury resulting from the legitimate exercise of a lawful employ ment, working injury, is <bimnum abstpte injur in. If the property were taken, the right to eowpeu8ution cannot be denied, for it is constitutionally guaranteed, und the Legislature limited in that respect. A very delicate question arises upon con struction, as to whether there can be a taking within the constitutional inhibi tion of rights and easements, which are a part of the necessary use, to tho full enjoyment of the property, w ithout com pcusation. If tho truck wy upon an inch of ground belonging to another, it is so sacredly guarded that uo power, State or national, could appropriate it. And yet, by the admission of the principle con tended for, a man may In* driven from his home aud household gods. Trains freighted and driven by steam, with the gusts of thick smoke through his win dows and screaming along iu Trout of his door, may alloc this health und destroy his pea.vtuf enjoyment of his proi>orty,‘and In* is remediless. Are not these equiva lent in the construction of law to a taking. Cooley’s Const. Limitations, a work of great ability and entitled, from its thorough anulysQtion of all the sub jects upon which it treats, to great con sideration, savs: “any injury to the prop erty of an individual which deprives the owner of the ordinary use of it, is equiva lent to a taking, and entitles him to com pensation." 0, C, L. 554,14 Corns. 140. THE DAILY SUN. Wuniiui Moenino ... August !43. SW" Few AdverUttmenlt alwajf found on Full Pam ; Local and But iuea Notiom on FornikPcyt. IS AFFAIRS. To Prim tort. TwIts nesspsper ebassa, suitable lot papers from 22x32 to 24x36, will be sold chtsr- Addrea J. Henly Smith, LI. Business Manager Sun. 32 shares tlsorgis Railroad Stock. T. A PilMSS, (Mb. Ptfisf tlM Mmmmj «f tfee Malt Wlthsst Authority Foster Blodgett and other officials of tbs Mats Boad under hia anperin tenden cy, hare bean retained in their places, drawing their salaries as such State Road officers, and receiving and using money doe the Bond ever since the Lessees took charge af it in Deoember last. (Our readers will reouileot that ltlodgett com plained of injustice being dono to him The Sum a few days ago, when we stated that this money bad gone into hit hands —a mere quibble; for, while making the complaint, he remarked that when the Rood was nnder his oontrol he never re ceived nor handled a cent of the money I) Now we have a question to ask which it seems to Wl, is important, whiohis this: Dy what authority has Foster Blodgett, r* Superintendent of the State Road, or any of the ex-officials, or ex-clerks of tliat Rood, been collecting or receiving money since the Lease, which wns due the Hoad before the Lease ? What right have they, or either of them to collect, handle, 'use, pay out, or disburse, the money due or lidungiug to the State, aliove that of any oilier private individ ual I What right have they, or either of them, to he “jirohmffittff" their tenns of office 7 We nil supposed their terms ex pired when tho Lease was made, on the 27th day of December last, and that the ouusiiuuuataou of the Lease under the law authorizing it, certainly tanuijintad the offices of all person, holding position* under State authority. And it seems to ns that all money which was due the State on accouut of the Road on the 27th day of Deccmlier last, like other money due the State, should be paid over to the State Treasurer, and be receipted for by him, just liko taxes or any other money due tho State. The law on tliis subject previous to the Lcnso is found in paragraph 1007 of Ir win’s Code, as follows : “ Tho proceeds of said Road after de ducting expenses and all debts which arc liens upon its income, ahull be )suil iuto the State Treasury monthly." We advise ull )>ortios indebted to the Rood to make )>aymcnts direct to the Htuto Treasury, taking receipts for the same. We are inclined to the opinion that the State Treasurer's receipt is the only lcgnl voucher which will stand tho test of law in saeh a ease. Wc further think it like ly that all who have heretofore mode pay ment to these ex-officials, are not at all discharged from their indebtedness, but are still liable to the State for the utter most farthing, and eon lie made to pay it. We further are inclined to think thut these ex-officials who have received uud disbareed the money so collected by them, can be form'd to pay it bock to the poraona from whom it was received, pay it into the State Road Treasury satisfaction of the claims which the State can bring against the original debtors who are now supposing they have paid all, bat are mistakent ■UOiainTIIM DKPBATBD AUAIN Th. aarpUil Wrltk.a la lu Afoul.. ■ dim Ham. Wm. Hoblw and Martha Johnson, of the late miscegenation caw's, convicted and sentenced by the District Court nt ita late semion, through their counsel, sued out a writ of halwas corpus, which, according to previous announcement, wus heard before Judge Enkinc yostonlay. We take great pleasure in chronicling the fact that tho hydra-headed monster cannot find a refuge in Georgia. Tho Judge full}- sustained the decision of HA. Sami Lawrence, who sentenced them a few days ago, holding that under the 14th Amendment to the Civil Rights bill. Section 1707 of the Code of Geor g“. which dochres that “the marriage relation between white persona and per tom* al Afrioau descent ia forever prohib ited, and sMh nurtures shall bo null and and void," is no violation of the supremo law of the land, and iloea not iu any way cribfNM wMi the Otvfl Rights lall. If the law of Georgia prohibits negroes from marrying white persons, it idso pro- hifajis White jfeapous irern marrying m- gtoes; So dl are on an equality before tho law. The prisoners were remanded to jaiL The ease was argued at length by R. H. Thrasher, of Mean Thrasher k Tkamlnr, —d I. K. Oglesby, for the re late**, and District Attorney W. O. Ir win, far the State. Aa soon Ms the decision was rendered, counsel far the relators took formal ex <WT*ioa to the daeiaion and gava notice of a« intention to sue out a writ of error to the Supreme Court of the United Staten Aa oar readers already know, the negro preacher who performed the marriage hntmaan the degraded creatures in this case, was indicted and found guil ty at the latp session of tho District C«niA The 1666th Bection of the Code ^dbiatas colored preachers to unite in persona of African descent only. MSJgMriia hia case was refused by , and hia eounael, Him Thrashers and Oglesby, have carried the case to the Supreme Court of Georgia. But the question involved, wc suppose, has already been odjudicoted by tliut tri bunal in the case of Charlotte Scott, 39th Go. ltep., 321, aud the one which is now carried up, we suppose to be ret ad- judicata. Since the case has token this course it is to be regretted that Judge Lawrence did not impose a heavier fine upon the preacher (Owen George)—it being only MO and costa. H tho Supreme Court, in all such coses aa tliis (where the point involved lnm already been decided) would strictly enforce the 4221st Section of the Code, and award 10 per cent to the de- iaat in error, the docket would be lea crowded with unnecessary eases. The Intermarrying of blacks and whites is revolting to all right-minded people. The negroes arc a distinct and inferior race. The Almighty has Indelibly stamp- od the brand of inferiority upon them. The commingling of blood does not ele vate the Inferior lint degrades the supe rior race, and tends rapidly to the ex tinction of posterity; nud the law which declares nil such marriages null and void is a wise one. The following is the decision of Judge grekinc: , It being the opinion of the Judge that Section 1707 of the Code of Georgia is not repugnant to the 14th Amendment of the Constitution of tho United States or to the Civil Rights trill, it is Ordered, That the Relators be and they are hereby remanded to the custody of J. O. Harris, jailor, und thut the Re lators jtay tho costa of the proceedings. John Euhki.nk, Judge. August 22d, 1*71. Mr. Fry returned to tho city volun tarily last evening, and is willing at once to make a full, fair and square settlement with the Statu for everything unsettled or unadjusted, with which he had any connection; and he also expresses the hope that others will, as promptly und voluntarily, do the same thing; and while he admits that he himself may have done some things not right, he asks a suspension of publio judgment till ho can havo u full and fair hearing before the oonntry; and is williug to ahidu by the decision of good people who will culmly oonsidcr the case with all the facts be fore them. M- Orloa Dasl.r’. N.w stand. Ho ofTera it for sulc. See his curd.— Here’s a chance for some one. Messrs. Wadley, White nud X’owers, distinguished ruilroud men, were iu the city yesterday. Peek, dc iHullta A Co. The ladies will Uud notices of this firm in onr Local and Business Column in teresting. How Much arc w. Wait'd I See Judge Fittmuu's curd this morning assoising tho per cent, uf comity tax upon tho State tax. If any ono desires to tuuko such a change, look at tho card of “Real Es tate," who can be addresaed at this of- fioo. Do Vow WMI If so, send them to Mr. Bouhoiiu. Sec his advertisement. He is a thorough scholar, aud a very successful teacher. We suw yesterday a private letter from Augusta in which it was stated that there were several cases of yellow fever in Charleston, and the people of Augusta were somowhat apprehensive of it ex tending to their city. Behai. A XVII.on. If you waut any agricultural imple ments, seeds of any kind, or any thing nooded on a plantation, eall on the above named firm. They are well established, have n good reputation for fair dealing, and will treat every one cleverly. Uivo them a call. A New Lift’ lii.Mi ffim c Coin|>u ny An Wo ask attention to tlio advertisement of the Mound City Life lusurauce Com pony, which has organized a branch of tho homo ofiico in Atlanta, with a board of trustees composed of a long list of our citizens, all of whom are policy-holders. German Lutheran ( linit ti, of Atlanta Rev. John Hekel, of Knoxville, Tonn. preached a mission sermon in this city on Sunday last, in Dell's Hall, corner Marietta and Broad streets. Through the inflaenoo of this distinguished clergy mau, whose missionary effort* among our Gorman fell<9w-citizens throughout the South have beeu crowned with great sacoesa, a committee was appointed by the cougregatiou present, consisting of Messrs. Johu Fiekeu, Eiseuhert, Chr. Kontz, H. A. Agrioolo, R. Agricola, Geo. Fisher, Kalb, Beu; A. L. Ehlera, and O. Palmer, to draft resolutions in referunoe to the permanent establishment of aGer> Lutheran Church aud school in At lanta. The committee appointed agreed upon the following rosoiaions: 1st That it is our steadfast purpose to establish in Atlanta a German Evangeli cal Lutheran Church, and school com bined. 2d. That for this purpose we recom end that a suitable minister be called to take charge as soon as practicable. 3d. That with the assistance of all those of our fellow-citisouH favorable to oar undertaking, a place of worship should be erected at the earliest possible date. 4th. The committee respectfully re quest the aid of all citizens in furtherance of thia object, and for this purpose the oommittee will them personally coll upon. But the idea suggested is that the Leg islature must have provided for the com pensation, our opinion of damages or mode of ascertainment And, again, while the grout of the right by tho Leg islature prevents tho act done from being regarded a nuisance, w e ore of opinion it is not a logical or legal consequence of such grant, that it may not inflict injury or damage. The admission of the one is uot the ni*cc8Hury exclusion of the other; and we, therefore, arrive at the conclu sion that when the State grants a right, tin* use of wliieh works injurv to another, and the law provides no inode of asses sing compensation for such an injur}*, tho right of Bait for damages, if any cun be proved, os we will hereafter discuss, is not taken away by such law. Now, by contract, purchase of prop erty on Washington Street, acquired, by ownership, a right to the free use of it for all purposes, and it make's no differ ence where the fee to the highway re sided. The use is the subject matter of disturbance. It will uot be doubted that u public street is for the use of the pub lic and all obstructions thereon are trespasses iu law, and in these days of progressive improvements, we ad mit th«* legality for public use of such stm ts, by laying an iron bar on them, to fucilitato conveyance by permitting cars to run over them. The enlightened opinion of the world recognizes this ap propriate use; and wo endorse the au thorities of Judges and Publicists on this subject We need not pause to notioe tho growing tendency of Courts to shield Corporations from all prejudiced sesaulte through tho forms of law. Monopolies aro evidences of civilization, aud invoke uo captious criticism at my hands. But, after a careful review of the au thorities presented, I am not satisfied that the use of a public street in a city by Steam jxjicer, is within the legitimate use of such street. I think the streets may be used, and bars laid upon them, and cars drawn over them by horses. But there is something in a locomotive jtoieer, in throwing smoke into the houses along the street, its tremendous weight shaking houses and breaking plastering and walls; and in the noise and screeching of whis tles, which, in the machinery employed, may make it the subject matter of injury, which the horse car, slowly driving along, would uot occasion. It is not in the use of tho street for cars, but the mode of use; and, os an original proposition, I gravely doubt tho right of any power to take a street, dedicated to public use for the citizens uud convert it iuto a railroad track, without the consent of the prop erty-holders thereon where it comes as an obstacle to a great thoroughfare, and* the law provides compensation. The right of eminent domain may be exer cised over houses or streets. But the Legislature of Georgia, in the grant of charters, never contemplated arbitrary going through towns upon the part of railroads. Nor can it be said that the citizen who buys property buys with knowledge, and by right cannot complain of the use of the street upon which it lies for any pub lic purpose, if by such knowledge he is to be held os understanding, the power to make a railroad track of the street is contciiiplated, tiuch use is not ordinary; uud when it is done by the Legislature, I am of opinion he bus the right of suit left; that he is not shorn of his right to complain and present his cose to the Court and country. But on the trial the most difficult ques tion still remains to be disposed of—as to what elements of dumuge may be given in evidence. From the view I entertain on the sub ject, I am satisfied the the rule ought to embrace the actual damage sustained of any from obstruction to the free in gress, and egress, and access over and upon the streets—inasmuch as the law has allowed the use of the street by steam cars, the passage over the street would not be in itself an obstruction, while reasonably exercised; and tho laying of tho iron rail upon the street, though it may create a jolt in cross ing, would not bo uu element of damage, for it lies there by direction of tho law. Nor would the apprehension of safety to children going out upon the street, nor tho possiblity of sickness in families, or any fanciful or speculative disturbance constitute an element. The damage which the law recognizes must be actual, something tangible aud determinable; and to arrive at this the occupation of the parties by which losses in scholars, or in trade, or the like hare been occasioned, would not be legitimate; but the actual depreciation oi tho value of property would be proper, und this depreciation not only from questions of access upon the street, but the noise, smoke, shaking of walls or plusteriug, and tho like, which can bo traced as effect to cause.— In coses of this kind damages are not given for feelings of parties, or tho fact that carriages might be injured by runaway horses, or that visitors are pre vented from coming to tho house, but must rest upou some solid, tangible inju ry. All consideration of sentimental in juries must be kept away in evidence and in argument from the jury. We therefore affirm the judgment of tho Court below so far as ho held jurisdic tion iu equity over the parties and sub ject matter, and enjoined tho suit at law, reversing the conditio.i required to be filed iu writing, and give direction to the trial covering all the equities and rights of parties, aud settling by one verdiot and apportioning the damages found, if any, among the various Hoads, and the past and prospective claims of damage to be settled and the Roads have, from com pliance with such verdiot, future indem nity. We deliver the following written opinion as the opinion of the Court iu this case: We hold, from the facts disclosed by this record, tlmt equity may tako juris diction by Bill in the nature of a Bill of Peace under Section 3160 of this Code, and bring all the parties, plaintiffs and de fendants, into the Forum and adjust their equities and several rights by one decretal verdict, and the enquiry npou the trial of such case to cover not only post but future damages, so os to stop all future or fur- tlier litigation in or about the same sub jeet matter, and operate as a oomploti investigation of the legal right free from further claim of damages to the Rail roads iu their use of Wasbingtou street, Augusta, for railroad purposes by steam power, within the legitimate scope of tho Legislative right granted to them upon their compliance with the verdict Held, That tho net of the municipal authorities, sanctioned by the Logistic tun*, gives to the railroad companies the right to use tho Htreot in controversy; but tho failure by the Legislature to provide for the assessment of damages, by way of compensation to the property owners on said street, docs not take away the right of the party to his suit at law for doum ges under Sec. 2692 of the Code. Judgment affirmed. WARNER, J., concurred. McKAY, J., dissented. Covington Dumas, Administrator, vs. F. 8. Pepper—Equity. LOCHRANE, C. J. Ih a bill filed to enjoin uu action of ejoctant and for specific j»erfonimiiee, it is not error to award the commencement and conclusion of such ease upon the trial, to the complainant’s counsel. Where the proof shows that the defen dant in the bill acted us agent of com plainant to piircho.se land, and that he had gout* iuto the poMefttfion of tin- hind at the time of the purclinse, and the an swer filed denies the truth of the allega tions as to their conclusiveness and effect, but admits substantially the charges, and the Court was not requested definitely to charge the jury what parts of the answer w*ere responsive to the bill, it was not er ror in the Court not to charge the jury as to what parts are or ore not responsive. Under the facts of this ease the verdict for sjiecific performance is snstuined by the evidence, und we ullirm the judg ment of the Court l>elow, with the in struction to mid interest thereto. Judgment affirmed with instructions. Edward McDomdd vs. Jacob Davis—In junction. LOCHRANE, C. J. Where suit was brought upon account and set off pleaded, involving a multi plicity of items, originating in three years dealings between tho parties and the de fendant, in such complaint filed his bill in equity to enforce specific performance in reference to a house and lot: Hold* That while u court of law has concuiiynt jurisdiction with a court of equity in matters of account aud will not be interfered with, unless for good rea sons, we think the reasons presented by the facts in this ease were sufficient to sustain the judgment of the Court below*. Where equity obtains jurisdiction, as in this ease, for specific performance, it will keep jurisdiction over ull the mutters, un til full und complete satisfaction is given to the parties. Under the Code compli cated and intricate accounts are properly matters of equity jurisdiction, where, by the aid of a master or auditor, the hear ing may be facilitated. Judgment affirmed. C. L. Mathews vs. Catharine Castleberry —Ej octant. LOCHRANE, C. J. Where, upon the trial of un issue formed under Section 2670 of the Code, relative to the genuineness of u deed, the instrument iu issue was over thirty years old at the time of the triid and come from the proper custody, with possession un der it accordingly, aud bearing upon its face evidence of its genuineness; Held, Thut such instrument proved itself aud did not need evidence of its signatures, and the issue raised under said Section of the Code does not apply to such instrument, und the verdict of the jury sustaining it is in accordance with law. Where, after tho finding of such issue tho causo proceeded to tho jury and the defendant shows that the deceased pur chased tho laud in 1850, and that ho went into possession in 1851, aud had exercised acts of dominion over it until his death, such as cutting timber and erecting val uable improvements thereon until his death in 1865. Held, thut the proof of possession wus consistent with the verdict of the jury, setting up a statutory title with a claim of right. Judgment affirmed. Held again, That while the use of a public street may be granted to railroads to lay b.qrs of iron ou to run over w ith trains, without cpdamaging the street by obstructions or embankments, yet if the use of locomotives inflicts injury upon those who live ou the street by throwing smoke through tho houses along the street, or by its weight shaking them or breaking the plastering, Ac., aud by the noise and screeching of whistles and engines the riakt to run onr the street does uot ipake such acts harm less, and the injury inflicted upou the legal rights of the isuties <i<annum absque injuria. Upon the trial the rule of evidence should ih* limited to octiud damage. The right to the vise of the street, with rP4»ouable obstruction in the passage of traius. is permitted by law, and is not au element of damage, nor is the jolting over the iron rail on element, Uor tho apprehension of tho safety of children, per possibilities in cases of sick ness, nor any in convenience to visitors not obstructing ingress or egress, nor any fanciful or speculative damages or sejjti mental injunos, are elements of damage. But the damage which the law recognizes must bo actual, tangible anil iletenni noble by proof, aud the depreciation of the projx'rty, not only from distractions to access, but by smoke, injury to walls, Ac., and traceable as effect from cause and the like, may bo inquired into to form the total of tho injur}*, Judgment affirmed, so far as equitable jurisdiction is sustained and the suits at law enjoined; reversing the condition re quired to be plead in writing. L. B. .Miller, et al., vs. W. Jordan, Guar dian. LOCHRANE, C. J. Where a verdict and a decree was had between the parties which was brought by writ of error to this Court, and the judgment of reversal upon the remittitur of this Court was upon notice to the par ties, mode part of the decree in the Court below, and a motion was made to set osido such order, which was overruled Held, that the effect of the reversal by this Court of tho judgment of the Court below, based upon a verdict of a jury, to grant a new trial, and it was error to abridge the rights of tho parties to this case upon a motion. Judgment reversed. Gilbert and Vason vs. Seymour, Johnson & Co—Commercial Law. LOCHRANE, C. J. The defendants were sued os drawers and endorsers on a draft not payable at any chartered bank. Two questions were made and decided by the Court below: First, whether the &rfcndants were enti tled to action to tnaro them liablo as* en dorsers. Second, whether the defendants were discharged as endorsers by the fail ure of the holder to give reasonable no-‘ tice of the non-payment of the draft by the drawee. The Court decide«l that no tice was not necessary, to which decision the defendants excepted. Held, that under the provisions of the revised Code of this State, the endorsers of this bill were uot entitled to notice of non-payment or non-acceptance to charge them as endorsers under Section 2739 of tho Code, In oqr opinion there wa9 no error in the Court below iu overruling the motion for a new trial on either ques tion in this bill of exoeptions. Judgment affirmed. The Atlantic & Gulf R. R. Company vs. Thomas Mann—Arbitration. McKAY, J. Where one who owned land fronting on a street in Buiubridge, uud the At lantic A Gulf Railroad Company submit ted to arbitration under the compensation clause of tho charter, the question of how much damages the lot-owner had receiv ed by the building of said rood through uoiil street; uud it appeared that the road had authority from tho State to run from point to point, which would carry it through this place; and had authority from the city authorities to run through said street; uud it further appeared that iu tact the road had not used the street, but hail gone through on private prop erty. Held, That the Court erred iu holding that the road had no authority to use the street; and iu holding that the road was estopped by its submission to offer proof; that in fact the street was not occupied. Judgment reversed. D. B. Harrell vs. HenryfU. Feag&n— Rule vs. Sheriff—Levy on partnership assets. McKAY, J. Where certain lands were leviod on as the property of defendant in fi fu, and he filed on affidavit of illegality, Rtating that the lands were the property of a partner ship company, of tlrhioh he was a ber; and also filed a claim in the name of the partnership to the lauds. Held, Under the Code, tho assets of a partnership, including lands, os well os personal property, are not subject to levy and solo under a judgment against one of the partners. His interest must be reached by process of garnishment against the firm; aud the Sheriff was not guilty of a contempt iu Court in reoeiv- ug the affidavit and claim, and ataying the proceedings. Judgment reversed. that all legal taxes dne on the note hod born paid, :t« required by tlic act of Oc tober 13, 1870. Second. It was proper on C’s applica tion to permit the declaration to be amended by stricking out B’s name as usee und inserting the name of C. Judgment reversed. W. A. Ramson vs. H. M. Jenkins—Re lief Act of 1870. McKAY, J. An affidavit wus filed by the plaintiff in a pemling suit on a debt contracted l»e- fore June 1st, 1805; which affidavit states that ;ill legal taxes chargeable by law on the debt hu> e boon paid for each year, since the piukiug of the debt Held that this is a substantial compliance with the act of Oetol»er 13, 1870, though the word “ duly” is omitted. Judgment reversed. B. O. Keaton, AdmT vs Jno. B. Milli gan Arbitration anJ award. WARNER, J. Held tliut the award was conclusive as to ull matters submitted to the arbitra tors, but it is doubtful, from the terms of the submission w hether certain mat ters were submitted aud passed upon bv the arbitrators, the Court should have ad mitted the evidence as to the facts of the ease anil then have charged the jury as to the law applicable thereto. Held also that it is competent for the defendant to have shown on the trial that the plaintiff hail not complied with the terms of the award in turning over all the property which he pretended to have purchased, and which the award author ized he defendant to deduct, inasmuch os the could not have impeached the award, but merely have shown a non- compliance therewith on the part of the defendant. Judgment reversed. E. McDonald A Co. vs. II. G. Feagan, Sheriff Rule vs. Sheriff. WARNER, J. This was u rule against tho Sheriff, culling on him to show cause why he had not made the money on certain distress warrants placed in his lumils, issued by a J. P. to enforce a factor’s hen, under 1977th Section of the Code, tho umount of each l>eing less than $100. The Court refused to grunt a rule vs. the Sheriff, on the ground that the Superior Court lmil no jurisdiction to ride a sheriff on such claims; Held, That under the Constitution, the Superior Court lias concurrent juris diction with the Justice’s Court where the amount churned is less tluui $100. Held, also, That under the provisions of the act of 1870, where aq execution has l>een issued by a Justice of the Peace to enforce a factor’s hen for a sum less than $100, the same may be levied by any sheriff of this State, or bailiff, on the property of tin* defendant subject to such lien, and when placed in the hands of the Sheriff’, he may l»e ruled in the Snj>e- rior Court for his neglect of duty in fail ing to execute the same. Judgment reversed. J. II. Hayward vs. Eusly & Rico. WARNER, J. This was au action brought ou a prom issory note. The defendants filed their plea, alleging that the consideration of the note wus negro slave. The Court examined a witness as to that fact, and dismissed the case for want of jurisdic tion, without submitting it to a jury. Held, That as the defence pleaded made a issue of fuct os to the consider ation of the note, that question should be submitted to the jury; anil it was an error iu tho Court to decide the facts and dismiss the plaintiffs action. Judgment reversed. Mr. LcComptc, the chief cook at the Kimball House, died yesterday. His body was placed in a metalic coffin and deposited in the cemetery, from whence it will be removed North. Mr. LeCompte was an excellent man. The hop at the Kimball House on Fri day night is to be a little ahead of any thing heretofore had. The music will be extra good ou this occasion, and the at tendance is expected to be unusually large. Mr. Ben. Kimball, agent of the Selma, Rome & Dalton Rood, is in the city, look ing after the interests of that road. It is one of the longest and best managed roads iu tho South—making important connections. It forms a portion of the “Great Blue Mountain Route” from New Orleans to New York. This road will be ono of the groat feeders of the Georgia Western Road. Th« Grrat Coast Line. At a meeting of the Chamber of Com merce ou Mouday night, Mr. A. C. Ladd, the agent of this line, made the offer of free passes over his line from Augusta to Baltimore for its members elect to the Commercial Convention which meets there this Fall Tho offer was as geuor- OU8 as the speech was handsome and ap propriate, uud the Chamber of Com merce showed its appreciation of the generous offer of the line to encourage the mercantile in their efforts to harmo nize and advance the interests of the pco- p 1 "., This liuo receives tho commendation of everybody that travels over it. Rev. D. Wills recently gave it his hearty ap proval, aud we are pleased to learn that travel over it is iucroosiug under tho vig ilance of Mr. Ladd. TLe Passenger Uvpot. We leurn authoritatively that the Pas senger Depot will bo well floored aud completed in a substantial wav ns soon as the material can be obtained.— This was decided yesterday by the Ruil road officers who are interested. We are glad to make this announce ment, anil know tho public will read it witli satisfaction. ftITPREMK COURT OF GEORGIA. The Court delivered its opinions in oases argued last week, after which tho Chattahoochee Circuit w^s token up. Argument wits heard ip Nqs. — Barnett A Co. vs. Block mar A Chandler—Assuxpp- sit from Muscogee. John Peabody and R. J. AIqsos for plaintiff* in error; Smith A Alexander, M. H. Blaudford for de fendants. No. 2 was withdrawn; it is Clarence Scriveu vs. Tho State—Demnrrer to in dictment from Mnscogeo. Moses A Downing for plaintiff in error; C. J. Thorutou,Solicitor General, for the State. No, 3 was taken up; it is Henry Me l.outtl und Buslnass Nollcc>i Mr- Obeat Haiioain^—For sale -two firat-rlasH Engines. Apply to Porter k Bntlcr, Machinists. Atlanta, Aug. 22-tlGt ■A.Tbose wishing to buy dry good* this week will find it to their advantage to give Peck, de Saulles A Co. a trial. aug21-3t Way- Wanted to Rent. —A small house, two or three rooms. Address “ M,” Sun ofli'f aug22d2t ■S Peek, de Baullea k Go, have a nioe line of parasols still left, whiob they are willing to sell at ooat. aog21-3t Way -Peck, de Haafles k Go. will sell at cost prices their entire stock of embroid-* eries, laces, kids, hotaery sad gloves. ang21-3t Nougat de Mametiles, at Blank's Candy Factory, jy29-tf Nougat de Marseilles, at Block's Candy Factory. jy2«-M tiay-At Coat—at Peck, de itanllea k Co. —colored silks, Japanese poplins, grena dines, Japanese cloths, lenoe, poplins, moxambiqnes, muslins and lacona. aug21-3t War Peek, de Saulles k Co., in order to make room room lor their fall stock, will sell all summer goods at New York cost. Now is yonr time to get as good bargains as ever were offered in Atlanta. ang21-3t “Alexander H. Stephenson the Stilly of the Law.” This is the title of a 16 page pamphlet, being the substance of a Lecture to a class of Liberty Hall law students. It is printed and now ready for sale at The Atlanta SuN-office. It is one among the ablest and profonnd- est productions that ever emenated from Mr. Stephens’ pen, und is deeply inter esting and instinctive, not only to law- yera, bat to all classes and professions. Price—single copy 15 cents, 50 copies $5.00. Address J. Henly Smtth, Manager Sun office, Atlanta, Go. anglS-tf Prmei for Halo. Cue “Henry” Power Printing Press- arranged for hand or steam power—bed 33X47. The Sun ia now being printed on thia press. It makes from 1000 to 1500 impressions; is strong and easily managed, and with steam power, is a No. 1 press. It is now, having been worked only G months. Price $1250. The “Acme" Press works a sheet near ly as large as the “Henry,” at about the same Bpced. Is the best country news paper press built It is new. Both these presses can be seen at work in The Sun Press Room. Address A. M. Speights, Sun office. MARKETS BY TELEGRAPH. NOON. Cincisxati, August 22.—Cotton setivo and advanc ing ; low middlings 1?; middlings 18 . Whisky ac tive and firm at 00; largo sales. Flour active and firm; superfine $4 SO; extra $5 50. Corn Urn* and in good demand; mixed shelled 54. Oats steady with good demand; prime mixed XKg> 33. Hess pork strong and advancing at $12 50. Ba con in good demand and firm; shoulders 6; clear rib sides 7; clear aidaa 7' 4 . Hams dull and lower ; sugar-cured hams 13@14. Bulk meats steady and lu fair demand; shoulders 4Js; clear rib aides 0; clear aides 6*4. Lard steady with good demand; city kettle rendered 8,V- Wheat stronger; primo mixed $116. Bagging 20. New Yobk, August 22.—Cotton firm ; uplands ; Orlei ■ 19\ Flour a shade firmer. Wheat quiet and firm. Corn quiet and steady. Pork steady. Lard steady. Turpentine 63@53X. ltosin $2 81%2 85. Freights firm. Stocks steady and dnil. Gold uneasy at 12’,^ 12 Governments dull and steady. Money easy at 2. States very dull. Sterling—long 83t; short 9. I.ivespool, August 22—noon.—Cotton opened steady; uplands 8’<; Orleans 9'.d; sales 10,000 bales. Breadstuff's quiet London, August 22—noon.—Consols 93Bonds 93'i'. Frankfobt, August 22.—Bonds 9C> 4 . Pabis, August 22.—llcntes 50f. 24c. For use of Carrier, • | Mnscogeo. H. L. Bonning for plaintiff McKAY, J, i in error; PeaboJj A Brannon for defend- In a suit ujhjii a uoU>. payable (<> \ : only, aud the suit was in tlio name of A, | t>v. 4 , . . for the use ef R. Hel.l that C, who was! PenJ,n 8 "8 ameI “ thia ease the true owner of the note, and who con- Court adjourned till 10 o'clock, a. M. f to- trolled the case, might make the affidavit | morrow. AFTERNOON. New Yobk, August 22—.Cotton strong; sales 1.- 183 bales; uplands 18^'. Flour—Southern firmer; common to fair extra $5 65fe5 80; good to choice $0 85<&9U. Whisky low- at 93,*;. Wheat closed heavy at 1®2c lower; red winter western $1 40@1 40. Corn a shade lower at C7(ft67> a . Pork firmer at $13 62)4. Lard quiet, Turpcutiue 53($53)4. ltosin quiet. TalUw 9&9' 4 . Freights firm. Stocks very active, closed strong. Gold irregular at 12.'i@12‘,. Government* ',a$' 4 lower—cloned very dull. State very dull. Tonnessecs 75, new 75',. Virginia 03; new 72, Louitiauaa 05; new 00; levees 70; Alabama* 100; files 68; Georgias 83; sevens 91; North Carolina* 45; new 96; South Caro lina* 7o; new 67%. Sterling —long 8%; short 9 V Liverpool, August 22.—Cotton unchanged; Man chester less favorable. Weather wet. Ualtimobe, August 22.—Produce.—Flour steady. Wheat scarce aud firm. Com firm; mixed western 05(0-07. Oats firmer at 43^47. Pork quiet at $14fe 14 50. Corn and whisky unchanged. Cotton quiat; middlings 18}|; net receipts 53; gross; 53; sales 30; atock 915. Cincinnati, August 22.—Pork, $12 23. Lard ad- vauced—9 asked. Baron —demand light; holders firm; shoulders 6; clear sides 7.*{- Whisky quiet and steady. Hour firm. Corn quiet. LocfNviLLB, Aug. 22.—Provisions—Flour quut and steady. Provisions quiej %nd firm. Fork $12(*i 12 50; shouldors 0' 4 ; clear aides 7‘, packed; Keg lard 12. W*hisky 00 to $1. Rt. Louis, August 22.-Flour and corn dull aud unchanaed. Whisky strong at 90. ^“gy'-g un changed. Provisions dull; only order tnuuaciious. New Orleans, Aug. 22.—Produce.—Flour droop- iug; quoted at $4 C2 1 .; double $6 76; treble $6 12',. Corn dull; whito 60®70. Oats firm at 50. Hay weak at 82(434. Bran dull at $1 66. Pork dull; held at $13 73. Bacon depressed at 6&#7; rib 7H&7.*«; hide* 8 l 4 (<£8,',. Lard unchanged; all others uu- changed. Sterling29q. Gold 1 \\. Cotton quiet; middlings 16X017net receipts 246; gross 202. Exports to continent 3,623. Havannah, August 22.—Cotton—middlings 17',; sales yesterday 130; net receipts to-day 82; stock 354 bales. Charleston, August 22.—Cotton dull; Middlings J7c; net receipts 64 hales; exports coastwise 280; j*!ee 24; stock 2.$78. Wii^unqtj}*, August 22.—Suirlts turpeutiue Ann at 45. Rosin firm at $2 25 for strained; $5 for No. 1, $2 86 for low No. 2 ,«»9 lor extra pate; $6 M for pale. Crudo turpentino steady ; $3 45 for yellow dip; 4 50 for virgin. Cotton dull; middlings 17; exports coastwise 1; sales 20; stock 598. PniLiDELMUA, August 22.— Cotton firm ; mid dling* 16|£. Auuvkta, August 22—Cotton Ann; offering'* light; middlings IC.' 4 c; receipts 10;sales 69. Norfolk. August 2$.—Cotton estimated—ut t re ceipts 50; stock 443 Morjla, Vngust 22—Cotton nominal; middling* 17V; net receipts 24 Export* coastwise 387; sale* 800; stock 293. LATEST. New You, August 22.—Gold has been very 1r* regular -ciosin % at 12.' t .