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DECISION S
SCFBEnE COURT OF GEORGIA.
Ddbertd in Atlanta, Tuesday, Oct. 14, 1873.
[■wniTin ZZPBESSLT FOB TO* COFSTITCTIOW, BT
BKKBT JACKSOW. StJPBZJIE COURT EEFOETEr. J
X). Jaynes «fc Son vs. R. W. Sheffield. Com
plaint, from Early.
WABNER.C.J.
This was an action brought by the plain
tiffs against the defendanton an open amount
for the sum of $102 87 for medicines re
ceived by the defendant to sell on commis
sion for the plaintiffs. On the trial of the
as it appears from the evidence in the
record, the defendant received from the
plaintiffs the medicines embraced in the
amount prior to I860, to sell on commission,
that he sold most of them during the war.
and had a small portion of them on hand at
the time of the trial. In September, 1860,
defendant wrote a letter to the plaintiff*, in
which he stated he had not sold but a Bmall
portion of their medicine, and that it was
not necessary to make any settlement at that
sima, but I will make a settlement as soon as
I think I have sold medicine enough to
amount to anything. Plaintiffs made a de
mand on defendant for a settlement of the
account some time in 1871. This suit on
the account was commenced 7th August,
1872. The Court charged the jury that ir the
medicines embraced in the plaintiffs’ account
were placed in the hands of the defendant by
them prior to the war to be sold on com
mission that suit must have been brought
thereon before the first of January, 1870, or
it would be barred by the statute of limita
tions, and they must find for the defendant
To this charge of the Court the plaintiffs ex
cepted. In view of the facts of
this case the charge of the Court was
error. The medicines were delivered
by the plaintiffs to the defendant in trust to
sell the same for them upon a contract that
the trust should^ faithfully executed and
performed on ms part; that trust was still
subsisting when the demand was made by
the plaintiffs on the defendant for a settle
ment in 1871, which he promised to make in
his letter of September, 1860, as soon as he
had sold enough of the medicines entrusted
to him for that purpose to amount to any
thing. Besides, the trust was not fully exe
cuted and performed at the time of the trial,
for the defendant then testified that he had a
portion of the medicines on hand. The ac
tion was not barred by the statute of limita
tions when the action was commenced in
August, 1872. it being within four years from
the time a demand for a settlement was made
by the plaintiffs on the defendant for the
medicines entrusted to him for sale, and be
had done no act up to that time repudiating
the trust, or the right of the plaintiffs to
have an account from him and settlement
for the medicines entrusted to him.
Let the judgment of the Court below be
reversed.
R. H. Powell, by brief, for plaintiffs in
error.
R W. Davis, by brief, for defendant
W. A. Hanson & Co. vs. E. B. Loyless & Co.
Complaint, from Terrell.
WARNER, C. J.
This was an action broughtby the plaintiffs
against the defendants as partners on two
promissory notes for the sum of $1,271 00,
signed E. B. Loyless & Co. Loyless filed a
plea of non esi factum, alleging that the notes
were signed after the dissolution of the part
nership and without his authority. There
was also a countin the plaintiff’s declaration
for goods sold and delivered to the defen
dants as partners before the dissolution of
the partnership for which it was alleged the
two notes were given. On the trial of the
case the Jury found a verdict for the defen
dants. A motion was made for a new trial
on the ground that the verdict was contrary
to the evidnece, and without evidence to sus
tain it, and because the verdict was contrary
to law, which was overruled, and the plain
tiffs excepted. It appears from the evidence
in the record that Loyless and Peeples were
partners, doing business in the name of R R
Loyless & Co.; that in the year 1867 they
purchased a bill of goods of the plaintiffs
in New York, for which two notes were
given. In January, 1868, the partnership
was dissolved. After the two notes
given for the goods became due, and after the
dissolution of the partnership, to-wit: on the
28tb of September, 1863, the two notes now
sued on were made and time of payment ex
tended, for and in the place of ihetwo notes
originally given for the goods. The firm
name of E. B. Loyless & Co. was signed by
Peebles, one of the partners to these last
named notes. There was no evidence that
the plaintiffs knew of the dissolution of the
partnership of E. B. Loyless & Co. at the
time the partnership name was signed to the
notes by Peebles in New York, except what
was contained in the paper signed by Root,
the plaintiffs, and some of the other creditors
of Loyless & Co. for an extension of time.
That paper is dated 7th of April, 1868, in
which Mr. Root states that Mr. Peebles, rep
resenting Messrs. E. R Loyless & Co., owes
about $16,000 all in New York city, has good
assets to the amount of 40,000, that he (Root)
is the principal creditor—$5,600—that bis
debt is secured, and could enforce
its collection, but having entire
faith in Mr. Peebles, and in
his manmagement, I am willing to wait npon
him on condition that his other creditors will
do likewise, Mr. Peebles pledging himself
that he will use all possible dilligence in col
lecting his debts and selling only for cash.
In order to bring home knowledge of the
dissolution of the partnership of E. B Loy
less & Co. to the plaintiffs, who have been
dealing with them as partners, at the time
the notes were signed by Peebles in the part
nership name, the evidence should be clear
and satisfactory. In our judgment, there
was not sufficient evidence under the law in
this case to charge the plaintiffs’ with a knowl
edge of the dissolution of the partnership at
the time the notes were executed by Peobles,
one of the partners in the firm name, to dis-
diarge the other partner. It is a significant
fact that Peebles, who was present when the
notes were executed, and who was examined
** a witness at the trial, did not stale any-
mmg about the plaintiffs knowledge of the
dissolution of the partnership. Why did
n .ot the defendants prove it by him if the plain
tiffs had such knowledge at the time the notes
were signed by him? The verdict was con
trary to law, because the jury found in favor
of both defendants, Peebles not having made
any defense to the action.
Let the judgment of the Court below be
reversed.
Wooten & Iloyle, for plaintiffs in error.
JJLHarper. by Richard H. Clark, for
ant also made a motion to dismiss the whole
proceeding on the ground that an infant
married female under twenty-one years of
age could not maintain an action of lioel for
a divorce against her husband, whicn motion
was overruled, and the defendant excepted.
If the wife is of sufficient age to enter into
a marriage contract, no good reason occurs
to us why she may hot maintain an
action in the Courts to dissolve it
for any of the causes authorized
by the laws of the State. Marriage contracts
and settlements made by infants who are of
lawful age to many are binding as if made
by adults—Code, 2,692. The complainant in
this case was of lawful age to contract mar
riage and to make a marriage settlement,
and, such contracts made by infant females
being as binding upon them as if made by
adults, it would seem that they would be as
competent to maintain an action to dissolve
the marriage contract for any of the causes
authorized by law as an adult married
woman would be. If an infant married
woman is bound by tbe contract as an adult
married woman would be, it is difficult to
perceive why she should not have the same
right to prosecute a suit for a dissolution of
that contract as an adult married woman
would have. There was no error in annull
ing the motion to dismiss the proceedings.
We cannot say that there was such an abuse
of the discretion of theOurt below in allow
ing the temporary alimony in this case as
would authorize this Court to interfere and
control it, although we should have been
better satisfied if the amount allowed
had been less but <es it is in the
discretion of the Court to modify its order
from time to time as the condition and cir
cumstances of the parties may require, we
will not interfere to control it Courts can
not to be too careful in granting temporary
alimony and counsel fees in applications for
divorce, so as not to encourage tbe dissolu
tion of the marriage contract for mercenary
considerations, the more especially when the
amount is to be paid ont of the property of
the husband when the wife had no property
at the time of the marriage as in this case.
A reasonable allowance for her support pend
ing tbe litigation should be made, taking into
consideration her physical condition and
ability to contribute something towards her
own support iu the meantime. Every case
however, must depend on its own merits and
the particular circumstances connected with
it as well as the rank and condition in life of
tbe parties.
Let the judgment of the Court below be
affirmed.
Lyon & Irvin, for plaintiff in error.
Poe & Hall, by R D. Harrison, for de
fendant.
Oscar E. Besore vs. Tallulah E. Be sore
Alimony, from Bibb.
WARNER C.J.
The complainant having filed her libel for
divorce against the defendant, made applica
tion to the Court for the allowance of tem
porary alimony, and for payment of counsel
fees. The Court below, after hearing evi
dence as to the amount of the defendant’s
property, and the condition of the parties,
ordered that the defendant Bhould pay the
plaintiff forty-five dollars per month for
temporary alimony, and should pay to her
counsel one hundred and fifty dollars as a
retaining fee in the libel suit for divorce, to
which the defendant excepted. The defend-
Emma Bradley vs. John Johnson, adminis
trator. Equity, from Muscogee.
WARNER, C.J.
This was a bill filed by the complainant as
the widow and heir at law of Bradley against
the defendant as the administrator of Brad
ley for an account and distribution of Brad
ley’s estate, with a prayer for an injunction.
The defendant denies that the complainant is
the widow and heir at law of Bradley. On
the trial of the case the defendant offered and
read in evidence an exemplification of the
record from the Court of Ordinary of Mus
cogee county, in which in it appears that
Johnson nude application to that Court for
letters of administration on Bradley’s estate,
to which the complainant entered a caveat
claiming that she was entitled to the admin
istration as the widow of Bradley. The Or
dinary granted the administration to her.
Johnson entered an appeal to the Superior
Court from the decision of the Ordinary, and
on the trial of the appeal the jury found the
following verdict: “We, the jury, find that
Jobn Johnson, applicant, is entitled to ad
ministration on the estate of Thaddeus W.
Bradley.” Judgment was entered on this
verdict in exact accordance with the terms
thereof, and certified to the Ordinary and
made the judgment of that Court,
and Johnson was appointed by the
Ordinary administrator on Bradley’s
estate. The Court charged the jury
“that if the question whether plaintiff was the
widow of deceased was made and adjudi
cated between the parties to this cause in tbe
proceedings had before the Ordinary an J on
appeal, and it was therein and thereby ad
judged that tbe plaintiff was not the widow
of deceased, such sdjudiCktion was conclu
sive of the fact in this case, and she would be
thereby barred of her right te maintain her
present suit.” To which charge of the Court
the complainant excepted, and the question
is, whether the judgment of the Court of
Ordinary granting the letters of administra
tion on the estate of Bradley to Johnson, as
the same appears in the record, was conclu
sive evidence that the complainant was the
widow of Bradley so as to conclude her
from showing that she was his widow on
tbe trial of the equity cause, and was a bar of
her right to maintain that suit ? The rule as
to tbe conclusiveness of judgements, as
stated by Lord Chief Justice DeGrey in the
Duchess of Kingston’s case (20th Howell’s
titate trials, cited by Professor Greenleaf,
voL 1st, section 628) is, that the judgment of
a Court of concurrent jurisdiction, directly
upon the point, is, as a plea, a bar, or as evi
dence, conclusive between the same
parties, upon the same matter,
Henry L. Benning, G. E. Thomas, for
plaintiff in error.
Peabody & Brannon, for defendant.
Joseph W. Huffvs. Andrew J. Odom—Com
plaint, from Muscogee.
WARNER C. J.
This was an action brought by the plaintiff
against the defendant to recover the posses
sion of a mule, or the value thereof, which
the defendant had in bis possession, under a
possessory warrant sued out against the
plaintiff therefor. The plaintiff proved that
he purchased the mule from one Baugh, in
Columbus, in February, 1871, for which he
pud $165. The defendant proved the pos
session and ownership of the mule in April,
1865; that the mule disappeared from bis
>ossession and never saw it until he found it
: n the possession of the plaintiff in February,
1871. It was further shown by the defend
ant that the mule was taken from his posses
sion in April, 1825, by some men dressed as
Federal soldiers, who took it to Macon and
put it up with others, and was then sent off
to Atlanta and there sold, at private sale, for
$160. There were no officers with the men
who took the mule from defendant’s posses
sion; were all privates.
The Court charged the jury that if
they believed the mule in controversy
to be the same one taken from tbe
defendant by Federal soldiers in April,
1865. the title of defendant was not
divested unless the same was condemned by
a Court of competent jurisdiction, and that
the plaintiff acquired no title by his purchase
from Baugh, unless the same appeared, to
which charge the plaintiff excepted. Al
though the charge of tho Court may have
been correct as to the capture of property
on the high seas by the maritime power of the
Federal Government, we do not think it was
applicable to the capture of personal prop
erty on land by that government, but the
personal property captured on land bv the
regular organized authority of the Federal
Government, should be disposed of accord
ing to the orders and regulation prescribed
by the government and its military authori-
ities for that purpose. In this case the plain
tiff does not pretend to derive his title to the
mule from either the civil or military au
thorities of the Federal Government, or from
any one claiming title therefrom, if, indeed,
the mule had been lawfully captured by the
military authority of that government, which
it had not, according to the evidence in the
record. In Worthy vs. Kinamon (44th
Georgia Reports, 297) this Court held, that
title by capture during a war, can only be
set up by the organized and recognized par
ties to tbe war, or by those claiming and
acquiring title from said organized ancf recog
nized parties. Although the Court may have
eired in charging the jury that condemna
tion of the mule by a Court of competent
jurisdiction was necessary to divest the title
of the defendant, still the verdict was righ|;
under the law and facts of the case and we
wiil not disturb it.
Let the jndgment of the Court below be
affirmed.
Joseph F. Pou for plaintiff in error.
J. M. Russell for defendant.
di
rectly in question iu another Court: that
the jndgment of a Court of exclusive
jurisdiction, directly upon the point, is in like
manner conclusive upon the same matter,
between the same parties, coming incidentally
in question in another Court tors different
purpose. The judgment of the Court of Or
dinary offered in evidence in this case is the
judgment of a Court of exclusive jurisdic
tion as to the granting of letters of adminis
tration on intestates’ estates, that judgment
was conclusive as to the fact that letters of ad
ministration had been granted to Johnson on
Bradley’s estate, when offered in evidence on
the trial of the equity cause, but it was not
conclusive on that trial upon the point as to
whether the complainant was the widow of
Bradley, the judgment does not decide any
thing more, and does not purport to decide
anything more than the fact that Johnson
wa9 entitled to the administion on Bradley’s
estate, that judgment is not an adjudication
directly upon tbe point that the complainant
is not the widow of Bradley, and does not
purport to decide that cuestion. Moreover,
it does notaffimatively appear from the ver
dict and judgment thereon that the fact of
her being the widow of Bradley was the only
question made and decided by the judgment of
tne Court of Ordinary, that it was one of the
questions decided, is inferred by argument
from the judgment gnd proceedings in the
Gourt of (Ordinary. Tbe judgment itself is
not directly upon that point, and unless the
judgment of the Court of Ordinary was ren
dered directly upon that point, as shown by
the record, the complainant was not estopped
by that judgment lrom proving that she was
the widow of Bradley, on the trial of the
equity cause. Besides, estoppels should be
mutual. If administration had been granted
on Bradley’s estate to the complainant in
stead of Johnson, would the judgment of the
Court of Ordinary granting administration^
her have estopped the heirs of Bradley, on s
bill filed by them against her for distribution
from showing that she was not his widow 7
We think not. In our judgment, the charge
of the Court was error, because it did not ap
pear from the judgment rendered by the
Court of Ordinary, that the question whether
the complainant was the widow of Bradley,
was necessarily decided by that Court, inas
much as that judgment does not appear to
have been rendered directly upon that point;
and it was error to assume that it was sc
rendered. Hunter vs. Davis, 19th Ga. Rep..
418. Let the judgment of the Court below
be reversed.
James P. Sharpe vs. Wright Kennedy. Affi
davit of illegality, from Terrell.
McCAY.J.
1. Where, there is a levy upon land en
tered by the sheriff upon an execution, but
by mistake, the entry is not signed by tbe
the sheriff the failure to sign is not
fatal to the levy. The sheriff may amend it
by adding his signature.
2. An affidavit of illegality to an execution
setting up facts os a reason why the execu
tion is proceeding illegally, must distinctly
present the matter relied upon
so that, if not denied, the Court
may past judgment intelligently, or if
denied, that the jury may have distinctly
before it the matter in issue.
Judgment affirmed.
Lyon & Irvin; Hoyle & Simmons; C. B.
Wooten, for plaintiff in error.
F. M. Harper, by R H. Clark, for defend
ant.
William Doegherty vs. Hampton S. Smith.
Same vs. W. b. Chipley.
Same vs. Jacob Fogle. Tax affidavit. From
Muscogee.
McOAY.J.
In accordance with the opinion of a majori
ty of this Court, in the cases known as the
“tax cases,” at the last teim of this Court,the
judgment of (the Court below is reversed, on
the ground that the Act of October 13, 1870,
is in violation of At tide 1, Sec. 10, Paragraph
l(of the Constitution of the United States.
Judgment reversed.
A. T. Akerman, A. B. Culberson, for plain
tiff in error.
Henry L. Benning, R J. Moses, W. F.
Williams; for defendants.
William M. Tennille vs. Lucy Phelps et al
Equity, from Quitman.
McCAY, 3.
A testatrix made her will in 1861, and died,
By one item of her will she directed her
executors to keep up her plantation in Quit-
man county, and work her slaves thereon
declaring that she desired this to be done
“for the purposes hereinafter to be men
tioned.” In the same item she directed her
executors, in case the plantation should be
unprofitable, or there should be dan-
e of a depreciation or loss of
properly, to sell the same in
their discretion and invest the proceeds in
interest bearing securities. In the next item,
she gave certain amounts of money to her
nephews and nieces, “to be paid out of the
plantation without interest, after paying all
expenses arising from its prudent manage
ment”
In another item she gave all the use of her
estate to her son—her only living child—ap
pointing her husband his guardian, and di
recting that her husband should hold the
property as trustee for her son, and receive
the profits in trust for his use during the life
of the husband, but without accountability.
He to preserve the corpus of the estate for
the son. She appointed her husband and his
brother her executors.
The testator died in 1864. The slaves
were emancipated, and it then became im
practicable to carry out the scheme of work
ing the plantation with the slaves, and thus
raising the means to pay these legacies:
Held, That, taking the whole will to
gether, the testatrix intended the legacies to
her nephews and nieces to be paid only out
of the profits to be made by working the
slaves upon the land, and that as this became
impossible on the emancipation of the slaves,
the legacies to tbe nephews and nieces fail
with the failure of the fund, and the corpus
of the estate went to the son free from any
charge to pay the legacies to said nephews
and nieces.
Judgment reversed.
Herbert Fielder, James H. Gueny, for
plaintiff in error.
Jno. T. Clarke for defendants.
John F. Landon, Assignee, $&, vs. John
King. Attachment, from Morgan.
McCAY, J. . ,
When a defendant in an attachment is ad
judged a bankrupt within four months after
the issuing of the attachment, and the As
signee comes in the Court where the attach
ment is pending and makes it known that the
defendant has been so adjudged a bankrupt
and moves to have attachment declared dis
solved :
Held, That the Court ought to grant the
motion, and that it was not necessary for the
Assignee to make himself a formal party to
the attachment before moving to have it de
clared dissolved.
Judgment reversed.
R J. Moses, for plaintiff in error.
Peabody & Brannon; H. L. Benning, for
defendant.
Platt Taylor vs. The State. Assault with
intent to rape, from Terrell.
TRIPPE, J.
On the trial of an indictment for an assault
with intent to commit rape, the defendant
early in the night, soon after dark,” entered
the house, where there was but one room,
and where the father, mother and three sis
ters, aged respectively 19, 17 and II years,
were in bed, approached the bed in which the
oldest and youngest sisters were lying, pulled
down the cover and put his hand on the loner
portion of tbe person of the oldest sister.
She gave the alarm instantly, and the defend-
antly immediately fled from the house.
Counsel for defendant requested the Court to
charge the jury, that if tbe prisoner went
there with the intent to desist as soon as he
found out that the woman would not consent,
he is not guilty of the charge, and the jury
will so find:
Held, That the request was a proper one
under the facts in evidence, and should have
been given by the Court in his charge to the
jury.
Judgment reversed.
F. M. Harper, by R H. Clarke; C. B.
Wooten, for plaintiff in error.
Jame3 T. Flewellen. Solicitor General, by
H. & I. S. Fielder; W. G. Parks, for the
State.
Henry J. Fillengin and wife vs. R. T. Thorn
ton et al. Injunction, from Randolph.
TRIPPE, J.
A State Court will not grant an injunction
restraining a party from applying for the
benefit of the Bankrupt Act under the bank
rupt law of the United States.
Judgment reversed and injunction modi
fied.
Worrill & Chastain, for plaintiffs in error.
H. & J. L. Fielder, for defendants.
John M. Gunn et al., vs. E. T. Thornton.
Injunction from Randolph.
TRIPPE, J.
I. The sale of a homestead inFeb’y,1871.
under the 11th section of the Homestead Act
of 1863, did not discharge it from the lien of
judgments then existing against the owner
thereof, which were founded on debts created
prior to the time when the present Constitu
tion went into operation.
2. Where the purchaser of the homestead
gave his note for a portion of the purchase
money, and a judgment creditor of the ven
dor sued out a garnishment and obtained
judgment thereon against the purchaser for
the amount of the note, prior to the decision
of the Supreme Court of the United States!
in the case of Gunn vs. Barry; and afterward
levied the judgment against the vendor on
the land, equity will enjein him from enforc
ing the j udgment obtained onthe garnishment
for the unpaid portion of the purchase money.
3. The complainant in this case does not
show that be had put improvements on the
land ot Euch character and to such an extent as
will entitle him to an accounting therefor,
for reimbursement.
4. What the rights of th»>purchaser may
be, as to the proceeds of the sale by the
Sheriff under the judgments against the
vendor of property purchased by him with
the money that has been paid bv such pur
chaser, we do not now determine, as that
question is not properly made in the record
ior a decision by this Court. If there be
such a sale, he can be heard when the ques
tion as to the distribution of the money
arises.
Judgment reversed and injunction modi
fied.
John T. Clarke, A. Hood, E. L. Douglass,
for plaintiffs in error
H. & L L. Fielder, for defendant.
Losses by tbe Great Storm off Nova
Scotia.
Washington, October 13.—A report of the
movements and damage done by the great
storm(of August 24, has been prepared at the
Signal office, and will be eiven in full to the
public in a few days. 1,032 vessels, of which
435 were small fishing schooners, are known
to have been destroyed during the 24th and
25th of August, in the neighborhood of the
Gulf of St. Lawrence, and the Atlantic
shores.
In addition, a large number, over 90 ves
sels, were destroyed by the same storm in its
course before reaching Nova Scotia, making
a total of 1,222 vessels destroyed within a
few days. Two hundred and twenty-three
lives are definitely reported lost, and the
most moderate estimate of the numerous
cases in which whole crews are stated to
have been lost swells the number to nearly
500. m m
florin Hot Springs, those who are not
prosperous exoress it in this wise: “I’m J.
Cooked; Tm Tuckered; I’m City Scripped ;
I’m Graphicised; I’m jimjammed, burs ted,
suspended, played out, financially the worst
treated and most unfortunate cuss of the
can’t-pay class in the country.”
Vermont talks of increasing its Gov
ernor’s wsges above the present rate of $2 75
a day, so as to raise him nearer equality with
journeymen mechanics.
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The Insurance Companies and Fire Commissioners,
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GEORGIA—Fulton County.
TO THE SUPERIOR COURT OP SAID CO JNTY.
HpHE petition of J.C. Watkins, J. N. Langston. J.
JL M. Cranch, J. G. Thrower, W. H. Barrow, H. H .
Dickson. J. C. Bogers, A J- McBride, J. D Ho mes,
H. Franklin, J. T. Bichberg, a- KMer. W.
S. Grumbling, R. A Holliday and W. It. Han-
lieter, respectfully thoweththat they have associated
themse'.ves together far the purpose of accumlating a
fund from monthly contributions, fines and interest,
on investments and losns for the benefit of tbe mem
bers thereof, sufficient to enable the Association to
purchase a lot and erect thereon a building to be
known as “Odd Fellows’ Hall, in tbe city of Atlanta.”
For the purpose of effecting said object, your petition
er’s desire and ask for a charter incorporating them
and their future associates nn^er the name and style
ot “The Odd Fellows* Hall Association of Atlanta,’,
and under that name and style to uso a corporate seal,
to sue and be Bued, to elect officers and to make all
ruleaand by laws necessary to carry out the objects
of said Association, not inconsistent with tho Consti
tution and laws of the United States or
of this State. The term of oald incorpora
tion to continuo for twenty years. Provided,
however, the same may at any time be dis
solved by a vote of two-thirds of the members.
Tour petitioners further show that from the nature
and object cf Ihe'r associalou they have qp capital
s’oek and they aik ttat their petition may ba granted
as asked for.
L. J. GLENN & SINS,
Attorneys for Petitioners.
A true extract from the minutes.
W. H. VENABLE.
©Ctl6-law4w Deputy Clerk.
B. F. Chatham vs. J. J. Bradford. Distribu
tion of Money, from Muscogee.
McCAY, J.
Whilst it is the duty of the Clerk of the
Superior Court to keep a proper index of his
books of record, so that one searching the
records may easily find what is or Is not con
tained therein, yet a deed or mortgage which
ie in fact recorded, does not cease to be notice
and to be properly recorded, simply because
the index to the record book fails to show
where it may be fonnd.
Jndgment affirmed.
Moses & Downing, for plaintiffs in error.
Peabody & Brannon, for defendant
Southern Express Company vs. Martin Con
ner. Case, from Muscogee.
TRIPPE, J.
1. Where an action instituted in the name of
a plaintiff who was adjudicated a bankrupt
pending the suit,and the trustee selected by tbe
creditors, with knowledge of such suit, did
not have himself made a party, but consented
that the suit proceed in the name of the
original plaintiff, and no exception made to
the Court allowing the case so to proceed—
but the defendant excepted to the refusal of
the Court to charge the jury that if they gave
a verdict for the plaintiff they should find
for him for the use of the trustee:
Held, That it was not error in tbe Court
to refuse so to charge.
2. The right of the trustee, if he has any, to
the money when paid, or of the defendants
to be protected in paying it to the proper
party, may be secured by proper stepi being
taken for that purpose.
Judgment affirmed.
R J. Moses, for plaintiff in error.
Henry L. Benning, Joseph F. Pou, Pea
body & Brannon, for defendant.
A Struggle With a Devil Fish—A
i.iver nearly Crushed.
Mr. Charles B. Brainerd, of Boston, in
writing to the Scientific American about
specimens of tbe aevil fish, relates this inter
esting incident.
Tbe strength which these creatures possess
is almost beyond comprehension, as is evinced
by what took place when my pet (?) was cap
tured. He had seized hold of a sub-marine
diver, at work ia tbe wreck of a sunken
steamer off the coast of Florida. The man
was a powerful Irishman, who claimed to
weigh 300 pounds. His size and build fully
verified his statement, and to use his
own language* “the baste landed on
top of my shoulders and pinned my arms
tight. I felt my armor and myself being
cracked into a jelly.” It seems that he was
just about being brought to the surface, else
the monster would have killed him, for he
was suffering so from the terrible embrace
that he could move no part of himself.
When dragged on to the raft from which he
had descended, and finally released, he had
fainted. The men on the raft seized the fish
by one of its wriggling arms and tried to pall
it off, bat could not break the power of a
single one of the suckers. The fish was
only removed by being dealt a heavy
blow across the sack containing the
stomach. This sack stood stiffly up
above the eyes, while the eyes stood out like
lobster eyes and gleamed like fire. The
monster is, all in all, one of the most fright
ful apparations it coaid be the fate of man
to meet It fulfils in every particular the
horrible features attributed to it in Victor
Hugo’s “ Toilers of the Sea.” Notwithsta d-
ing the severity with which the able French
man has been criticised for “creating a non
descript with his weird .imagination,” the
truth most be granted that his “nondescript”
has an actual existenoe, as is experienced by
the specimens in Brighton and Hamburg, as
well as my own.
MsmeHt.
A fter HO Tears of trial has proved to bo
tiic beet Healing anil pain «ubdu—
tug Liniment itt tho World.
It io recommended with unbounded assurance ttt
nil cases; ot (bits, Bruises, Bums, Sprains, Rheuma
tism. Hard Swelliuc*. Bites, chilblains. Stiffness ot
tbe joints, 1 rozcul'eet, l ars, Ac., Ac., among all
persons, and for t pmiiiH. Founders, Ringbone, Poll-
Evil, Scratches. Wind-Galls, Hoof-ale, Spavins, Spring
halt, .Saddle. Co’Jr.r and Harness Gails; also diseases
of the Lyo andlhrin
Horses, Moles or Cattle.
mum
WZU.AISO <
Cure Neuralgia, Rheumatism, Gcut, Lams Back,
Balt RheumTroisonous Bitee, External Rone and
Musclo Affections, Sore Nipples, Ac., and may be
justly termed the panacea for aU
EXTERNAL "WOUNDS
Remember, this Liniment did not
spring np in n day or n year.producing tux
HOST ABSUBD JINX' UNNATUUAI, CUBES CU1HE1} BT
New-Bobn ass Hush booh Listmejctb. Hu t we have
the experience of over thirty yei*m of trial, with
the most substant .-.l results, end by a multitude of
witnesses.
It the Liniment is not as recommended, the
Money will lie Refimdei
Do not be imposed upon by using any other Lini
ment chiming the same properties or results. They
are a cheat and a band, he sore and get nothing
but + '
Mmn
ffff*SOU> BT ATT. DnUGGISTB jLSD COUXmT SIOEE8 Al
2Set, 50c. and $1.00 per Cottle.
None* Sizs or Bottle, Emx. Ac.
~ " LYON MEG. CO.
HAGAN’S,
THE GRANDEST _SGHEME_ HEB KNOWS.
Fourth Grand Gift Concert
FOB THE BENEFIT OF THE
Public Library of Kentucky.
12,000 Cash Gifts S1,500,000
EVSEY FIFTH TICKET DRAWS A GIFT.
$230,000 for $50.
T HE Fourth Grand Gift Concert authorized by ape-
cialactcf the Legislature for tbe benefit of the
Public Library of Kentucky, will take place in Public
Librarv Hall at Lout;.villa. Ky.,
WEDNESDAY, DECEMBER 3d, 1873.
Only elxty thousand tickets will be sold ana one-
half of these are intended for the European Market,
thus leaving only 30.C00 for sale in the United States,
where 100,000 were disposed of for the Third Concert.
The tickets are divided into ten coupon* or parts and
haveon their back the Scheme with a full explana loo
of the tnooe of drawing.
At this concert which will ba the grandest musical
display ever witnessed in this country the unprece
dented sura of
$1,500,000,
divided into 13,000 c*eb gifts will be distributed by
lot among the ticket holders. The numbers of the
tickets to be drawn lrom one wheel by blin children
and the gifts from another.
LIST OF GIFTS.
ONE GRAND CASH GIFT $270,000
ONE GRAND CASH GIF A' 10»,000
ONE GBAND CASH GIFT . £0.000
ON EG HAND CASH GIFT 2-V.009
ONEGBAND CASH GIFT 17/00
10 CASH GIFTS $10,000each 100 000
5.000 each 150,000
MKI I each 50,000
500 each 40.000
400 each 49,000
>00 tacb 45,000
201 each 50.000
100 each 32.509
£0 each 550.C00
33 CASH GIFTS
60 cash gifts
80 GASH GIFTS
100 CASH GIFTS
150 CASH GIFTS
950 CASH GIFTS
3*5 CAS GIFTS
u,oao cash gifts
TOTAL, 12,000 GIFTS, ALL CASH, amount-
ing to $1,500,000
The distribution will be positive whether all the
tickets are sold or not. and the 12,000 girts all paid In
proportion to the tickets eoid—all unsold tickets bo
ng destroyed as at the First and bocond Concerts
and not represented in th» drawing.
PRICE OF TICKBT3.
Whole tickets $50 00; Halves $25 00; Tenths, oreach
coupon $600; Eleven Whole Tickets for $S00 0J;22«
Ti'kets tor $L0T0 00; 113 Whole Tickets for $5.00000;
227 Whole Ticket; ‘
than $500 00 worth of ’
The unsurpassed success cf the Third Gift Concert
as well ss the satisfaction given by the First and
Second makes it only necessary to announce the
Fourth to lnBure the prompt sale of every ticket. The
Fourth Gift Concert will be conducted in all its de
tails like theThlrd, and full particulars may be learned
from circulars which will be sent tree from this office
to all who apply for them.
Tickets now ready for sale and all orders accom
panied by tbe money promptly filled. Liberal terms
given to those who buy to sell again
. E. BRANIBLETTE.
Magnolia Balm
A FEW APPLICATIONS MAKE A
Pure Blooming Complexion.
It is Purely Vegetable, and its operation is seen and
felt at once. It does away with the Flushed Appear
ance caused by Heat, Fatigue, and Excitement. Heals
and removes all Blotches and Pimples, dlapeUin g dark
and unsightly spots. Drives away Tan, Freckles, and
Sunburn, and by its gentle but powerful Influence
mantles tho faded cheek with
. YOUTHFUL BLOOM AND BEAUTY.
3oiai
; and Fancy Stores. Depot
GEORGIA—Be Kalb County.
Ordinary’3 Orgies, October 13th, 1873.
S A. PENDLEY hsB applied for exemption of
• ’ ersocaky, and I will pass upon the tame at
. 1 o’clock a. w'onthe 24th da*o> October. 1873. at
ny office. JOHN B, STEWARD,
ocUG-wtw Printer’s fee $2 Ordinary.
etefor$10,000 00 Nodlscouhtonl
r Tickets at a time.
AgentPubl. Libr. Ky. and Manager UlitConcert.
Public Library Building, Louisville, Kv-
fFor tickets or information apply at the Drug
Store of
REDWING & FOX,
Atlanta. Georg jb*
sngl9—d tnes & thnrs & w till decl
GEORGIA—DcKalb 'County.
Ordinary’s Office, October 14th, 1873.
W ARREN J. CLARK having applied to me for
letters or administration on the estate of
Sarah Mitchell and Claracy Mitchell, deceased.
This is therefore to notify ail persons cot.c< raed to
file thtir objections ir any they have within the time
allowed by law. else lett rs will be granted to said
applicant as applied for. JOHN B. STEWARD.
oct!6-w3Cds Printer’s fee $4 Ordinary.
LOOK AT THIS I
W ARRANTED. NO CUBE NO PAY, IF AP
PLIED IN DUE TIME. I have practiced
medicine for the last fifteen years, twelve years of the
time I have had a thorough experience in tbe prac
ticing and curing of CANCERS, OLD ULCERS, etc.,
ot both male and female. I offer my services to
those afflicted with such upon the above terms. Of
fice, Peachtree street, Atlanta, Georgia.
octl5-wlm DR. F. O. FORD.
AM prepared to furnish Southwest Georgia fixtr-
Ing dressed and matched, in large or small tots;
Mouldings and 8croU Work at low prices; Laths,
cheaper than any one, to consumers. I have them
manufactured at my mill. No second profits, but a
small prefix, aoove cost of manufacturing.
E27"Ca?h orders receive prompt attention.
oct£-dlw**lm A. MURPHY.
SaMiM On Mis
ASD HORSE POWERS.
GEARED AND BELT SHELLERS FOR
HAND AND POWER.
Catalogues sent when re
quested.
Parties "writing, •will please
state in what paper they read
thin advertisement.
SEMPLE, BIRGE &^C0.,
AGEHT8 FOB THE MAHUFACT0BEB8,
ST. XiOTJIS-
octlG-d&wlt
ASSIGNEE’S NOTICE.
N orthern district of Georgia at Madi
son onthe 16thday of September, 1873.
The under signed herebv gives notice of his ap
pointment as assignee of the Arm ot Arnold & Du
bose and of Frank Amo d and James K. Dubose, of
Washington, in the county of Wllk«s and State of
Georgia, within laid district, who have been adjudged
bankrupts upon petition or creditors by the District
uou of said district. JAMES E. HARPER,
No. 225 Broad street, Angaeta, Georgia.
sept23-law3w