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THE DAILY SUN.
Nr* A tlrrriirrm m It always /omul
on Nirot Pagt ; Local and Business Notion
on Fburth Pago.
Chtage of Oar Iwharlpllor Price.
We ask attention to our new terms of
subscription in tbe first column on first
rat
■logic Copier of Iht Boa For Bale at Ike
Craatori
DULY * Cento
WBPU.Y » Oak
Wbdbzbdat Homnxo 8*maniiB27
CITY AFFAIRS.
Major Me calla'r Blatcmcat.
We bare in oar Retail Dry Quods
Store tbe most superb and elegant stock
of ladies’ Dress Goods, Laces, Embroi
deries, Hosiery and general assorted
UmOoaio seer before offered
by us, tagre solicit inspection of oas
stock fr*u all.
■ept26-hn Ciusmbw, Botwtob * Co.
Window Shades, lace Curtains, Lam-
berquin Materials, Damasks, lte]», Rugs,
Table and Floor Oil Cloths, Hats, Mat
tings, Wall Paper and Upholstery Goods,
in large nineties, at the Carpet Store of
sept36-lm Chxmiikei.in, Boynton k Co.
At A OMMktkb Monilag.
Mr.it Beago has a big sale of lots
in fidlvood, thin morning, commencing
at 10 o'clock.
i Hacks oarry (Ml tbe crowd free, and a
free lunch given on the ground, at 12.
■A. k Handsome Stock of Dress
Goods, at
c, ) Loan, Dona lass k Dsuris’,
sep20-U 42 Whitehall Street.
Markaktes* Sin Cam pa a x, Co., No. a.
See notice of a called meeting of this
Company, to-morrow night
WaataAl Wanted I
Two first-class Boot Makers, at Charles
C. Hughes' Boot Manufactory, No. 42
Pryor street
None but first-elans need apply. *
CMiaarclal Items
Our friends, Cooper Sc Lane, we learn,
delivered and sold to a neighboring BUte
market 80 barrels of tho popular A. H.
Stephens brand of floor yesterday, for
which they are sole agents in onr city-
all in an hoar’s time.
Pull line of White Embroidered
Flannels, at
Lows, Doi'ouss k Dallas',
sept20-tf 42 Whitehall Street
Grady says something about uniting
Bourbon and Rye in a General Coin-on
tion, and haring no New Departure in it.
See his advertisement
Spiced Pigs' Feet, in Vinegar, a'
Stoker k Bill's, 2 Granite Block. 2
We publish, this morning, a statement
of the money received and paid ont by
Maj. Me Cal In on account of tbe State
Road—all by order of Foster Blodgett
In doing this, we remark that he is the
principal man in bringing chargee againat
delinquents and embezzlers, und has
given moat of, the information on which
to base the prosecutions which have been
commenced.
Since the committee has undertaken
to make settlements, and bring np bal
ances sa far as possible ; and
CoL Farrow to commence action
against defaulters and ^delinquents, Mc-
Colla is the tint one (and the only one,
so far as we know) who has been called
on for a statement, and the only one
whom Col. F. has proceeded against.
Why he, above all others, should be
singled ont, is strange to na. It looks
like an effort to break tbe moral force of
bis testimony, and to crush out all inves
tigation. We have no right to allege
that such was the object, and do not even
milt, an insinuation to that effect; but if
those who arc engaged in making in
vestigations and prosecutions liad
even known him to be guilty of wrong
doing, it seems to us they would have
done the Stato some real service if they
had need him, ss far as possible, to
gather up evidenoe against others, and
allowed him to be the last man called on
for a settlement.
Whether innocent or guilty, the de
mand made upon bim, and his arrest,
Bcems to us to have been a mistake—cal
culated to do barm to tbe cause of tbe
people, instead of doing any good. These
are our views, given to the public for
what they aro worth.
He has come'forward with liis state
ment. Will the first movement be to
get his assistance in bringing others to
do tbe same thing, or in picking flaws
in his exhibit?
MAJOR McCALLA’S STATEMRNT.
Charlaa P. McCalls la Arcouatwlth tka
Waaiarn St Atlantia Railroad.
April 7 To Rally k Wobb,
Ms;
uoo no
Roney) MO 00
Nor.Car.ll.lt.
Sale Gold Rill
A. A C. II. It
Lou. Cin. k Lex....
Ilarton A Albany
KauM City, Ht. Jim.
tO. U
Terr* llauto Ac lnd'a
ChoMtpeako Ac Ohio
30 00
1 42
372 70
Two OoaYcnIvMt Hoaiei for Salt.
Col. 8. R. Spencer offers, nt a liargain,
two Houses on Peters street, between
l'ryor and Whitehall. Cull on bim nt bis
office, iu Grant's building.
■gk. Full Lino of Balbriggan Hosiery,
at Lowx, Dodolass k Dallas',
septfiff tf 42 Whitehall Street.
real of Carp*Birring.
We saw yesterday in Mr. J. A. Tuttle's
■tap, oa Hunter street, tho timbers of
the frame-work of a hip-roofed boose—
all first made and jointed, rendy to be
banled out to the building place, where
they will be put up without making any
alteration in a single joint. This said to
be 4 difficult thing, but Mr. Tuttle is
of it
Pina (leak la Arrlva To-day.
We learn that seventeen fluo horses
will arrive at Wootteu k Taylor's Bta-
blee, on Alabama Street, from Nashville
—all superior animals, and tome extra
fine. _ *
The Mends and acquaintances of 0. It
and Wm. R. Haalciter, and of Henry
Gnllatt, aro respectfully invited to attend
the Funeral of Ait an u a Lochia, dangli
ter of C. It and Ann E. Hanleiter,
from the reaidencc of Henry Gnllatt,
No. 100 Calhoun street, This Afternoon
at 4 o'clock.
Vaall Vldll Visit
That Loom, which so many liavo in
quired about, bus arrived and is at work,
and it is verily a wonder. For rapidity
<tf motion, beauty of fabric and variety
of work done, it is unequalled by any
loom in the world. Every lady is invited
to call and see it work, in Toon's Priut-
ityLijniwo, Broad etri-et, near the Bridge.
Iteadia. Robson k Caiapore, ere sole
agents for tbe sale of the Machine. It
will weave twenty-four inches in a min
ate worked by band. By applying steam
pawar, it Brill weave five hundred yards
ip ten hours. It is the wonder of the
*»■ ,
Tka Markata.
Trade yesterday was splendid. Large
quantities of goods were shipped to va
rious points on all the railroads.
There is no particular change in prices.
Com is improving slowly end the market
has jumped from 18) to 15
Jr
The longest and finest stocks of mask
ere1 are bring received, and selling very
cheap,indeed.
riOto' quotations will fsrolrii farther
-E- ■
. ( Totymselelavaamb.
We Uotie# the most complimentary and
flattering articles in the Savannah papeta
about the Templeton troupe, which is
now playing in that city. He has added
several ladies und gentlumdu to hie com
pany since he left here. At his matinees
he admits orphans and imijgent children
fine of charge, if attended. We aro glad
to know that he is doing well.
Fox, Cocput, Chandler A
Judge Lawrence returned from Balti
more yesterday. They report a highly
interesting tune .on their visit.
jNtpenko .
Gin. lUm * Dayton
l’ndinnh ft Gulf....
rouwtcol* k Lotila..
lud. lilt mi. k Wort..
Hurling ton k Mo...
Ht. Louis, V. AcT. II.
Indiana
Vs. k Tenn. A!r-
Llue (Ticket)...,
llllwAukiu k Ht I’a'l
Char. Col. k Aug...
U. H. Mail Lins....
Char. Col. ft Aug...
Itlchmuudft Dan....
Ht. I* k I. M..unCii
llliuoiit Cuutral
Chi. k Nor. Wentr'n
Htyali'a Ageney
Lake Shore k Mich.
WeHturu lUilruad..
Pacific lUilroad
Halt. Ht’ni P’okt Go.
Moot In A Moiltgm'y
Kentucky Centnil..
Penney! van la R. 11...
Krio Railway
Or. Hu. Mnll Route..
So. Ca. Railrimil. ...
1* K Ciu. k Ht. lriittlM
Ya. ft Ten. Air-Liue
Mem. ft Ht. L. l'ackt
Urayivillo Agency
W. H*
Dig^banly.G T Cur-
Mobile ft Ohio
C. C.C. ft lud...
Jack. I'ou. ft Mob'lo
Michigan Central..
Tenn. Coal Cuuipuy
Ga. Air-Line
Central lUilruad,...
Gr. LUm. Baltimore
HU R4
72 67
0 23
4 4H
13 75
10 7fl
7 00
7 00
13 25
7 52
2,181 93
135 21
235 00
31 73
493 HI
149 HO
24 00
12 42
11H 00
275 G J
13 33
249 32
200 43
moons all round the edged where he had
been biting it Fitzgibbons wan offering
consolation in the waj of cako and ap
ple*, bat Jon sen was inconsolable.—
Nothing but a fow minor canes were on
band.
ED BURNETT,
a sharp Hprightlj, boy, with a good /ace,
had been having Home boyish diapute
with another boy, when a hungry police
man pounced down on him. The Mayor
gave him a good fatherly tulk and tined
him the costs, which were aftewards re
voked upon promise to be a good boy in
future.
NELSON BYRD
wa« oqc of a gang of black birds who,
about the first of February last had en
gaged a brother bird to haul some trees
for replanting, and agreed to pay him a
dollar for it The trees were promptly
delivered, but Nelson ref lined to pay.
The drayman worried along with him all
through the long, weary and hot summer,
trying to get his dollar, and ut last was
forced to litigation. The court ordered
Nelwon to pay the dollar and the costH of
the Huit.
GEORGE TURNER
wan a little nigger about the size of a
piece of chalk. He proponed to exerciae
his newly acquired civil rights, by put
ting it into practical execution. He drew
his knife on a little white boy and the
little boy’s brother took it up. It was
just such a fuss a« happens every duy
where thero are children and the Court
fined him only one dollar and costs.
FRANK CLEMMON8
ought to have had more sense than he
exhibited the day previous, when he
jumped on the Macon train while in mo
tion. Some folks can’t take a hint.
Costs.
A DOMESTIC BRAWL.
Ed. Collins and his wife, Mollie, got
up a quarrel. Ed., in an effort to dem
oust rate to her that he ruled his own
roost, came very near alarming the en
tire neighborhood. She was heard to
say :
Wo have token a long Journey, Ed.,
Happily together;
Up end down life's rugged mouutoiu,
In all kind* cf weather.
Wu have seen along tho way
Light and ithadowa day by day.
This Molle tied Ed. somewhat; he “ soft-
eued on her,” but too late to keep out of
the lock-up, and when they both insisted
before tho Court, that they were only
playing, Lowry thought thut the fuu was
worth the costs in the case.
THE SMITH FAMILY
was represented this morning by Aaron.
He slapped a small nigger into the mid
dle of next week for some “sans” the lit
tle fellow gave him, for which lib was
fined one dollar and costs—tho Court be
lieving, privately, that more «lap8 and
less law iu such coses would bo better,
ALEXANDER HENDERSON
was the big brother of George - ilouder-
kou, whom Aaron had slapped over, and
he very naturally put in his mouth when
Aaron proposed to serve him tho same
way. While quarreling, au officer march-
id the whole crowd off to the calaboose.
Thin closed tho melancholy business.
Lowry looked around ut Jouscn, and the
attending policeman, with ft languid eye,
and began exhorting them to renewed
exertions in bringing in good cases. He
advised discretion and valor, and wound
up pathetically:
Ik* true to thy love ami thy couutry
Thu ihmtoril win* uover a priae;
But tho eariirat are ever tho victora,
Ami ho on Jiwtico relic*.
account to be examined into and diacub-
*ed with more than ordinary interest:
1. The passed bill and receipt of Col.
Farrow, as well at the order on the Treas
urer of tin road to pay tho same, are da
ted 27th December last, while the account
itself is dated 1st July last, and ia for ser
vices rendered from lit January to 1st
July, of this year.
Col. Farrow says ho did not notice the
incorrect dates till quite recently, afto
the foregoing paper* had been called for
by Mr. Kawson, and received from Mr.
Harris, tho Treasurer, and on this point
Mr. Lawson gives the following certifi
cate:
certify that I called on I. P. Iiarrlaaud roceivod
tan«ud toil for Col. Farrow and handed it to him
ited. I did not notice the date of the ptUMt-d bill
until attention waa called to it by Col. Farrow.
K. E. lUwrioN."
Col. Farrow says the whole account and
passed bill—all the papers in the case were
made out about the 1st July last, aud he
does not know how or why the auditor
and Superintendent dated their papers
in December lost, unless it was because a
number of bills approved by them dur
ing tliis year were dated in December
lost, prior to the lease, and that this one
was also thus dated by them on account
of this habit—so he tells us verbally.
% While this bill, thus made out and re
ceipted, was lyiDg in the bunds of Mr.
Harris, Col. Farrow drew from Maj. Mc
Calla the snm of $1,000 as part payment
for the same, as the following receipts
will show:
Received of Charlc* P. McCelU, seven hundred
doitorH, on account for W. ft A. It. R., thin 29tb July,
1871. Mo P. ViBWVi
Att’y W. ft A. R. R.
Correct copy of receipt in office.
Atlanta, Oa., Ang. 17, '71.
Rcc'd from Chan. P. McCalla, O. B. K. W. ft A. B.
R., throe hundred dollar* on ecc't of draft for
fl.800.0U. H. P. Fabbow,
$100.00.
Att'y W. ft A. R. B.
Correct copy of receipt In office.
Frcedmon'a Bureau *82 21*
B. F. Blodgett 408 00*
A. L. Hariris 716 22*
W. 11. Barbery, Agt I I 18-11,134 22
*Restitullou money.
April 7 By Draft, U. Robcrtoou,
Tr I
May 29 Draft, W. J. Taylor,
John W. Wilson.."
C. P. McCalla...."
Office Kxpeiif
200 00
410 00
160 48
400 00
H. Mt Brule, salary.
Draw Bark TtokeU
A. ft 0. R. It. bill..
II. P. Farrow, ou
ape dralt
U. II. Brown.At fee
T. Pinckney’* draft
J. J. Blake, order. A.
700 oo
26 00
16 6H
Sept. 26 C. P. McCalla.»alary
300 00
15 00
04 20
116 09
20 73
32 11
410 00- 9.421 04
Col. Farrow's I»»y «■ Attorney of the
Weatrrn anil Atlantic ltullioml.
Col. Horny 1'. Farrow, the Attorney
General, is receiving a salary of $2,000
per annum. Ho also has a written con
tract with the Governor, by which his
services are retained as Attorney of the
Western and Atlantic Railroad, at a sala
ry of $3,000 per annum. This contract
was entered into in 1808, aud has
tinned up to the present time.
Lutoly there has been some investiga
tion into bis account for a half year’s
Hidary from tho 1st January to 1st July of
this year, as Attorney of the Road, and
the CimtlitulUm of yesterday contained a
letter from him to Maj. Hargrove, includ
ing the papers involved iu the accouut,
giving explun&tions, etc.
The following is a correct copy of the
accouut against tho Road :
Atlanta, July 1, 1*:
Wkmtkhn and Atlantic Railuoad, Da.
To Henry P. Farrow, Attorney at law:
To tterviiva rendered from January 1 to June
1871, under contra* t with Superintendent Wen
and Atlantic Railroad, approved by the Governor
priori “
Appi
Cash on hand....$ 1,762 26
The above etotomeut showing a balance of $1.76-2
26 in my hands to the credit of the Western ft At
lantic Railroad, comprises all Receipts and 'Asbume
incuts made by ute since the Road was I* ased
were made by order of Foster Blodgett, Superlute a
dent, K. ft O. E.
CHA«. P. MeCALLA, 0. B. K.
Atlanta, Oa., Sept. 26, 1871.
MAYOR'S COURT.
The mists of morn were rising fkst.
When through the tail, rank weeds there passed
A youth, who swung above his heed
A rag, ou which the passer road—
"Excelsior."
Tito youth idlmhkl to iu tho above liui*
i. supposed to be the Mayor ad interim,
enthused at tbe prosprot of another big
haul, similar to the one of the day be
fore. Ho remeuilterod well tho dull aca.
eon of last week, aud up to Monday morn
ing be began to fear that lie would have
to make a report to tho Mayor on bis re
turn similar to that the servant made to
his Lord, who gave him only one talent
and ho went and buried it. But Mon
day's crop “hope” him np, and, there
fore, “ExcelsiorI” OU, ho felt glorious,
ami didn’t care for anything.
"Teke dc w® that ng!" his mother yrllnl.
•**lea tnow how bed jour h«edls bwellcd;"
But still aloft the rag he swung,
Aud dashing om hi loudly aung-
" Excelsior!"
But s eold, gloomy look greeted him
from Jottsen as lie entered the antecham
ber preparatory to ascending tho throne
of justice. That look was ominous.—
Jottsen luul evidently Itocn weeping, for
his eyes showed it, and he held in his
hand a piece of ginger cake, with haJf-
tbi* lease of said road $ 1,800 00
“ KH BLOIXIKTT,
Siipvriutcudent.
To this was also attached a'memoran
dum of approval by Gov. Bullock as
follows:
Thin tthould be paid by I. P. Harris, Treasurer,
order front the fuuds ut his hauds. U
AU accounts agaiust tho Road, after
being made out and approved as altove,
are handed to tho auditor, who investi
gates them. If approved, tho auditor
makes out what is called a “passed bill."
Tho following is the bill iu this case.
WKtrrKBN AND ATLANTIC RaILBOAD,
To U. 1*. Farrow, Dr.
For Amount of bill, herewith Ho— $1,806,
Atum a. December 27, 1870.
Paused for Eighteen Hundred Dollars.
N. F. Hotchkiss,
Auditor.
Received Pay mrnt:
U. P. Fahbow, Attorney,
Wt idcrn aud Atlantic Rilroad.
The bill boiug thus allowed and receip
ted, tho Superintendent gave tho follow
ing order on tho Treasurer :
$1,800. Atlanta, Ga.. December 27,1870.
Isaac P. Harris, Treasurer Western aud Atlantic
Railroad:
l*ay to U. P. Farrow, or bearer, Eighleeu Hundred
Dollar*, to pay Voucher No. —
Foots a Blooc.ktt,
Sii|*ertnlrinient.
N. P. Uotoiuih.4. Auditor.
On the lawk of the paper containing
tho foregoing copies, is tho following in
dorsement:
We, the Committee, certify that the within copy of
count and paasod hill, ia a correct copy of 1X>1.
Farrow's paaaed but s^ainat the W. and A. R. R.
CoL Fttrrow, i
E. E. Rawnon
i liis letter to Muj. Har-
We publish these papers with the fore
going explanations, «s part of the his
tory of the times. Col. Farrow explains,
his note to Maj. Hargrove, that being
Attorney General docs not restrict him
as a lawyer from serving any client—the
Stato Road not excepted; and that he
has never roceivod a dollar contrary to
law. ^
SUPREME COURT DECISIONS
September, 2G, 1871.
H. Kurwisck vs. The Mayor and Council
;jof the city of Atlanta—Certiorari—
Sabbath Laws.
LOCHRANE, C. J.
Where, by the petition for certiorari,
it appeared that tho petitioner had been
convicted by the Mayor and Council of
tlto city of Atlanta, for a violation of the
city ordinance, agaiust dealers keeping
open doors on Sunday, and the proof
showed that six or sevon persons had
gone into the store house of petitioner
on Sunday, by a back door, and that he
was a dealer in liquors, cigars, etc., and
the Court below refused to sanction the
petition for certiorari:
Held, That this was not error in the
Court. Tho Christian Sabbath is a civil
institution, older than our Government
and is recognized as a day of rest by our
Constitution, aud tho regulation of its ob-
uiico as a civil institution, is in the
power of tho Legislature, as much as any
laws having for their object the preserva
tion of public morals; and it is within the
right of the city of Atlanta to punish the
keeping open of doors by dealers gener
ally, within tho limits of the city, upon
Sunday, for tho purpose of preventing
tho violation of the Stato laws, as well as
preserving tho public respect for tbe
laws themselves.
Judgment affirmed.
H. Jackson & Bro. for plaintiff.
Jane and Moses Frank and L. A. Guild
vs. Longstrcct, Sedgwick & Co.—
Usury
LOCHRANE, C. J.
Where the payee of a note indorses it
after maturity, and suit is brought by the
indorsee, against the makers aud indors
er, and a plea by tho makers sets up usury,
and tho Judge held such plea by the
makers did not affect the liability of the
indorser upon his contract of indorse
ment after the maturity of the paper:
Held, That this was not error. The
contract of indorsement was a new and
distinct contract, not affected by the
usury between tho payee and makers,
in the hands of the indonee with
out notice, and the indorser, in a
suit against him, jby the indorsee,
cannot set up his plea of tho ille
gality of the act iu takiug usury, to de
feat a recovery against him as indorser.
Held, again: Where a note made to
be negotiated at a chartered bank was not
negotiated, but held by the payee at
its maturity, who took from the indorser
a written warver of demand and notice,
ami after its maturity, it was endorsed
by the payee upon such paper, under our
law,aud indorsement after maturity upon
suit by the indorsee, is in discharge of
the failure to prove demand and notice,
and it was not error to refuse a non-suit
upon that ground.
Held, again: That in order to render
verbal evidence of the contents of a no
tice required by our law, even when such
notice is out of the jurisdiction of the
Court, it is first necessary to give notice
to the party, or his attorney, to produce
it
Held, again: When the evidence shows
that the maker of a note borrowed $24 00
from the payee and gave three notes of
$1126 each, ‘and paid two of the notes,
und the payee indorsed tho last note to a
third party;
Held: That in tho hauds of such
third party the noto is only void as to
the amount of usury therein, and it is
not competent for makers of the note to
set up. the usury paid upon the other
notes to the holder and payee thereof, iu
their defense to this note.
Held, again: That tho amount due on
the third note,by the makers,is $8 00, with
interest, after deducting any payments
made thereon by them. The verdict was,
therefore, in excess of the amount duo
and should have been, under the facts of
this case, $134 18, with interest, from the
15th of January, 1868, aud we direct that
the verdict conform to this amount, or
else that a new trial l>e granted to Jane
and Moses Frank. ,
Held, again: Under our Code, juries
may find according to the equities of the
cast' by their verdict, and that the ver
dict against Guild stand affirmed.
Judgment affirmed, with instructions.
M. Arnold & R. J. Cowart for plain
tiffs.
II illy or A Bro. for defendants.
J. D. Cameron vs. Warren Aiken. Re
lief act of 1870. .
LOCH KANE, C. J
ferrec of Urn note, was not called upon
to go further than to show a compliance
with the act of 1870, by having paid the
legal taxes dno thereon, while he held
the note, or otherwise shown no tax due
thereon.
McKay, J., concurring.
Warner, J., dissenting.
L. J. Glenn Sc Son for plaintiff; Hill Sc
Candler for defendant.
L. J. Hill burn vs. George S. Black. Re
lief act of 1870.
LOCHRANE, C. J.
Where the court below rendered judg
ment on a noto made before Juno 1st,
1865, overruling a motion to dismiss the
suit for non-compliance with tho act of
October 13, 1870:
Held, That the court committed error.
Judgment reversed.
Dabney Sc Culberson for plaintiff;
Broyles for defendant.
Lee L. James vs. Ed. R. Elliott. In
eq uity—Recou pmen t.
LOCHitANE, C. J.
Where, upon the trial of a bill filed to
restrain the collection of notes given for
the purchase mouey of lands, both cases,
the common law suit and the bill being
tried together, it was charged that by the
misrepresentation and fraud of the ven
dor as to the lnmndary of the land, the
vendee made the purchase, and by such
fraud he had been misled into the ex
pense of preparation for making brick,
for which purpose he bought the land,
and which was known to the vendor at
the time of the sale; aud the court re
jected the evidence offered by complain
ant, the vendee, to show his damages,
resulting from the alleged fraud, and also
as to the quantity of land.
Held that this ruling by the Court
under onr law, fraud with injury gives a
right ol action and he may recoup the
damages whatever the jury may allow
in an action against him for purchase
money, the rule being confined to the
actual damages suffered, the fraud being
for the jury to determine:
Held again, it was error to rule out the
evidence in relation to the quantity of the
land. Ui*lur section 2600 of the Code,
an apportionment of tho price may be
made when the purchase is per acre.
Where a deficiency amounting to fraud
is proven, it is for the jury to determine,
and not for the Court; the whole case
ought to have been submitted to the jury
and let them weigh it tinder the legal
rules concerning the evidence.
Judgment reversed.
R. Baugh for plaintiff; Glenu &
Son for defandant.
Lydia A. Smith, vs. T. C. Willingham
et al—Tenants—new trial.
LOCHRANE C. J.
Where upon a motion for a new trial,
the Court granted the motion on the
ground that the father of one of the
parties, a warrantor, who luul been re
jected as a witness upon the trial, having
in the court room near tho jury and
within the hearing of the jury, bilked to
another person who had been a witness
for tho other side, about the case aud
said among other things, that if he had
been permitted to give liis evidence, ho
could have told a'l about the transac
tion and such act was unknown to the
counsel or the parties until after the
verdict:
Held that iu view of the necessity of
preserving tho purity of jury trials, when
the Court below presiding at tho trial,
whose opportunity of knowing tho effect
of such influences upon the jury is much
better than ours, lias granted a new trial
under section 3267 of tho Code, wc will
not interfere with his discrcatiou.
Judgment affirmed.
T. I*. Westmorland, A. W. Hammond &
Bou for plaintiff; Hill and Candler,
1*. i>. Steward for defendant.
R. B. Bullock, Gov., vs. J. W. Hancock,
et al.—Recognizance.
LOCHRANE, C. J.
Where a pardon of the Governor was
pleaded by the sureties, in discharge of
their bond for tho appearance of thoi
principal, ami the recital of facts in tb
pardon shows that it was not applied for
by tho accused, who was out of tlic State,
and the plea failed to show his delivery
to him, or acceptance by him, aud the
Court sustained the demurrer to tho plea.
Held: Under tho facts, that this was
not error. Assuming that under the
Constitution of 1868 the Governor may
exereiso the pardoning power before con
viction, this exercise is based upon a
confession of guilt by the accused, and
before such pardon takes effect, it must
bo applied for by the accused, and in the
plea of pardon, by his sureties, the facts
set up must show its acceptance by their
principal, or evidence of liis application
for pardon, or of its delivery to him and
a pardon granted without tho application
of tho accused, and no evidence of his
acceptance of it, is of no affect.
Judgment affirmed.
Peck & Boon vs? Conley—Relief Act of
1870.
McKAY, J.
Section 5 of the act of the 13th of Oc
tober, 1870, which authorizes the defend
ant in fi. fa. to deny under oath tho plain
tiff’s affidavit that the taxes have been
paid, and providing that the issue thus
made shall be returned and tried as an
other affidavit of illegality, stands upon
the same footing as the first and second
sections of tho act, and is not unconstitu
tional.
Judgment reversed.
WARNER. J., dissents.
W. A. Patrick, et al., vs. Scott, Boudu-
rant and Adm’r—Certiorari.
McKAY, J.
Where suit was brought in Justice’s
Court for an amount over $50, and a
iummons of garnishment issued, requir
ing the garnishee to appear and answer
on the day fixed for the trial of the original
suit, aud the garnishee failed to appear
on that day, and judgment was eutered
against him on the next day:
Held, that by sec. 3228 of the Code,
that no judgment until a term subse
quent to that at which ho was required
to answer, it was the duty of tlieJiu-
tice to have continued the proceedings by
a formal entry ou liis docket, to a subse
quent day not less remote than the time
required by law between the service of
the defendant in the original suit and the
time of trial.
Where & certiorari had been sanctioned
and no notice in writing was given ten
days before the sitting of the Court to
which tho same shall be returnable, aud
it is in writing agreed between the par
ties that tho decision Court upon
the points made in the certiorari shall l>e
submitted and determined as in other
juid while that judgment stands unrevers
ed, it is error to dismiss the traverse on
tho ground that an affidavit was not made
of the truth of the traverse. The Court
will presume tliat tho affidavit was pre
sented at the time.
Judgme nt reversed.
R. Arnold, H. Van Epps, for plaintiff.
Hill Sc Candler for defendant.
A. H. Colquitt vs. Mercer Sc de Graffen-
rcid. Issuable pleas.
McKAY, J.
Tho act of 1863 authorizing attorneys
to make oath to pleas setting up issuable
defences to suits founded on contracts,
does not alter the Code, requiring nleas
to the jurisdiction to be pleaded in per
son and sworn to by tho defendant.
A plea to the jurisdiction may be filed
at any time before a defence to the mer
its, aud if a plea to the jurisdiction tiled
at the first term is stricken subsequently,
the defendant may, if he has filed no plea
to tho merits, still file his plea to the
jurisdiction.
Judgmeut affirmed.
C. F. Acres for plaintiff; L. J. Winn
for defendant.
Asbury H. Barnes vs. The Stato. In
cestuous fornication.
McKAY, J.
The offence of incestuous fornication
is not a joint offence under section 4459,
aud oue person may be indicted and
found guilty thereof.
Where, on a trial for incestuous, forni
cation with a sister, the sister waa in
troduced as a witness, and she denied
that she ever had sued the defendant in
her name, and the court permitted evi
dence tliat the suit was brought, but re
fused to permit the declaration to be read
to the jury:
Held, This was no error, as tho con
tents of the paper was not material to
the issue, which was simply whether the
suit had been brought.
Where a written request was made by
defendant's counsel for the court to
charge the jury, which request covered
the whole case, and the judge iu his
charge failed to follow the language of
the request, but charged the law prop
erly and tho defendant was found guilty
Held, That section 3664 of the Code
which provides that a new trial may be
granted on the refusal of the judge to
give a pertinent legal charge in the lan
guage requested, when the charge so re
quested is submitted in writing, is not
mandatory but permissive only, and when
tho Judge has in fact charged the law
correctly on the points covered by tho
request and upon the whole case, and
has refused a new trial, this Court will
not, for tliat reason only, grant a new
triul.
No precise rule cun bo laid down bow
for the evidence of an accomplice must
be corroborated, but a defendant cannot
complain of a Judge on this point who
tolls the jury that tho evidence of tho
other witness or corroborating circum
stances must bo sufficient to satisfy them
beyond a reasonable doubt of tlie guilt
of* tho prisoner.
While we are not entirely satisfied with
the verdict in this case, still, as the jury
or tho judges of the credibility of the
witnesses, und as the Court below lias
refused a new trial, wc do not tbink it
our duty to interfere with his discretion,
Judgment affirmed.
Hill Sc Candler for plaintiff; E. P. How
ell for defendant.
William C. Sherrcr, Friii., and Williu
Shcrror, gam., vs. L. J. Glenn k Bon
—Certiorari.
WARNER, J.
On tlic hearing of the certiorari it
dismissed, but on what ground docs not
appeal*. On looking into the record it
appears that the certiorari was sanctioned
on the 5th day of March, 1869. Then
is no evidence in the record of any writ
ton notice having been given of the sane
tionoi tlic writ of certiorari, as required
by See. 3987 of the Code, and therefore
the certiorari was properly dismissed
tliat ground.
In Turner vs. Collins, 8 Ga. R. t
252, this Court held that it was tho uni
form determination of the Court never
to look out of the papers to inquire into
any fact, but whatever fact there appears
will bo taken to bo true, and if it docs
not appear in writing, it docs not exist.
The certificate of the Judge to the bill of
exceptions is the writ of error to bring
tip cases from the Superior Court to this
Court, and tho ten days’ notice of the
signing and certifying the same has al
ways been required to appear on tho roc
ord. Tho sanction of a certiorari by the
presiding Judge, is tlic writ of error
which brings up the case from the Justi
ces’ Conit to the Superior Court, and
the w ritten notice of such sanction should
appear on the record, otherwise it will
be presumed not to have been given.
Judgment affirmed.
Fred A. Williams vs. Adolph G. Mandel.
Relief act of 1868 and 1870.
WARNER, J.
This was an affidavit of illegality filed
by the defendant, to the plaintiff’s exe
cution, claiming tho benefit of tho relief
act of 1868, for losses sustained by the
war and on tlie ground that the plaintiff
had not filed an affidavit of tlie payment
of taxes due on tho debt as required by
tho act of 1870. Tlie affidavit did not
cases:
Hold, That this is a substantial waiver
of notice and an agreement that tlie cer
tiorari shall be hoard upon its merits.
Judgment reversed on the first point
and affirmed ou tho second.
Hifiyer Sc Bro. for plaintiff.
E.P. Howell for defeudaut.
E. W. Muuday vs. JolmG. Martin—Cer
tiorari from County Court.
McKAY, J.
Where there wo* a certiorari from the
show that the plaintiff was iu auy way
connected with the defendant’s loss of
property by the war. It also appeared
in the record, that the plaintiff resided
in New York at the time the judgment
was obtained, and lias resided there ever
since that time. The Court dismissed
the affidavit of illegality, and tho defeu
dent excepted:
Held that thero was no error in the
Court below in dismissing the affidavit of
illegality, on the statement of facts by
the record.
Judgment affirmed.
Farrow and Thomas for plaintiff. L. J.
Glenn Sc Sou for defendant.
Daniel Pittman, vs. Rebecca E. Chisolm,
Adm’x, and W. P. Chisolm, adm’r.
WARNER, J.
This was au action brought against
defendants ou a noto indorsed by their
intestate. The note was made by R. E.
Canton and pay aide to Taylor and Lewis,
or bearer, for $413,15, dated Aug. 20,
1861, due Dec. 1st, alter date and in
dorsed by defendant#’ intestate in the
following words aud figures: “I indorse
this noto, liable only in the second in
stance, this 10th of March, 1867.” The
plaintiff moved tho Court to dismiss the
defendants’ plea, which motion tlio Court
over ruled anti the plaintiff excepted.
When tho plaintiff offered tlie note in
evidence, tlie defendants objected thereto
on the ground that tho defendants wore
liable only in tho second instauco,
and there was no evidence
that tho plaiutiff bad sold
the maker of tho note to insolvency,
which objection was sustained by the
Court, and tho plaintiff excepted. The
plaintiff then offered in evidence tho an
swers of Tariiipseed, to prove that tho
maker of tlio note was and had l>eeu hope
lessly insolvent, since (he fall of tho yeur
1866, which ovidcuco was objected to by
defendants and the obj<*ction sustained
plaintiff to do an unnecessary and useless
act to ascertain the insolvency of the
maker of the note, by slicing him, when
the fact of his insolvency is notorious and
can be established by other competent
evidence ? The evidence of the insol
vency of tho maker of the note should be
confined to the time of the indorsement,
so as to exclude any presumption of a
want of diligence ou the part of the in
dorsee in failing to collect the note from
tlie maker. If the note could not have
been collected in the first instance, at any
time after indorsement by suit against
the maker, why go through that unnec
essary aud useless ceremony in order to
make tho indorser liable in tho second
instance ? The evidence offered in this
case to prove the insolvency of the maker
of the note in 1866, more than four years
after the date of the indorsement, was
properly ruled out by the Court.
Judgment affirmed
George S. Rutledge and Benj. J. Hardin
vs. R. B. Bullock, Governor.
WARNER, J.
This was a cose that came before the
Court below on an affidavit of illegality
to an execution issued on a judgment of
forfeited recognizance against defendants
at tho March term, 1870, of DeKalb Su
perior Court. The main ground of il-
egality was, that there was no judge
in the Atlanta Circuit, and that the Court
was held by Judge Parrott, a Judge of
another circuit, who had no legal right
or authority to hold the court and render
the judgment, under the following agreed
state of facts: That Judge Pope, the
Judge of tho Atlanta Circuit, resigned
on the 3d of January, 1870, and the At
lanta Circuit was without any Judge uu-
til August, 1870, when Judge Lochrane
was appointed to fill the vacancy. That
the March term of DeKalb Court of 1870
was held by Judge Parrott, without re
quest or invitation of Judge Parrott, but
on the request of Gov. Bullock, and that
judgment in tho case waa rendered on
the 7th of March, 1870, when the court
was held by Judge Parrott, the Judge of
the Cherokee Circuit, the Atlanta Circuit
being without a Judge.
Tho Constitution declares that thero
shall be a Judge of tho Superior Courts
for each judicial circuit, who may act in
other circuits when authorized by law.
The 232d section of the Code declares
the jurisdiction of the Judges of tlie Su
perior Courts is coextensive with the
limits of this State, but they arc not
compelled to alternate unless required by
law. Section 233 declares that each of
said Judges shall discharge all the duties
required of him by the Constitution and
the law for the circuit for which he was
elected or appointed, although he may
hold courts in other circuits and may
also exercise other judicial functions for
them when permitted by law. That is,
the Judge of one circuit may hold courts
iu other circuits in the Stato, and may
also exercise other judicial functions for
other circuits, when permitted by law, as
to grant writs of injunction, certiorari
and other writs, whenever the resident
Judge of the circuit is absent or inter
ested, &c., or os provided by section 238.
Wo are, therefore, of the opinion that
the J udge of one circuit may rightfully
hold the court in another and different
circuit tliafl that for which he was ap
pointed. It is said if the Governor
shall fail or refuse to appoint
a Judge for the circuit, when n
vacancy occurs, he can compel the peo
ple of a circuit to have their legal rights
determined by auy Judge in the State,
whom he may think propor to force upon
them. That may be so, but the failure
of the Governor to perform his constitu
tional duty in making an appointment is
one thing for which lie is responsible to
the proper tribunal. The legal power
and authority of a Judge of one circuit
to hold a Court in any other circuit of
the State is a different thing. Tho fail
ure of the Governor did not divest the
Judge of tho Cherokee Circuit of the le
gal power and authority to hold the Court
iu tho Atlanta Circuit at the time ap
pointed by law, of which all parties were
bound to take notice.
Judgment affirmed.
Samuel A. Durand vs. G. W. Craig—
Ejectment.
WARNER, J.
This was an action of ejectment brought
by the plaiutiff on the separate demises
of S. A. Durand, against the defendant!,
to recover the possession of tho North
half of a lot of land No. 110, in 18th
district, DeKalb county. On the trial of
the cose it was admitted that W. M. Al
len was the owner of and hod the title to
the laud, both parties claiming title
through him. The plaintiff read in evi
dence a power of attorney executed
by Allen to McClain on the 28th
April, 1862, authorizing him to sell
tho laud, also a deed made by
McClain as the attorney, in fact, of Al
len, on the 23d January, 1863, to Durand.
This deed had but oue witness to it It
was admitted that Allen died in the State
of Kentucky, ou 5th September, 1862.
more than four mouths prior to the mak
ing of tlie deed by McClain. Allen was
in the Confederate army at the time of
his deatlu The lessor of plaintiff claims
that he has a perfect title to the land ir
respective of the deeds on the ground
that he purchased the land of McClain
paid for it and took possession thereof
before tlie death of Allen. The evidence
on this point is that of Durand and is
not very full and satisfactory. The newly
discovered evidence is not in relation to
the payment for tho land, and
is not cumulative merely, as there
was no evidence offered by tho
defendants in relation to the non
payment for the land by the plaintiff.—
If the detendauts had offered evidence as
to the non-payment of purchase money,
then the newly discovered evidence
would be merely cumulative evidenco.—
This evidence might have produoed a
different result iu the finding of the jury,
as that was a material question in the
case. In view of the facts, we cannot
see that there was any abuse of the dis
cretion vested in the judge in granting a
new trial.
Judgment affirmed.
L. .I. Winn for plaintiff; Hill k Cand
ler for defendant
lion. A. R. Wright.
Jiulgo Wright, of Rome, lias written a
letter to n gentleman of this city, that lie
will serve the State as attorney in tho
prosecution of tho State Road embezzlers,
without fee or reward.
Perhaps wc may lie mistaken, but wo
arc inclined to think there waa not much,
if any, need of employing a nnmber of
lawyers to help in these prosecutions.
Where upon the trial of a suit at coui-
gvovo. says this bill, &c., was carried to! niou law, upon a note made before 1st of
Mr. L r. Harris, tbe Treasurer, for pay-1 June, 1865, the defendant moved to dis-1 thereupon -
, , ... , , , 1 mi** it upon tlie ground that the phuu-. transmitted to the next term of
ment, but he did not pay it, and (t w “ , tiff had uoteompliodwith the aetof 1870, perior Conrt, and tbe issue tliei
left in his hauds to be paid as soon oa he w |,j c i, was overruled by the Court: "
received any funds. I Held, That this was error. Undortho. . . - , . . . . - _ . ...
tfevenl circumstance* lima pfuifc-t this | facts ol this cmc, Aiken being the train-1 that traverse should be tried by a jury, | to ascertain that fact. Why require the
County Court, under sec. 297 of tlie Code, by the court, out! the plaiutiff excepted,
und there was tendered to the Judge of The defendant# were not liable ou this
the Superior Court, in vacation, a tray-1 indorsement until the maker of the note
erae of tho answer of tho County Court' had beeu sued to insolvency, or some lo-
Judge, tho Judge of the Superior Court, gal excuse alleged for nothaviugdoneso.
thereupon, directed tho papers to be If the evidence offered hud shown that
■■the 8u-. tho miker of the noto was entirely insol-
■re to Ik* i vent at the time of tlie indorsement, wc
tried by a jury: , think that would havo been a good legid
Held, That this was a judgment that! excuse for not sueing tlio maker merely
BituuiiE Couirr ofGkoroia, /
September 26, 1871. )
After delivery of opinions in cases
heretofore argued,
No, .30, Atlanta Circuit, was taken up
—Delilah Venable vs. J. W. Craig—In
junction from Fulton. Hillyer k Bro.
for plaintiff in etror; R. Baugh, B. H.
Thrasher, Collyer k lloyt, contra.
Feuding the argument of this cause,
the Court adjourned till 10 o’clock a. m.
to-morrow.
Tlic trial of the Htate Rood Commis-
sion—Messrs. U »dwine, Hammock and
Rawson—corner off at 10 o’clock this
morning.