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THE CONSTITUTION. BY W. A. HEMPHILL & CO. I.W. AVERY, Editor. TERMS OF SUBSCRIPTION: WEEKLY CONSTITUTION, per annum... **00 »lx months.... DAILY CONSTITUTION, per annum 10 00 ft Lx months 5 00 one month 100 n imc entered on tbesubscription book niitiTthe money J* paid. * . _ _ ADVEuYISniESTS in'crted at onedol- jaHvrr >nnare of ten line*.or space to that amount, f the ir«t. and flflv rents for each oubtcmiptn* *crtloti, without, recant to length of a>lrertbcmcnt or time publi«hcd. 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