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THE CONSTITUTION.
BY W. A. HEMPHILL & CO.
I.W. AVERY, Editor.
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ATLANTA. GEORGIA, JUNE 28.
THE WEEKLY CONSTITUTION.
VOLUME m.i
ATLANTA, GEORGIA, TUESDAY, JUNE 28, 1870.
INUMBER 15
Newspapers and their Correspon
dents.
HTTIie battle of Waterloo was fought
on the ISth of Jane, 1815.
m no. ■
HT There are numerous shop-keepers
in the larger Northern cities who employ
female clerks to sell their goods, and forbid
them to sit down during business hours.
Home require them to dress.in silk,yet
only pay them from four to seven dollars
per week, and deduct from their wages on
account of absence from sickness. Such
men should be reconstructed. Congress
ought to establish a bureau for the pro
tection and defense of women seeking an
indcpcndentiivelibood by honest labor.
WTbeN ew York Tribune is opposed to
the re-admission of Wbittcmorc, the cadet-
pcddlcr, into Congress. Butler, the Ten
nessee cadet seller, bas been allowed tore-
tain his scat. The Democrats have repudi
ated every one of their party guHty of like
disgraceful conduct. The Tribune is
ashamed of the corruption of its own party.
Something more of fear than shame when
it sees the storm rising In the North which
threatens to overwhelm tho Radical
party'.
IV Statement? are frequently made that
sleeping men and women are put under the
influence of chloroform by burglars, prior
to rifling the contents of the rooms in
which they happened to be lying. Now,
there is no doubt that thieves believe that
men and women can be more easily influ
enced by chloroform than do physicians
and surgeons of experience, and experi
ment with it. But the probability is that
in most cases in which burglars have seem
ed to use it successfully, the victims were
in a profound natural sleep.
IV The great obstacle to the establish
ment, in Great Britain, of a rational sys
tem of public schools, free to all, is due to
the intense dcnomlnationalismof religious
sects which characterizes her people. They
have not caught up with the Continental
idea, that while the State should sec that
every child receives a secular education, it
is the office of parents and the churches to
indoctrinate youth in religious dogmas,
about which men ever have differed, and,
lierliaps, ever will difler to the beginning
of the Apocalyptic Millennium.
Opinm Bating.
Is fearfully on tho increase in tills country
It is proving a fruitful source of insanity.
Physicians should be wary of prescribing
it in protracted chronic cases, and druggists
ought not to sell any of its various prepar
ations to individuals who may make an
improper or injudicious use of them. A
party addicted to tho abuse of this valuable
medicine in any of its forms rapidly be
comes a wretccd wreck in mind and body.
Wlillc tho opium-eater in general is more
passive and less aggressive upon others
than the alcoholic drunkard, he Is far more
miserable, and sooner becomes aif useless
member of society.
From the East Coming to the West.
In ancient times, it was usual to make
pilgrimages to the East in search of infor
mation. Now, it appears that the Shall of
Persia, Scliabynscbah, (pronounce It who
can.) which being translated means king
of kings. Is to visit Europe. This individ
ual recently visited the envoy of Russia on
Uio shores of the Caspian sea, accompanied
by a sult of six thousand persons. Ho is
only forty years old, and has been reign
ing twelve years.
Ho is the first of his dynasty that has
ever proposed to travel beyond tho bound
aries of his own realm. He proposes to
visit Stamboul during tho present month
and will continue his journey to Italy,
France, tho German Courts, Great Britain
and Russia.
Under the present banking system, in-
stead of tbecotton, tobacco and other gold-
That the public may understand the re- bearing products taking a legitimate di-
iationsbipoftbis journal to its correspon- r ?ction to the markets of the world, they
dents, it is proper to state that theTnx Cox-1 arc diverted through routes and to great
8titutiox, and no other respectable jour- * ™ “ *
nal, is understood to endorse what may be
saidby a correspondent, whose communica
tion it publishes, unless so stated in specific
terms. Many communications, which the
editors and proprietors admit to tbc col
umns of their paper, are published because
they contain items of news, are indicators
of the current of popular thought, and are
sometimees specimens of the vain imag
inings of erratic intellects. In ail cases
the name of a responsible party is required.
The Cotton Crop.
In nothing do men, unacquainted with
its culture, Indicate their Ignorance more
than in speculations about the probable
yield of a growing crop of cotton. Up to
the time that the present rainy season
commenced, the cotton crop was in fine
condition. In ’general, the stand was
good and the crops were cleaned of grass
and weeds. The oooi weather which bad
characterized the spring -was not, how
ever, favorable to its rapid growth above
ground.
Now that the wet season has proven a
protracted one, many crops have become
very foul. If tiie rainstontinue the grass
and weeds may get so much the advan
tage of the cotton as to choke it ont and
render the stand liable to serious injury
in the attempt to clean the crop.
A protracted rainy season, such as this,
especially in such alluvial soils, encour
ages rust and rot—a disease which may
materially cut short the yield, even if the
stinted stalks survive to the period of fruc
tification.
Should the crop survive tho Injuries it is
liable to from the present rainy season, it
still bas to run the risk of injury from lice,
the cut-worm, tho boll-worm, excessive
drought, or excessive rains at critical pe
riods in its growth, of an injurious second
growth after fructification has fairly set in,
(thus causing a shedding of its older
squares, blooms and bolls,) of a fall unfa
vorable to the opening of the bolls and of
an untimely frost.
Gentlemen speculators and money rings
had better not bet on cotton, basing their
judgment upon the reported condition of
the growing crop two weeks ago.
ArvoiSTMEXT op Judge Akebman.
There is much truth in the following: It
<w»8 reserved for General Grant to make up
a Cabinet of political nobodies; and when
>wie nobody has died or resigned, to regu
larly put anotlicr nobody in his place. In
tills respect, wc umsc award to General
Grant the praise of consistency. The new
Attorney-General, Mr. Akcrmau, Is as sur
prising an appointment as most of tho oth
er* which our wonderful President has
made. If the fifty most intelligent poli-
Uciansof the country had each undertaken
to make up a list of tho men General
Grant would probably invito into his
Cabinet, no one of tho fifty lists
would have contained a single name that
lias ever been sent to the Senate. Everybo
dy’s conjectures would have been at fault,
because General Grant docs not make his
selections on any principle of recognized
fitness. There is not now, nor has there
been from Uis beginning, a member of bis
Cabinet whoso selection was not a surprise
*n<l a nuzzle to tho country. There is not
a member of tho Cabinet who has any po
ll-*cal strength. There was at least a thou
sand lawyers in tho Republican party who
anas well qualified for the Attorney-Gen
eralship as fir. Akerman. Mr. Fish, who
is at (be bead of the Cabinet, and beyond
all comparison the most respectable man
iu it, was quite disconnected from public
uffairs. Out of the office ho exerted no
tuore political infiuenao than any other
man who possesses tho right of suffrage.
Boric was a political imbecile; Robeson,
his successor, was never heard of out of
Southern New Jersey until be was ap.-’
pointed; Rawlins, Belknap and Cox had
quite as little political standing; and even
fioutwcll was rjever thought of as a possi
ble Secretary of the Treasury until he was
appointed.—-Y. Y. IForld.
Judge Akerman once said before the
United States District Court that the
Southern Confederate Government was
the vilest oi all human institutions, or
words to that effect. That was Radical
enough for the extremist of the Radical
party.
Prevalence of Crime.
Our Northern exchanges frequently
complain of the prevalence o( crime and
its apparent increase in theff section of the
country. In alluding to this confessed de
plorable state of eociety in their latitude, it
is not with the view of rejoicing thereat,
but to call attention to the cause assigned
therefor.
Some, who flatter the people with the as
sertion that native Americans are more
honest than those of other nationalities,
point to the congregation of a large num
ber of the criminal population of Europe
in the larger cities.
It is contended that the Judges endeavor
faithfully to suppress crime, and that
many criminals are promptly pnnished, es
pecially if they are of tho poorer class.
Severe punishment does not, however, de
ter men from crimes. Hanging does not
stay murderous hands.
The most rational cause assigned for the
increased prevalence of crime is the rotten
and corrupt moral sentiment of what is
denominated the better class of society. If
a pauper steals a loat of bread to quiet the
gnawings of bi3 empty stomach, he is
promptly arrested, and punishment and
disgrace follow.
If, however, by dishonest pretenses, large
sums are obtained in trade and specula
tions, (so-called); if a shrewd and dishon
est office-holder, by malfeasance, enriches
himself; if, by a combination with any one
of tbc corrupt rings which congregate
and operato in the great metropolitan
cities, (whether they be commercial or po
litical centers,) a lucky individual becomes
a millionaire, neither arrest nor punish
ment follows. Gilded sin and crime go
unrebuked, and poverty in rags, if guilty
of a misdemeanor, is banted down.
If, then, the cause of tho Increase of
erimo is the rotten moral sentiment of men
and women in high social or political posi
tions. (as contended by many Northern
writers,) is it not high time that the appro
priate remedy were applied, and the finger
of scorn pointed, by a virtuous people, at
those who essay, by tho power of big ras
cality, to usurp scats of influence, from
which petty f!)loves wonld bo promptly
and indignantly burled were they to dare
to occupy them?
An awakening to the dangers which
threaten society and popular liberty, and
proceed from unblushing and sliamless
corruption In high places, must soon occur,
else the capacity of the people for self-
government is a myth, and their virtuous
self-reliance has departed forever.
commercial marts far off of the direct
channel of legitimate trade.
Raw material ought to be sent on the
most direct routes to the market where it
is consumed.
Now, take the single article of cotton, in
which Georgia is so much interested. Be
fore the war a bale of it was always worth
at thejgin-bousc its gold value, in a bill of
exchange. The banks were then able and
willing to make the profits that accrued
from purchasing bills based upon the act
ual shipment of cotton, whether the ex
change was above or below par. They
were able and willing to furnistrthe means
to move forward the crop of cotton, be it
small or large. How is it no^?
To move forward a crop of cotton,the pro
cess is as above stated. The factor makes
a deposit currency, shipped often by ex
press at a heavy expense to a point near
or at the place where the cotton first passes
from the hands of the producer. He pur
chases through an agent, cashes bills drawn
upon himself through an agent, and
charges for the exchange the market price.
These charges come out of the band of the
producer at last.
But more: the very accommodating fac
tor or commission merchant in New York
or elsewhere, (but generally now New
York) makes it a condition precedent upon
all the abovo that the cotton purchased
with his money shall be sent to his house,
where commissions fer selling, charges for
storage and weighing are made, to say
nothing of stealage, which is always great-
the further the produce gets from home.
Ail the above charges are against the pro-
dneor’s side of the balance sheet, in add!
tionto the unnecessary freight paid by
carrying the cotton to market by.a circuit
ous route,
These facts are worth remembering, and
will come lip when the Issues are made up
between the party of the people and that
of the monopolists.
A Scripture Lesson.
“The wicked flee when no man pur-
sueth.’
Illustration: Political debauchees who
imagine the devil is after them.
tS7~Tlie Constitutional Convention of
Vermont, the most intense Republican
State in the Union, says the New York
World, rejected tho proposition to give the
ballot to women by a vote of 231 to 1.
19* In New York city the question is,
whether street travel in railroads shall be
above or under ground.
a* It is a remarkable fact that few rail
road companies now publish to the world
their earnings.
ear* The New York Commercial Bulletin
says that there is a redundancy oi curren
cy that cannot be kept in circulation. If
so, why do. not the owners thereof send
some of it down to Georgia where it will
readily command more than legal interest.
National Banks.
Picnic at VinevUle.
From a ticket of invitation before us, the
compliment of which is duly appreciated,
it appears that there is to he a picnic in
YlncviHe, near Macon, on Thursday next,
the 33d instant. It is intended to he a
grand re-union of representatives of the
counties of Bibb, Houston, Pulaski and
Twiggs. When the beauty and elite of
four such counties assemble on the day ap
pointed, in the laboratory building, to
trip it on the fantastic toe,” and Inter
change friendly greetings none can doubt
the realization of genuine and refined en
joyment.
The Gag-Law in Ireland.
Monarchical governments find it difficult
to repress the public utterance of thought
on religious or political subjects. A cor
respondent of tbc New York Herald bas re
cently been arrested in Ireland on account
of political articles published in that paper
winch found their way baefc to Ota “Green
Isle.” WUatls the worid coming to? The
old fcadal masters across the water must
hate the telegraph, the steamship *nd rail
roads.
Standing Army of Thirty Thousand
Men.
By a recent act of Congress, approved by
the Presidpnt, the standing army of the
United States is to consist of 30,000 men
Thecxpenseof each man, per annum, is an
average of $2,000—making au aggregate of
$60,000,000, to sustain a standing army,
unnecessarily large, in time of peace. As
the. South was subdned more than five
years ago, it is supposed that the bayonets
will be used as “forcible logic” against
some of our Northwestern fellow-citizens,
who do not like that 15th Amendment En
forcement Act.
n* fire-—-
Meriwether County—Crops—Agri
culture—Labor—Hailroaa.
Correspondence or The Atlanta Constitution'.)
Lutherville, Ga., June 17,1870.
Editors Constitution: As Meriwether is
no unimportant connty, we presume^ that
some intelligence therefrom would not bo
entirely uninteresting to you or your read
ers.
Crops generally good. Wheat, which is
now being threshed, is turning ont more
busheU per acre than it did last year—a
few planters makingpver forty bushels per
acre. The oat crop was smartly injured
by the May drought; yet we have noticed
some fields that promise a good yield, and
we learn that enough will be harvested to
lessen greatly the demand for corn* until
the latter is made. Corn has a healthy «ol-
or, and bas advanced rapidly in growth
since the beginning of the late frequent
showers. The “ latter rain” will insure a
full crop. Peas are up and flourishing.
Cotton is now promising, yet, should lire
rains continue without longer and warmer
sunshine, it will he materially injured. “
Wonderful change here in the agricul
tural system. Shallow preparation, deep
culture, non-fertilization, and up-and-
down-hill plowing is fast giving placi. to
the hew and improved system of deep and
thorough breaking, shallow cultivation,
fertilizi ng and level ing.
Labor is not so plentiful, efficient and re
liable as it would be if the employer class
were actuated more by benevolenco and
honor than they are by selfishness, avarice,
envy and rascality. We need conceited
action in this respect, based upon the good
principles contained in these words-,
“ Therefore, all things whatsoeverye would
that men should do to you, do ye even bo
to them.”
There are enough blacks in the country
to supply the demand for labor—to till
every acre that would pay—if all who
should be in the fields could be induced
thither. Negro women and half-grown
children, as a general thing, will not “work
out” regularly—a large number not at all.
We omitted to state, in connection with
plant crops, that the incoming nigger crop
n this section promises to be a total fail
ure.
The more enterprising spirits of the
county are taking a lively interest at this
time in a railroad project from Newnan to
Amerlcus. We learn that a Convention,
composed of delegates from the several
counties, mostly interested in the propos
ed road, was held at Geneva, Talbot coun
ty, on the 15th, and that said Convention
resolved to push it to completion. It is to
be hoped that Meriwether, untouched as
she is by railway, will move up in strong
force to aid in building an enterprise that
will havo the effect to increase her popula
tion with public-spirited citizens and good
laborers; to build up her villages, develop
her resources, and restore to her that pros
perity and wealth she had in the glorious
past. J. L. S.
T)ic German Srengerfest.
Our Cincinnati exchanges teem with ac
counts of the great annual reunion of the
Germans, known as the Samgcrfest or Sing
ing Festival, which closed on the 10th in
stant, with a picnic at which 30,000 people
were present. Seven steamboats were en
gaged in transporting the people from tho
city to Short’s Grove. The steamer Ben
Franklin, in attempting to pass under the
bridge, had her chimneys knocked down.
No lives were lost, but the excitement com
sequent upon, the accident was intense.
Immense trains of cars of every description
were also called into requisition, on the In
dianapolis and Cincinnati Railroad, to car
ry the immense mass of humanity, bent on
pleasure-seeking, to the grove.
Tho Germans are a merry people, and
know how to enjoy themselves. When
they work thoy work, and when they play
they play in earnest.
General Dissatisfaction with Aker-
man.—Among tho Republicans in Con
gress there continues to be general dissat
isfaction at the nomination of Mr. Aker
man to be Attorney-General, and a'very
considerable pressure was brought to bear
on the President to-day to induce him to
withdraw the appointment and send in
some other name. The Radicals have dis
covered thit Mr. Akerman served eighteen
months in the rebel army; that he actually
petitioned Congress to remove his political
disabilities; and they were removed by a
vote of two-thirds of each House. The
friends of Akerman admit all this to be
true, but say that he volunteered on
the staff of General Robert Toombs
to avoid conscription, and that he
never performed any service in behalf of
tho Confederate cause while in that capac
ity, and because that, as an old friend,
though a staunch Union man, General
Toombs protected him in that way from
conscription. It is further brought up
against him that he is among the warmest
friends of General Toombs and Alexander
H. Stephens. To Radicals of the Sumner
stripe these are very grave objections to
the confirmation of Mr. Akerman. In
a brief executive session of tho Senate his
nomination was referred to the Judiciary
Committee without comment. Cabinet
nominations made heretofore have gener
ally been confirmed without reference.—
Washington Correspondent Louisville Cour
ier-Journal.
fSTA German telegraph operator has dis
covered a mode of sharpening, with math
ematical accuracy, any number of steel or
iron wires, by tho agency of the magnetic
current. The discovery may be applied to
the manufacture pf pins and needles, and
do away the present process of grinding
the points, so injurious and extensively
fatal to the tyorkmap.
Benjamin Davis, plaintiff in error, vs. T.
B, Myers, Sheriff, defendant in error.
Rule against the Sheriff from Schley.
Isaac Terry, plaintiff in error, vs. T. B. My
ers, Sheriff, defendant in error. Rule
against the Sheriff from Schley.
BROWN, a J.
These two cases, involving tho same
question, were by caveat heard together.
1. A tenant is not entitled to a homestead
or exemption, out of the crop, or its pro
ceeds if sold, till the rent due the landlord
is paid, as neither the crop nor its proceeds
is legally or equitably his property, till he
has paid the rent due for the use of the
land upon which it was made, and the land
lord may follow cither till his claim is sat
isfied.
2. If the landlord has appeared in the
Court of Ordinary, and controverted the
tenant’s right to the exemption till the
rent is paid, and .tho case lias gone to the
Superior Court by appeal, and a verdict
and judgment has been rendered in favor
of the tenant, allowing the exemption, the
landlord having made himself a party to
the litigation, and iiaving taken no steps to
set aside the judgment, is bound by it, and
cannot be heard again to litigate the mat
ter in dispute, or to deny tenant’s right in
a rule against the Sheriff for the money
for which the property was sold, for the
benefit of the party entitled to it. __
Judgment reversed.
W. A. Hawkins, by Lochrane '& Clarke,
for plaintiff in error.
S. H. Hawkins, by M. H. Blanford, for
defendant.
John Durden, plaintiff in error, vs. Car-
hart and brother, defendants in error.
Complaint, etc., from Talbot.
BROWN, C.J.
When a_verdict of the jury had been
rendered against the plaintiffs, and they
appealed to a special jury, and at the se
cond hearing the plaintiffs introduced evi
dence to prove tho account sued on, and
closed; and defendant introduced no evi
dence, but his counsel proceeded to state to
tho jury his points, to-wit: That plaintiffs
bad failed to make out a case; and the
Court refused’ to permit tho defendant’s
counsel to be heard to make any objection
to the rendition of a judgment against
him; on tho ground that be had filed no
plea:
Held, That this .was error. If a defend
ant has filed no plea ho is in default, and
cannot introduce evidence, but this, under
.the long established practice in Georgia,
does not entitle the plaintiffs to a judgment
till they have made out their case by proof,
and tho defendant without a plea, has the
right to object to the rendition of a judg
ment against him; which upon the plain
tiff’s own showing is illegal.
Judgment reversed.
Marion Bcthune, for plaintiff in error.
Willis & Willis, for defendants.
I’hillip Causey vs. James M. Cooper,
Complaint from Randolph.
WARNER, J.
When the plaintiff instituted suit against
the defendant, on an open account for $227
75, and the defendant tiled a plea in which
he alleged “that he did not undertake and
promise in manner and form as the said
plaintiff has shown and complained against
him, and of this he puts himself upon the
connty, etc.” This plea was sworn to by
the defendant. The plaintiff’s counsel
made a motion to strikeout the defendant’s
pica on tho ground that the plea of the gen
eral issue, although filed under oath, was
not an issuable plea; whicli motion the
Court sustained,and ordered the defendant’s
pica to be stricken out, and allowed the
plaintiff to tako a judgment for the'
amount sued for in his declaration:
Held, that the legal effect of a plea of tho
general issue by the defendant, is an abso
lute and general denial of wbat is alleged
ip tli? plaintiff’s declaration, whereby the
fact) of indebtedness is affirmed on one side,
and denied on tho other, which denial of
indebtedness to the plaintiff is an issuable
defense, and if sworn to by the defendant,
entitles him to go before a jury for the trial
of that-issue.
Judgment reversed.
B. S. Worriil, for plaintiff in error.
H. Fielder, for defendant,.
The free banking law, which is now io
vogue, and known as the National Brok
ing syctem, is only & combination of bro
kers’shops. To C$11 them banks is a mis
nomer. The fo.qnd^tjop Qf tbejr credit
the public debt. Their franchises are such
that upon the capital actually invested
they reap a profit of from forty to eighty
per cent.
Being denominated Banks, they receive
deposits. If they accommodate the legiti
mate commerce of the people, it is on the
gagjc terms a street broker would do
The deposits received, except only
much as are needed to meet the daily
checks of customers, iff? employed in the
same way a money or stock-broker would
employ his capital.
For every one hundred thousand dollars
of bonds deposited with the Treasurer of
tho United States, from SO to 90 per cent, of
Bank (or so-called National) currency is
issued. The deposited bonds are held as
security for the redemption of the circula
tion issued.
Institutions engaged in legitimate bank
ing discount real transaction notes and
bills of exchange based upon the existence
of produce, or other commodities or money
fa transitu to or actually in the hands of
the drawee. Yet, to how many of the so-
called National Banks ca» a party wishing
to forward produce to distant markets suc
cessfully apply fer the discount of a bill of
exchange, for whose security a hill of
lading properly attested and signed Is ten
ded? To none except those which are
agencies of some factor or factors, who
have deposited the currency with which to
cash fhe bills of exchange presented to
them on condtionjflajt ffffi produce shall be
sent to the factor or factors whose tnop.ey
{* InJjjna.
We bad authority the other day for
the statement that Governor Bullock, of
Georgia, would be acquitted of all the
charges made against him by bis enemies,
and wc may again state that the forthcom
ing report of the investigating committee
of the State Legislature will entirely ex
onerate him from anything dishonest or
dishonorable in connection with the ad
ministration of the affairs of the State.
Governor Bollock having patiently sub
mitted to this investigation which he solic
ited in answer to the charges of his rebel
enemies, now tarns upon his chief accuser,
the State Treasurer, and impeaches him of
crimes of a very serious character. The,
charges, eleven in number, are now being
investigated by a committee of the Georgia
Legislature.—Washington Chronicle, 18th.
Forty cents per line—only $8!
Railroads.
California bas now 690 miles of railroad,
and confidently expects to bnildToO more
this year.
With a business yielding over a million
dollars in gross receipts, tne Western and
Atlantic Railroad of Georgia is actually
in debt $40,000.
The name of Eufaula, Opelika, Oxford,
and Guntersville Railroad has, under a stat
ute law of that State, been changed by the
corporators to East Alabama and Cincinnati
Railroad.
The Texas and New Orleans Road, from
this time forward, will run its cars to West
Liberty, which is at the edge of the Trini
ty Bottom, six miles this side of the town
of Liberty, which is on the eastern bank
of the Trinity.
In the celebrated Jackson Railroad case
in New Orleans, Judge Dibble has decided
that the PlPCtiqq qf McComb and nutoaf
s of the road on the 2»th of April,
D EC ISIONS
—OF THE—
SUPREME COURTOF GEORGIA
Delivered at Atlanta, Tuesday, June 21,
-[REPORTED EXPRESSLY FOB THE CONSTITUTION, BY
H. J. HAMMOND, SUPREME COURT REPORTER. |
Daniel C. Adams, plaintiff error, vs. L. R.
Clem, defendant in error. Complaint
from Clay.
BROWN, C.J. ' . „
An inn-keeper is bound to extraordina
ry diligence in preserving the property of
bis guest entrusted to his care, where the
guest has complied with ail reasonable rules
of the inn. And If the guest, on depart
ing from the inn, leaves his or her baggage
with the inn-keeper with his consent, he is
liable for its safe keeping as an inn-keeper,
for a reasonable time, according to the cir
cumstances of the case.
Judgment affirmed.
John Doe, ex dem, Robert Reeves, plaintiffs
in error, vs. Richard Roe and James D.
Thompson, defendants in error. Eject
ment from Randolph.
BROWN, C. J.
The fraudulent alteration of a deed by
the grantee which voids It, may, in an ac
tion of ejectment, be shown at law without
going into a Court of Equity.
When the deed is drawn from the defend
ant by notice, and the plaintiff introduces
it in evidence, he may show that it has been
fraudulently altered by the defendant, the
grantee, when he seeks to recover on a
breach of a condition subsequent. The
deed in such case is a necessary link in his
title, and the plaintiff may show that it has
been altered by the defendant.
Judgment reversed.
John C. Wells, by S. W. Parker, for plain
tiffs in error.
H. Fielder, for defendants.
Walker & Chapman, plaintiffs in error, vs.
H. C. Mitchell & Co., defendants in error.
Complaint from Muscogee.
BROWN, C.J. , , „
I. This Court will not control the discre
tion of the Court below in granting or re
fusing a continuance, unless there has
been a manifest abuse of that discretion.
2. When testimony is offered, wbicb,
taken in connection with the evidence be-
tbe minutes of the Superior Court as a part
of tbe award under tho witliin submission.
3. Where there was a suit pending in
Lee county in favor of A, who was a resi
dent of Terrell county, against B, and it
was agreed between them that this contro
versy, as well as another and distinct con
troversy between A against B, C and D
should be submitted to arbitration, and
the award be put upon the minutes of Lee
Superior Court, where B and C resided, and
A subsequently attempted to have placed
on said minutes what he claimed to be an
award in reference to the dispute between
himself and B, C and D:
Held,!. That the award must be resist
ed according to the provisions of the Code,
unless there was some ground for equita
ble interference to set aside the award.
2. That the want ot power in a Court of
law to do anything more than set aside or
confirm the award under the statute is not
a ground for equitable interference, in or
der to settle the whole controversy.
3: That the submission of tho controver
sy to arbitration, to be returned to Lee
county Superior Court, does not give
equity jurisdiction in that connty against
A. who resides in Terrell, exeept to set
aside the avowal, and not for that, unless
there be some reason why the statutory
remedy for assisting the same he insuffi
cient. Judgment reversed.
Vason & Davis, C. B. Wootten, by Loch
rane & Clark, W. A. Hawkins, for plain
tiff in error. Lyon, DeGraffenrid & Irvin,
for defendant.
John Doc, ox. dem, Samuel Edy and oth
ers, vs. Richard Roe, C. B. Shivey,
McKAY, J. >
Tiie existence, genuineness and contents
of a deed shown to be lost or destroyed,
may be proven by a certified copy of the
record of it, if it has been properly and le
gally probated for record-.
Judgment reversed.
H. Fielder, for plaintiff in error.
A. Hood, by Kiddoo, for defendant.
D. F. Bryan, and others, vs. Tho State.
Proceedings against Road Commission
ers from Randolph.
McCAY', J.
In a proceeding against Road Commis
sioners before the Superior Court, under
701 section of the Code (Act of 1866), for
neglect of duty, it is error in the Judge to
compel tho defendants to answer under
oath questions, tho answer to which may
subject them to a fine, forfeiture or penal
ty. Judgment reversed.
H. Fielder, for plaintiffin error.
S. IV. Parker, Solicitor General, for the
State.
Y. D. Scales vs. Ordinary of Chattahoochee
County. Action of Trespass on the.case
for negligence from Chattahoochee.
McCAY, J.
Under the laws of this State an action
does not lie against the county for dam
ages caused by neglect of the proper au
thorities to repair a bridge; not appear
ing that it was a toll-bridge, or such an
one as was built by a contractor, and there
was a failure to take the proper bound of
indemnity required by sections 710 and
711 of the Code. Judgment affirmed.
Brown, C. J n concurred.
WARNER, J. dissenting.
This was an notion brought by tho plain
tiff against the Ordinary of Chattahoochee
county, to recover damages alleged to have
been sustained in consequence of the bad
and unsafe condition of a bridge on a pub
lic road in said county. There was a gen
eral demurrer to the plaintiff’s declaration,
which was sustained by tiie Court below,
and tho plaintiff excepted. The Inferior
Courts or this State having been abolished
by tbe Constitution of 1863. and tho duties
of tbo Justices thereof having been trans
ferred to the Ordinary of the respective
counties, tiie question is, what were the
duties and liabilities of the Justices of the
Inferior Courts oi the respective counties
or this State, under the present - existing
laws thereof, In relation to keeping in good
repair the public roads and bridges, v ''
to become their surety on said note, they
telling him the land wasbound for the
debt:
Held. That these facts did not furnish
evidence to justlsfy the inference that P.
was engaged in the fraud, only so a3 to
authorize in tho complaint of allowing the
land to be sold for the payment of the note.
2. Under section 3429 of tho Code, either
the plaintiff or defendant may, as a matter
of right, amend his plcadlugs at any stage
of the cause, and the fact that the case is
before tho jury and part of the argument
had, on the evidence, does not render it too
late to amend. If, however, tbe amend
ment be immaterial, and he refused by the
Judge, tbe refusal is notagroundfor a new
trial.
3. Parties in the final trial have thirty
days after the adjournment of the Court to
except to the decisions made on the trial,
and they are not concluded if, on inquiry
by the Judge, during the trial, they fail to
answer or say they are content with his
rulings, but such a request or demand by
the Court is no ground for a new trial, un
less It appear thattijeconductof the Judge
was calculated to prejudice the case before
the jury.
Hiram Tison, et al. vs. Stephen A. Sellers.
Arbitration from Schley.
McCAY', J. •
-Where there is a suit pending In any
Court of this State, the parties may, under
a rule of the Court or by agreement in
writing, submit the dispute to arbitration,
ana to any number of arbitrators, and tbeir
award may bo made the judgment of the
Court where the suit 13 pending. Error,
though the proceedings have not complied
literally with tho provisions of title 28,
chapter 1st, of the Code, since such an award
is not strictly, under the system, provided
by that chapter.
Judgment affirmed. -
E. H. Worriil, S. H. Hawkins, for plain-
niff in error.
M. H. Branford, B. Hill, for defendant.
George A. Brown vs. Tho State. Keep
ing a k'eno tabic. Muscogee.
A table, on which or over which Is a
hollow globe, containing halls or numbers,
the drawing out of which determines
which of several parties shall take a “ pot,”
to which each has contributed, is a gaming
table, under 4465th section of the Code,
and one who keeps and presides at the
same, that playing and betting for money
may be done thereat, is guilty of keeping
a gaming table.
It 13 not error in the Court to charge the
jury as to what constitutes a gaming ta
ble, and to say to them, after charging them
that they were the judges of the law and
the fact, that this did not mean that they
might do as they please, or might disre
gard tbe charge of tbe Court.
Thomas W. Grimes, Jr., Ramsey and
Ramsey, for plaintiff in error.
S. J. JChornton, Solicitor General, by
M. H. Blandford, for tho State.
John T. Crim vs. Stephen A. Sellars. Mo
tion for new trial from Schley.
WARNER J.
When a motion for a new trial was made
in the Court below under tho 6th section of
the 11th article of tbc Constitution of JSG8,
on the ground that the verdict of the jury
was illegal, and it appearing from the re
cord that there was evidence on both sides
in regard to the matter in controversy be
tween the parties:
Held, That, according to the repeated
rulings of this Court, that, in order to make
tbe verdict illegal, it must have been ren
dered without evidence to support it, or so
strongly and decidedly against the weight
of evidence as would authorial the Court
to interfere and set it aside, and that as the
verdict in this case does not come within
that rule, it was not illegal; there being
sufficient evidence in tbe record to sustain
and support It, and that the Court did not
err in refusing to grant the new trial, on
the ground of illegality in the verdict of
tho jury.
Judgment affirmed.
M. H. Blandford, for plaintiff in error.
S. Hall, by M. Smith, C. B. Hudson, for
defendant.
was legal and binding; that McComb and
party are consequently dniy elected direct
ors, anfl tfcqt general Beauregard et al.
are usurper*.
Large bodies of hands are at work at
several points on the New Orleans and
Chattanooga Railroad, between Algiers
apd Donaldsonville, where the road will
cross tho Lafourche. The contract is made
to have tbe cars running by tbe lath of De
cember. On the river they are playing
wild with the plantations by employing all
their hands. Wc heard of several large
plantations left without laborers to com
plete the culUyatiop of tbeir crops.
fore the jury, tends to illnstrate the issue,
or to aid in ay; jvjng at the truth, it should
not be rejected, though it may appear'to
be irrelevant when taken by Itself.
Judgment reversed.
Blanford & Miller for plaintiffs in error.
Smith & Alexander for defendants.
A. F. Owen, plaintiff in error, vs. James
S. Willis, Administrator, defendant in
error. Complaint, &C-, from Talbot.
BROWN, C. J.
A contract made 1st October, 1866, though
for a consideration existing prior to the
scaling ordinance of 1S65, is not embraced
within the ordinanep. When parties to
contracts made during tbe war have, since
the publication of tbe ordinance of 1865,
met and adjusted the equities between
themselves without fraud, mlstake or im
position, and one of them has given the
other a new note qr obligation, gs a settle
ment of the differences' between them, the
case falls with'in neither the letter nor
spiritof the ordinance, arid thjs Court will
not reverse the decision of the Judge of
the Superior Courts, who orders a plea
which sits up such a state of fact* to bo
stricken.
Judgment affirmed.
E. H. Worriil & Geo. N. Forbes, for
plaintiff in error.
Willis & Willis, ior defendant.
Peter F. Mahonc, administrator, vs. David
L. Howard, et al. Equity from Talbot.
WARNER, J.
Wlien Mi as the administrator of H-,) in
January, 1865, sold at public sale under an
order of the Court of Ordinary, certain
parcels or tracts of land as the property of
his intestate, a portion of which were pur
chased by one of the distributees of said
estate in his own right, and a certain other
portion thcrof was purchased by said dis
tributee as the guardian of tho other dis
tributees of said estate, and the adminis
trator took the individual notes of the pur
chaser, in his own right, and as guardian
for the amount for which tbe land sold
without security, and executed deeds con
veying said land to the purchasers thereof,
and afterwards filed a bill alleging that at
the time he sold, tho land, took the individ
ual notes of the purchasers, and executed
tbe deeds of conveyance, that he believed
that the assets of the estate on final distri
bution would be sufficient to cover the
amount for which tbe land sold as
the distributive shares of the pur
chasers thereof, but that the emancipa
tion of tho slaves belonging to
said estate has left the Baid purchasers
and distributees with scarcely any means
to pay the purchase money for said lands
save the land itself, and the prayer of the
bill is, that tiie purchasers of said land
may be restrained by injunction from sell
ing the same, and thqt the deeds executed
to the purchasers by the complainant as
administrator may be canceled, and that
the purchasers of the land sold at the ad
ministrator’s sale may be decreed to con
vey the lands back to tho administrator.
It appears on the face of the complainant’s
bill, that there were other lands, and other
property belonging to said estate, the
amount and disposition of which, by the
administrator, is not shown;
Held, That since the vendor’s Hen has
been abolished in this State, that the ad
ministrator has no equitable liep on the
land lor the unpaid purchaso money, and
that he does not make such a ease by hts
bill as entitles him to the relief prayed for,
and that the demurrer to the bill was
properly sustained by tho Court below,
Judgment affirmed.
Marion Bethune, for plaintiff in error.
Willis & Willis and J. M. Matthews, for
.which
have been transferred to the Ordinaries of
the several counties. The 1679th section
of the Codo declares, “ that every corpora
tion acts through its officers, and is respon
sible for the acts of such officers in the
sphere of their appropriate duties.” The
525th section of the Code declares, that
‘•every county which has been, or
may be established in this State,
is a body corporate, with power to
sue or be sued In any court.” Tho 526th
Section declares that “ suits against a coun
ty must bo against tho Inferior Court.” By
the 710th section of the Code, the Justices
of the Inferior Court of the several coun
ties have authority “ to appoint the plans
for trie erection of public bridges, and to
make'suitable provision for their erection
and repairs, by letting them out to the low
est bidder, hiring hands, or in any other
way that may be for tiie public good and
agreebly to law, and to require sufficient
bond and good security for tbo faithful
performance of such work and contracts,
and to indemnify for all damages occa
sioned by a failure so to do.” The 731st
section provides that all contractors for the
establishment of bridges shall be liable for
such damages as may accrue from a want of
good faith in performing their several con
tracts; and that, if no bond or sufficient
guarantee has been taken by the Justices
of the Inferior Court, that the county is
also liable for the damages. Tho 242d sec
tion of tho Code declares that the private
property of tbc citizens of a county shall
not be bound by any judgment obtained
against tiie county, but such judgment, if
binding, shaU be satisfied from money
raised by lawful taxation. The 5545th sec
tion provides that if the Grand Jury shall
fail or refuse to recommend the levy of a
lawful tax sufficient to discharge any judg
ment that may have been obtained against
the county, or any debt for the payment,
whereof there is a mandamus, or the nec
essary current expenses of the year, the
Justices of the Inferior Court may levy the
necessary tax without such recommenda
tion. Tbc 547th section delares that the
right of a creditor of a county to compel
such tax levied is the same as set forth in
section 537 touching tax for building,which
John R. Jones, plaintiff in error, vs. John
A. Payne, defendant in error. Motion
to dismiss from Lee.
By the Court—BROWN, C. J., delivering
tbe opinion.
A motion to docket and dismiss this case
was made by Judge Lyon, at the last
term of this Court, on tho ground, among
others, that the Clerk of the Superior Court
of Lee county had failed to make ont and
certify tho transcript of tho record, within
ten days after the bill of exceptions waS
filed in his office, as required by tbc stat
ute. The motion was overruled, and tbe
case, which reached the office of the Clerk
of this Court too late for last term, was or
dered to be placed on the docket for this
term.
It was reached in its order and argued.
But before we had pronounced any judg
ment, tho case of Seay vs. Treadwell, In
which Judge Lyon was of counsel for plain
tiff in error, was also reached in its order,
and’dismissed on motion, on two grounds:
1st. That all the evidence in said case, on
tho trial in the Court below, was not em
braced in tho bill of exceptions, as required
by tbc rules of this Court; and 2d. On the
ground that the Clerk of the Superior
Coart did not make out and certily the
transcript of the record for more than two
months after the expiration of the ten days,
and no sufficient excuse was shown for the
delay; and no diligence was shown on the
part of the plaintiff in error,or his counsel,
to secure this discharge of duty by the
Clerk.
The decision in this case at the last term
was afterward quoted upon us, and Judge
Lyon, who had left the Court, applied
through his law partner, Colonel Irwin,
for permission to renew his motion to dis
miss this case. It is our wish, in the dis
charge of our duty, to apply the same rules
to ail alike, and on account of our great re
spect for the able counsel who feel ag
grieved, wo have consented to rc-hear tiie
motion to dismiss, in this irregular man
ner, after the oase lias been argued upon
its merits. By this, however, we wiU not
be bound as a precedent,
' The earlier decisions of this Court, so far
as we are advised, were uniform; that if
the Clerk of the Superior Court failed to
make out and certify and send up to this
Court a transcript of the record within ten
days after the bill of exceptions was filed 1
in his office, the writ of error was dis
missed. See Beall vs. Scott, 4th Ga. 625.
Leak vs. McDowell, Gth Ga. 264. Gth
Ga. 317.
The Act, organizing tills Court under
which those rulings were made, provides,
that, if any Clerk shall fail or refuso to send
up the transcript of the whole record in
any cause, according to tho provisions of
this Act, or he or- any Sheriff shall refuse
Judge of tho Superior Court. If the Su
premo Court is in session at the time, and
within a convenient distance, the applica
tion may bo made to it. If not, tho exer
cise of proper diligence wonld require that
it bo made to the Judge of the Superior
Court.
The rule as now laid down by statute is
in fact more stringent than tbat laid down
in the Act organizing thls^CourL That Act
was not explicit, that any diligence was
necessary to save the rights of parties, in
caseof the failure of tne clerk to do his
duty. It was so construed by the Court,
however, as to require that he applyjor the
mandamus, which the Court was author
ized to grant, or tho case be dismissed.
But tho present statute in express terms
requires vigilance on the part of the suitor,
to save bis rights in such case.
But we are asked what damage has the
defendant in error sustained by the clerk’s
failure to certify, and send up the bill of
exceptions, and tho record within the
time prescribed; if he has in fact sent it up,
and it Is here, when tho case is called in Us
order. There may bo no actual damage.
Then why dismiss the case ? For the rea
son that tho law has not been complied
with, and it la not legally brought to tills
Coqrt.
The statute requires the bill of excep
tions to be tendered, and certified by the
Judge, within thirty days after tbo ad
journment of the Court, at which tho de
cision was made. Suppose it is tendered
and certified thirty-one days after the ad
journment of the Court, and all the par
ties are in this Court when the case is
called; what damage has the defendant in
error sustained by the performance of the
required duty, only one day after the time
fixed by law ? Probably none can be
shown. Then why dismiss the case ? Be
cause the law has not been compUedwith,
and the ease in not legally hero. Again*
suppose the plaintiff in error has failed to
notfty the dclendant in error of the signing
of the bill of exceptions, within ten days,
qjid has tailed to file it in the clerk’s office
within fifteen days, the same may be said
as to damage. Yet in all such cases there
is but one uniform ruling. The case is
dismissed because the law is not complied
with. ISO in this class of cases it is not for
us to say whether the defendant in error
has sustained actual damage or not; it is
enough that he can show that the case is
not brought here in accordance with the
law, and he is entitled to have it dismissed,
and to stand upon his rights qs they were
adjudicated in tiie Superior Court.
Again, the familiar law is qnoted, that
every officer is presumed to do his duty
till the contrary is shown, and it Is said*
why may not parties stand by this rule, and
take it for granted that such duty has been
performed till the contrary appears. That
rule may apply generally, but it docs not
apply here, lor the simple reason tbat the
statute repeals it by requiring the party
to use diligence to sec that the officer docs
discharge his duty, or, in other words, to
use diligence to secure its discharge.
The Constitution of the State, in exist
ence at the time this Coart was organized,
required cases to be disposed of here with
promptness, to prevent delay in litigation.
Since then, the people have met in conven
tion three different times, and each conven
tion bas formed a constitution, and there
has been no relaxation of the rule, except
that the Court may, in its discretion, with
hold its judgment for one term after the
case is argued. The provision of tlio pres
ent Constitution is in these words:
The Supreme Court shall dispose of every
ease at the first or second term, after such
writ of error is brought; and in case tbo
plaintiffin errorshall not be prcx>ared at the
first term to prosecute the case, unless pre
vented by providential cause, it simile be
stricken from the docket,and tho judgment
below shall stand affirmed. In case tho
Court may, in its discrctiou, withhold its
judgment until the next term after the case
is argued.
Now, it is a grave question whether the
Legislature can pass any act to delay a case
till the second term, by putting the party
bringing It up upon ordinary diligeuce.
Must not the diligence that keeps the case
from being stricken from the docket be
such extraordinary diligence tbat the fali-
ure.to get here anil prosecute it at the first
term may be the result ot providential
hindrance. That seems to be the plain
language of tiie Constitution.
defendant.
John Jones vs. John A. I’ayne, et al. De
murrer to bill from Lee.
or neglect to perform any duty Imposed
- " 1 ' Id Superior Court.
1. Minors cannot submit their rights to
arbitration so as to bind themselves, norcan
this want of capacity be cared after tbe
submission by the appointment of a guar
dian ad litem by tbe arbitrators, nor even
by tbe Chancellor, unless there be a suit
pending to which the minors are parties,
and' the submission be ‘tfndfer ap ordej of
the Court*
2. To make a good statutory award, tbe
submission under the statute must be in
writing, and when there was a submission
in writing, and the parties by a subsequent
pural agreement chose a new arbitrator,
and submitted a portion of tbe dispute to
him, his judgment, whatever may be its
effect as a settlement of the dispute, is not
last named section provides for ap applica
tion to the Judge the Superior Court
for a mandamus.
By the 710th section of the Code, it is
made the duty of tho Justices of the In
ferior Court to exercise a general supervi
sion over the public bridges of tho county,
and sec that they are kept in proper order:
Held, That whatever may have been
the common law rule, as to the liability of
counties to be sued for damages for neg-
lectof duty imposed by lqw on tho officers
thereof, that, under the general provisions
of the Code, before recited, suit may now be
brought against them as corporations, and
are responsible as such corporations, for
the acts of their officers, either of omission
or commission, in the sphere of tho appro
priate duties as required by law. in the same
maimer as the officers of any other corpor
ations, and that the judgment which the
plaintiff may recover, wUl be rendered
against the county in its corporate capaci
ty, and is to he paid'bv tUefeVy df a taxon
the citizens of the county as prdyidfd by
the Code:
Held, also, That inasmuch as the contrac
tors to build public bridges In the respec
tive counties, are required by law to give
bond and good aecunty to indemnify for
all damages for their failure to erect, and
keep in good repair, such public bridges,
that the legal presumption is, that the
connty is indemnified against ultimate
loss, should a recovery be Held in this case
against the County. In my judgment,
tiie dismissal of the plaintiff’s action in
the court below, oq q general ^emurrer
thereto, was error.
Peabody and Brannon, for plaintiff in
error.
No appearance for defendant.
Jacob M. Gay vs. Benjamin J. Peacock,
" Benjanqin Peacock, et ai. Equity from
Schley.
McCAY, J.
1. Where P. had advqnced money to B.
and C„ one of whom was p.'s sop, to buy
a tract of lqnd with the understanding tbat
the title wag to be taken in P.’s name, and
B. and C. bought the land, and had the ti
tle made to B, but iiaving diverted a part
of the money to other purposes, they en
gaged to give the vendor their note with
security for the part left unpaid, and sub
sequently after the deed to P. was duly ;e-
a statutory award, and cannot be put upon corded, they procured, by fa|sp pretenses.
upon him by this Act, sal ... , T
while in session In any district in this
State, may issue a writ of mandamas to
such officer and enforce obedience thereto,
if necessary, by attachment; and in case
that such refusal of any such officer have
delayed tho party applying for or tender
ing a bill of exceptions as aforesaid, beyp.pd
the time limited in the foregoing part of
this Act, he shall not thereby lose nfs rem
edy, but may proceed aa if the time limited
had not expired.
Here nothing is said about diligence on
the part of tho plaintifl in error to secure
tho discharge of duty by the officer. But
this Court in Duke vs.Trippe, Gth Ga. 321,
in construing that Act, says: “ And in all
sucli cases the party applying for such
writ, shall' not lose his remedy, but may
proceed as if the time limited In said Apt
had not expired.” In other voids, if the
time has expired, and the Clerk lias not
done his duty by certifying and sending
up the bill of exceptions, the case must be
dismissed, unless the party has applied for
the' writ of mandamas to compel him to
send it up. That was the legal diligence
required by this Court; and if that was
wanting tho case was at an eud,
Th.c diligence whicli wqc ‘then required
of tiie party as a condition to the continu
ance qf Ills case in Court, after the default
Of the Clerk, by the construction plqced
upon the statute of this Court, is now re
quired by positive cnaotment.
Section 4'461of thpCo.dc now enacts that;
If any Sheriff or Clerk, or other officer
shall fail to discharge qnj’flhty required of
him in connection with the foregoing pro
visions, upon petition, the Supreme Court
or the Judge of tho Superior i'-ouft, may
compel the performance of such duty by
manaamas, and no suitor shall. lose any
right by reason of the failure of sucli offi
cers to discharge their duties, when hp has
been guilty ot no fault himseU, and has
exercised ordinary diligence tftsccure their
discharge o.f duty.
It will be observed that it is not enough
that the suitor has been guilty of no fault
himself. But he must haye exercised or
dinary diligence to secure the officer to dis
charge liU duty. What is meant by ordi
nary diligence to secure the discharge of
duty by the officer? We think it requires
tbe party to havo exercised ordinary dill-
cenco to obtain a mandamus agawst the
officer for the failure to do his doty. That
is the legal remedy giycn him to. secure the
discharge of the. duty neglected by the
Clerk, and if he fail to oursne this legal
remedy, with ordinary diligence, the case
will be dismissed on motion. In other
words, the defect Is cured only by the ac
tive pursuit of this legal remedy, when the
Clerk has neglected bis duty. *
Under the original Btatutc, tlio applica
tion for tiie writ of niqnda'Mas could only
be made tq the Supreme Court. To expe
dite the remedy, the Code provides that it
may be made to the Suprcm.e Court, or the
Butadmit that the Legislature lias (low
er to prescribe reasonable rnics as to the
manner of bringing up cases, ntui to say
how long before each term a case alia 11 be
docketed to make it returnable to that
term; stiU, it must make rcasonablo rules
keeping in view tiie imperative mandate
of tho Constitution; that tbe plaintiff In
error shall be prepared to prosecute tho
case at tho first term. Wiicn a bill of ex
ceptions is sued out, all the subsequent
steps required by the Act of the Legisla
ture must, be promptly taken within tlio
timCTequired; and, If by taking those steps
promptly as required, tho case can reach
the office of the Clerk of this. Court twenty
days before the commencement of tiie
term, as provided by the statute, tiiat is
the first term of the writ of error; and if
the plaintiff in error does not use all tho
remedies tbe law gives him against every
officer for neglect of duty, and discharge*
promptly every duty tho statute requires
of him, or show that he was prevented by
providential cause from so doing, the caso
must bo stricken from the docket, and Ilia
judgment below stand affirmed.
We may observe here, that tbe Constitu
tion is imperative that the case shall be
disposed of at the second term. Even
providential cause is an excuse at tbe first
term only; as is very apparent by an ex
amination of tho clause of the Constitution
above quoted. • *■
It is not probably in oar power to lay
down any rule as to tho precise time within
which a mandamas shall be obtained by the
plaintiffin error, against a defaulting ollt-
cer to secure his cdse from the stern rule of
the Constitution, which requires it to bo
stricken from the dooket, if ho is not pre
pared to prosecute it at the first term. In
a case like the present, wo think it reason
able to require that he apply by himself, hr?
agent or attorney, at tne Clerk’s office on
the day or tho day after the duty is required
to bo performed by the Clerk, and to as
certain whether it lias been done, and if
not, that he apply to this Court, if in ses
sion, or to the Judge of the Superior Court,
with reasonable promptness for a manda.-
mas against the defaulting officor. Tha
precise time within which the application
is made must depend on tbo distance from
the county, where the case was tried, to
this Court, or the Judge of the Superior
Court, and the condition of the parties,
and other circumstances of the case.
Another reason for dismissing tbo case,
if the necessary diligence has not been
used, though the caso may have reached
this Court, is found in the fact that this dil
igence is exacted in order to carry out tho
requirement of the Constitution and the
public policy of the State; that cases skali
tie disposed of in this Court without delay.
If the rulo of diligence is relaxed in one
case, ar class of cases, because the case af
terwards reached herewithout tbc exercise
of the required diligence, tiie relaxation
will sanction a loose practice, which, in
many cases, will result in delay and the loss
of a term.
We are of opinion, therefore, that the en
forcement of the rule in all cases is most
in conformity to. the requirements of tbe
Constitution. If tho duty bas been per
formed by the Clerk after the expiration of
the time allowed him for that purpose, be
fore the party could, by tbe exercise of or
dinary diligence, have obtained a writ of
mandamus, we will not dismiss the case.
But if the plaintiff in error, by the exercise
of ordinary diligence, could have obtained
the mandamus, before the duty was per
formed, there is in that case a failure on tin
part, and his case is obnoxious to the ob
jection,
Apply these rules to tlio case now under
consideration, and we are satisfied it is not
our duty to grant the order.
The record in the case is a very volumin
ous one, and the plaintiff in error, by his
counsel, shows on oath, that, with tiie cler
ical aid which the Clerk of the Su|x-rior
Court could command in the little village
of Starkvlllc, where the case was tried: he
could not do ids other necessary dutics,anil
prepare and certify tbc transcript of tiie
record within the time, ami that the )hain-
tiff in error not only did all lie could to get
tlio Clerk to prepare tiie pajiers in time,
but he aided him to make them out, ami the
whole was completed, as tiie rule required,
within three days after the expiration of
the time. As the Judge of the Superior
Court did not reside in the county, ordina
ry* diligence would hardly have enabled the
plaintiff to obtain a writ of mandamau
within the three days.
There is a very clear distinction between
this case and the case of Seay vs. Tread
well, in which (lie duty was nut (icrioi mod
fur about Vwo months after tbc expiration
of ;lio time, and no excuse was given for
its non-performance, aud no diligence
shown by the plaintiff in error to secure its
performance.
The motion to dismiss this ease is over*
nMi