Newspaper Page Text
6.
THI3 ATLANTA WEE K L Y STTN.
developing, for the particular purpose of
Radicalizing the South in time for the
THE DAILY .SUN.I ■war, and to resume their obligations to
1 . I the Union, under the Constitution, was
Wednesday Morning October 18. [ “trampling on the rights,” and “the very elections in November 1872.
■~ L - " ' " “ life of the State,” then this charge is well j Prominent members of the Ailministra-
Tlie Washington Chronicle. founde d; but it comes with an ill grace tion decided yesterday that civil and
a I * military arrangements should be periect-
^ This Central Organ of tbe Centralizing 1 * rom *' 1C ( l uar ^ er lfc docs - , ed for the wholesale arrest of members of
The assertion, however, that what the so-called Ku-Klux-Klan, and the
did in tbe matter, was with j country need not, therefore, bo surprised
of securing a seat in the | ^ therecentprodamation of the Presi-
Admiuistration at Washington, in its is- j
sue of die 7th inst., which has just reached . we
us, seems to be not at all pleased with our j a vev?
reply to the second letter of "Law and \ United States Senate, is as groundless
Order,” republished, some week or more ; au< ^ rec ^ ess 88 ® * 8 graceless. If e\er
ago, in The Sun. Fancifully jumbling: action was prompted by motives en-
our position, therein stated, with that of
some Missouri Democratic editor, so-
called, (whose name or paper is not given,
leaving the inference to be drawn that
the whole of this part of tbe effusion is
but tbe work of tbe imagination), the
Government Organ thus discourses upon
the constitutional remedies proposed by
us, in that article, for getting rid of the
fraudulent amendments;
“The Missouri Democratic editor goes
the undiluted Kuklux programme. Mr.
'Stephens treads the ground more
gingerly, and would simply ‘down
with the Radicals, down with the
bayonets,’ without advising just now the
use of the bayonet. Mr. Stephens says,
down with those ‘highest of crimes,’
the reconstruction acts and the constitu
tional amendments; they are ‘frauds’
not yet ‘setup,’ but ‘attempted.’ The
Kuklux Missouri editor responds, ‘Down
with the fifteenth bedamment! Equal
taxation and the rightful representation
of all tbe States,’ or another fiufid! Mr.
Stephens wants the old Constitution.—
The Kuklux answers, I understand you—
‘this is a whiteman’s Government,’and
the old Constitution says so. Let us
fight, says the Kuklux. Wait awhile,
says Mr. Stephens. We are not yet ready.
We have Tennessee, Kentucky and Mary
land. We shall soon have Georgia. We
shall make Virginia all she should be, in
due time. She is not well with us yet.—
We must not strike too soon. We may
carry tbe Presidency, and then, with the
whole South a unit, the hour will have
come. Those ‘highest of crimes’ per
petrated by a ‘Rump Congress’ will then
be avenged, and the South will get her
own again.
“Such is the political moral of Mr.
Stephens’ course. He masks himself in
his superior learning and astuteness, and
keeps the reins on his thoughts, but bis
paper is, in fact, no matter what dis
claimers he may make, a copious foun
tain of Kukluxism.
“ <The evil that men do lives after them;
The good is oft interred with their bones.’
“Mr. Stephens is * fiviDg the Southern
heart,’ and doing evil in Georgia, and,
indeed, iu all the lato insurrectionary
States, which will Uve after him for years.
Why should he do this ? He, who was
really so indifferent to the Confederate
cause ?
“He trampled on the lights—yea, he
trampled out the very life of Georgia in
1866, to obtain a seat in tbe National
Senate; and when he was refused a seat
he turned upon the body and called it a
‘Rump Congress.’ Would it have been
a ‘Rump affair’ if Mr. Stephens had been
admitted to a seat in it ? Would be have
taken a seat in an unauthorized aud
‘ usurping’ body ? Would it not have
been a constitutional body, an author
ized body, a very respectable body, if
Mr. Stephens had got his seat in the
Senate V”
Now, in reply to all this stuff, for it is
entitled to no other term of characteriza
tion, so far as our teachings are con
cerned, we have a few plain things to say
to the Government Organ, and some cat
egorical questions to propound, to which
we challenge distinct and direct answers:
s* 1. Is there a single fact stated, or posi
tion assumed,by us, in the article reviewed
and thus commented on, which the Chron
ide will venture to deny or controvert? If
so, let it be specified. Wewearno “masks,”
nor do we deal in misrepresentation, in ad
dressing the people upon the subjects of
their rights and liberties. On those sub
jects it is our purpose “to fire the heart,
if possible, not only of the people of the
South, but of the North, and every sec
tion of the country. It is our purpose,
as clearly stated, “to fire their hearts,
not for resistance or violence to the ad
ministration of the laws by those tempo
rarily clothed with power to expound and
execute them, but to arouse the freemen
of the land, every where, to rally to the
polls, and put those into official position
who will protect their rights, and not
sanction gross and palpable usurpations
upon them.
2. Is there a sectional idea or thought
in a sentence or line uttered by us in that
or any other article penned by ns ? If
so, let it be specified.
3. Have we ever recommended any
other resort or mode, for the redress of
Governmental wrongs of any sort, except
the peaceful instrumentalities of the Con
stitution ? Is it an “evil” that will live
after us, to put forth our utmost exertions
to keep alive, in the hearts of the people
of all the States, a love of Liberty, and an
ardent attachment to those free Institu
tions which they received, as a glorious
inheritance, from a common ancestry ?
4. Upon what grounds does this Organ
of Centralized Imperialism fonnd its as
sertion, that we were indifferent to the
Confederate cause ? What was that cause
but the great, inestimable right of local
self-Govemment, on the part of the Peo
ples of the several States of this continent?
Was any man’s whole life ever more de
voted to any cause, than onr’s has been, to
this, before, during or since the war ? If
so, let specifications to the contrary be
made. We, of tbe South, have aban
doned its maintenance on the field of arms,
but not on the forums of Reason and pa
triotic Public Sentiment-
• 5. Upon what pretense or pretext,
other than bald, un sustained assertion,
does this Organ of Imperialism charge us
with having “trampled on the rights—
yea, with having trampled ont the very
life of Georgia, in 1866, to obtain a seat
in the National Senate ?” If advising
the people of Georgia to accept,
in good faith, the results of the
tirely disconnected from all personal ob
jects or interests, and in consideration,
alone, of what was considered best for
tbe public good; ours was so prompted,
on that occasion; just as it is now, in at
tempting to “fire the hearts” of the people
everywhere, for a maintenance of
their rights in every constitutional mode.
Moreover, we thought, and still think,
that “the trampling ont of the very life
of the State” was the act of that Faction,
justly styled the “Rump Congress,”
which, after the obtainment of
every object that the war had
been waged for by them, pnt Geor
gia - and nine other States under
Military Rule, for the purpose of exact
ing from her and the others, at the point
of the bayonet, a ratification of those
stupendous frauds known as the 14th and
15th Constitutional Amendments!
Will the Imperial Organ ven
ture to maintain, before an intelli
gent world, that this act was not
utterly “outside of the Constitution;”
that it was not a gross and pal
pable usurpation of Power ? We affirm
that it was, and we wish to know if issue
is joined with us upon this point; for
upon it rests the whole question of the
validity of these so-called amendments.
We propose to stand or fall, not in any
renewed conflict of arms, but before an
intelligent and patriotic public, upon the
immutable Truth of our proposition.
Liberty, like Truth, may be crashed to
earth for a season; but, like Truth, she
will rise again.
The eternal years of God are hers. 1
The Imperial Organ may be assured
that this “ is the political moral of Mr.
Stephens’ course 1”
6. The Chronicle asks, if the usurping
Faction (justly styled the “Rump Con
gress,” from its resemblance, in many
particulars, to the usurping fragmentary
Parliament, so known in English History)
would have been a -“Rump affair,” “if
Mr. Stephens had been admitted to a seat
in it ?”
To this we say, leaving Mr. Stephens
out of the question, if Georgia, and the
nine other States, had been permitted to
be represented in it—in the House and
Senate—as they were clearly entitled to
be, under the solemn guaranty of tbe
Constitution, that it would not have been
a “Rump Congress.” It would have been
a Constitutional Body, whether a respect
able .one or not. What made it a ‘ ‘Rump
affair,” was its rejection of more than a
fourth of the States of the Union, and
setting itself np as the Congress of all
the States?
Will the Imperial Organ venture to
maintain that they had any authority,
whatever, for this most iniquitons act;
except what they most flagitiously and
tyrannically assumed; and assumed, too,
over the very letter, as well as the spirit,
of the Constitution which they were
sworn to support ? Was not this a usur
pation as gross and flagrant as any to
be fonnd in the annals of Representa
tive Governments ? Was it not “tramp
ling out the very life of the Union ?
Was it not after the war was over—af
ter all its objects were obtained—after
peace was declared—nay, more; was it
not for the very purpose of defeating
what the war had been avowedly waged
for by them; that is, the restoration and
preservation of the Union of equal
States ? Will the Imperial Organ
venture to maintain that this usurpation
or any that followed it, by this “Rump
Congress,” with a view of Revolutioniz
ing the Governments of these ten States,
and, in this way, of Revolutionizing the
Federal Union, was, in any sense, alegiti
mate result of the war against Seces
sion? Was it not the beginning of a
new war, by Congress, so-called, against
the Constitution ? Was it not
“trampling out of the very life,
not only of the States severally, but
of the States united ? Was it
not trampling out the very life of the
liberties of this entire country?
We so understand it. We so maintain.
Our object, therefore, is to arouse the
people in all the States to a full sense of
the imminent danger which threatens
them; to cause them to rally, in a common
straggle, at the polls, and to use every
constitutional instrumentality at their
command, for the rescue and preserva
tion of the priceless heritage left them by
their fathers.
, Whatever may be the result, we, at
least, will have the consolation of having
done our duty. If this be the “evil”
that is “to live after us,” may our mem
ory be weighed down with it for all time
to come. A. H. S
dent should be followed by the arrest of
well known Southern men. This course
seems to have been rendered imperative
by the result of the Texas election.
Grant is actually stunned by the announce
ment of thirty thousand Democratic ma
jority in the State, and despairing of car
rying the Southern States by fair means,
lias resolved to carry them by any means;
and so, in a few days, the New Rebel
lion—this time of the Federal Govern
ment against the South, will be begun.
It was well known at the White House,
when the recent proclamation was issued,
that five days was insufficient to spread it
over the counties in South Carolina,
therein named, and there is 'hardly any
doubt that martial law will be declared in
that section before one-third of the citi
zens ever hear of the warning. This is
sufficient to stamp the whole thing as a
base political trick to get control of the
Southern States by intimidation.
Tne New York Sun of yesterday, has
long editorial condemning the action of
President Grant in this matter. The
Sun says : “The proclamation of General
Grant declaring the authorities of South
Carolina unable to protect the people in
their rights, is probably only a prelimi
nary to the act of placing the State un
der martial law, with a series of whole
sale arrests under the provisions of the
Ku-Klux bill. The weight of evidence
is entirely against the supposition that
there is any necessity for this action, ex
cept for the success of his own selfish
ends. General Grant wishes it to be be
lieved that South Carolina is in a state of
anarchy, aud by availing himself of the
despotic power which has been conferred
upon him by unconstitutional legislation,
bo expects to mislead the public in regard
to the situation in South Carolina; and
what is now doing in the South, may yet
be done in the North, under the provis
ions of the same law which authorizes
President Grant to proclaim himself an
absolute Dictator, at his own discretion,
whenever and wheresoever, within the
United States, he may see fit to do so,
the Court erred in rejecting the evidence, relation to the plaintiff’s having colluded
It was admissible. If upon the dissolution with Porter, to take possession of the
of a law firm, one of two partners gets a farm, and excluding the defendant from
note for his part of a fee, evidenco of his ' participation in the management of it,
agreement to be represented on the trial I inasmuch as there is no evidence* of such
of the case, is competent in a suit on the collusion to authorizo the charge. Not
note, and ought to be admitted to the being satisfied with tbe verdict, we re
jury under tbe charge of the Court of verse the judgment for error in the fore-
the law applicable to the case. I going charge, and order a new trial.
Judgment reversed. j Judgment reversed.
Warren Akin, for plaintiff; General j Underwood and Rowell, Print-up and
Wofford, contra. | Fouche for plaintiff; Wright andl Feath.-
erstone, Smith and Branham, contra.
Grant and tlie Ku Klux.
In The Sun of yesterday, was publish
ed some statements made by a Washing
ton letter-writer, which served to throw
some light upon the motive by which the
Administration is governed in the in
auguration of the new policy toward the
South. Below, is given a special dis
patch from Washington, to the Savannah
News of Monday, in which reference is
had to the same matter. Upon the whole,
it seems that a deep and wicked plot is
SUPREME COURT DECISIONS.
Atlanta, October 17, 1871.
Alexis Bragg et al vs. W. H. Tibbs—Re
moval of cases to Federal Court.
LOCHRANE, C. J.
Where, upon tbe call of a case upon tbe
docket, the counsel for the plaintiff stated,
to the Court, that he had a motion pre
pared to transfer the case to the United
States Court; and the Court refused to
hear the motion, giving precedence to a
motion to dismiss the 'case upon the
ground of non-payment of taxes, under
the Act of 1870:
Held, that this was error.
W. K. Moore, for plaintiff in error.
McCutchen & Shumate, D. A. Walker,
contra.
A. B. Irick vs. Wm. Wise—Complaint.
LOCHRANE, C. J.
Where Wise was the tenant of Irick,
under an unexpired lease, and Irick wrote
him about letting the land, stating in his
letter that he would give him five per
cent: to get him to sell it, and Wise did
act equivalent to an acceptance of the
proposition, by showing the land; giving
notice that it was for sale, and Crockett,
with whom Wise had talked about the
land, went to Virginia, where Irick, the
owner of the land, lived, and bpught the
land, and Wise made him pay §500 for
surrendering possession of the land, and
demanded five per cent, as commission
on the sale; and npon the trial of this
cause the Court rejected evidence of the
payment of the 6500: .
Held, that this was error. If Wise
claimed commission upon the sale of the
land, such sale contemplated a delivery
of the possession of the land. If the
jury found, from the evidence, that Wise
did honestly aid in the sale, and was en
titled to commission, his evidence was
admissible to show the payment of $500,
which should be deducted from the com
missions. On the other hand, the pre
sumption is that Irick sold for less than
the land was \forih if Wise was to be
bought out of possession, and Wise would
not be entitled to both compensations.
Judgment reversed.
Warren Akin, for plaintiff; Wm. T.
Wofford, contra.
Wm. Worthy, vs. the State—Adultery-
Continuance.
LOCHRANE, C. J.
Upon trial of indictment for adultery, it
is error in the Court to refuse a contin
uanee for the absence of two witnesses
whowereduly suppaenaed, and were with
in the jurisdiction of the Court, by whom
the prisoner expected to prove his inno
cence, and the fact of one’s being the
woman accused, does not efiange the
rule.
The fact that the Judge at the first of the
term, announced his readiness to send
for witnesses who were not present, does
not necessarily deprive the prisoner, who
has not availed himself of the Judge’]
offer, of the right to a continuance on
the ground of the absence of witnesses.
Where the evidence in a ease is all
presumption, and the jury find a verdict
of guilty, this Court will grant anew
trial on the ground of absent witnesses,
with greater liberality, than in a case
where the guilt of the accused was mani
fest from the proof.
Judgment reversed.
Johnson & Me Camy, J. A. Glenn, for
plaintiff. C. E. Broyles, Solicitor Gen’l,
per D. A. Walker, contra.
Benj. G. _ Pool, vs. Margaret Curry,
Executrix—Attorney's fee note.
LOCHRANE, C. J.
Where A employed a law firm to defend
a case for a fee of $500, and had paid one
of the partners $250, and upon the clos
ing up of the business of the firm, the
other partner being about to remove to
Texas, obtained a note for the balance
dne, and traded it, having agreed at the
time of the taking of the note to be re
presented npon the trial; and npon the
trial one of the partners appeared and
defended the case, and the other, who
had removed to Texas, was not at the
Court, and was not represented, and
npon the trial of the case, brought to re
cover the amount of the note, the Judge
rlued out the evidence of this obligation
and agreement, and also the fact
that the maker' had employed
other counsel, and charged the jury
in effect that one of the law firm appear
ing in the cause in which the firm had
been employed generally, consummated
tbe obligation of the contract:
Held, That under the facts of this case,
Francis Wright vs. J. D. W. McDonald—
Injunction.
LOCHRANE, C. J.
Where a note, given for the purchase
money of lauds, was traded after due,
and suit was instituted by the transfer-
ree upon each note, and went into judg
ment in 1867; and, in 1869, the vendor
of the land died, and his widow set np
her claim for dower in the lands, and her
dower was allowed, on the ground that
the lands came by inheritance through
her, and she had never relinquished her
right of dower; and the vendee^filed his
bill in equity, praying an injunction,
which injunction was granted by the
Court:
Held, That the transferree of the note,
after due, took it with the existing equi
ties between the original parties, and the
claim for dower-in the lands was not such
an equity as the defendant was bound
to plead in a suit brought in 1867, as the
right of dower did not ripen until after
the death of the, Tendor, in 1869, and
this Court will not interfere with the
discretion of the Court below in granting
an injunction to restrain the proceeding
of the judgment at law, until a hearing,
under the facts in this case.
Judgment affirmed.
A. Farnsworth, W. W. Giddens, John
son & McCamy, for plaintiff; D. A.
Walker, contra.
Benj. F. Pace vs. B. M. Wilkinson—Re
lief act of 1870.
McKAY, J.
Where there was a suit brought on a
bond for titles, alleging a breach since
first June, 1865:
Held, That no affidavit of the payment
of taxes, under the act of 1870, is re
quired.
Judgment reversed.
E. D. Graham, D. A. Walker, for plain
tiff; S. H. Tatum, contra.
W. W. West vs. John Sansom & Fred
Cox.—Relief act of 1870.
McKAY, J.
An affidavit, under the act of 1870,
that the plaintiff has paid all legal taxes,
since he was the owner ot the note, the
foundation of the suit is a substantial com
pliance with the act of 1870.
Judgment reversed.
Johnson & McHenry for plaintiff; W.
H. Dabney, J. A. Glenn, contra.
Wm. Solomon vs. Daniel Lowry.—Relief
act of 1870.
McKAY, J.
That portion of the act of 1870 which
allows the owner of lands subject to exe
cution to set off against the judgment the
losses he claims to have suffered from the
late war, is iu violation of article 1, sec
tion 10, paragraph 1, of the Constitution
of the United States, and is, therefore,
void.
Warren Akin for plaintiff; A. Johnson,
contra.
Eli Garrett vs. Wm. Adrian.—Ejectment.
McKAY, J.
Where A, being in possession of land
under a bond for title, on payment of
tlia purchase money, made by B, sells
the land to C, representing his title to be
perfect, and makes C a bond for title to
be made on payment of the price agreed
upon, C having no knowledge of the de
fect of A’s title, in good faith goes into
possession after his purchase, and pays
his money in full, and remains in pos
session seven years:
Held, That C had a good title against
B, the original vendor.
Judgment reversed.
Johnson & McCamy for plaintiff; D. A.
Walker, contra.
Wm. Worthy vs, Aaron Kinsman and
Jesse George.—Trover.
McKAY, J.
Where a defendant relies on his title
by prescription, he can not tack to his
own possession the possession of former
holders of the property, unless he shows
the character of that possession, as to
its good faith, &c., and that he holds
under them bona fide.
Possession by capture can only be set
up by parties belonging to regularly or
ganized bodies during the war, and we
think this is clearly a case of stealing, of
which the defendant should not be al
lowed to take advantage.
J. A. Glenn, S. P. Green for plaintiff;
McCutchen and Shumate contra.
Wm. Brown, vs. The State.—Larceny.
McKAY, J.
Hog stealing is not such au offence as
can be settled under 4609, of the revised
Code; and under a charge of larceny, the
property was described as one black pig,
with, a white list, and one white one with
a blue rump, both without ear-marks,
and the two, of the value of two dollars,
and the property of James Drake:
Held, That the description is suffi
cient.
J. C. Reid for plaintiff; H. T. Morton,
District Attorney, contra.
T. A. Walker, vs. A. M. Rixey.
WARNER, J.
This was an action on three promisso
ry notes for the sum of $16,498, for the
rent of a plantation, in the State of Ala
bama. Two of the notes were due the
25th of December, 1867, and the other
the 25th of December, 1868. The notes
were signed by defendant and Porter,
who rented the plantation as partners,
for three years. After working the
plantation one year, Rixey, the defend
ant, came to this State. One of the
main grounds of the defendant was that
the plaintiff had ejected the defendant
from the plantation after the first year,
and had satisfied the same in conjunc
tion with Porter, the other partner, for
the remaining two years. The evidence
is quite voluminous and conflict
ing. On the trial the jury found
for the plaintiff $500 only. A motion
was made for a new trial on several
grounds—one of which was, that the
Court erred on charging the jury, at the
request of defendant’s counsel, that, if
the evidence shows that plaintiff and
Porter have colluded together, and
hare taken possession of the farm, and
have excluded Rixey, the defendant,
from participation in its management,
then Rixey is discharged from liability
from, the time of such collusion, and
eviction, and the jury may consider how
the cotton raised on the’place was marked,
how the crop was made, who controlled
the crops, and who made advances in de
termining this question. The Court over
ruled the motion for a new trial, and the
plaintiff excepted. In our judgment,
E. G. Barney, Superintendent, and A. D.
Breed, Lessee Selma, Rome and
Dalton Railroad, vs. Ann Eliza Lacy—
. Demurrer.
WARNER, J.
This action was brought against the
Road in the county of Whitfield, to re
cover damages for the death of plaintiff’s
husband, alleged to have been killed by
the running of the engine and train of
cars on said Road, at Oxford, in the State
of Alabama. The defendant demurred
to plaintiff’s declaration on several
grounds, and especially on the ground
that this action cannot, by law, be
maintained against the Selma, Rome and
Dalton Railroad Company in the Superior
Court of Whitfield county, Ga., because
it appears from the plaintiff’s declaration
that the injury was inflicted in Alabama.
This ground of demurrer was overruled
and defendant excepted. There is no
allegation in plaintiff’s declaration as to
what is the law of Alabama in relation to
the alleged cause of action, and in the
absence of any such allegation the Courts
of this State will presume that the com
mon law applicable to the alleged cause
of action is of force in that State. By
the common law the plaintiff could not
have maintained her action against the
defendant for the death of her husband.
The right of plaintiff to recover dam
ages for the homicide is conferred by a
special statute of this State, Code 2920,
but tbe statute of this State has no ex
traterritorial operation, aud tbe Courts
of this State cannot administer it for the
purpose of redressing injuries in the ter
ritory of Alabama. If it had been affirm
atively shown that the law of the foreign
jurisdiction in which the injury was done,
was similar to that of our own as to the
alleged cause of action, then it would
have presented a different question. Al
though the Courts of this State will pre
sume that the principles of the common
law prevail, and are in force in the other
States for the redress of wrongs and in
juries done there, as recognized by it,
still no such presumption can obtain in
regard to tbe positive statute laws of this
State, when the same are in conflict with
the common law. If it had been alleged
in the declaration that the law of Ala
bama gave to plaintiff a right of action
to recover damages there for the injury,
and had shown what that law was, then
the Courts of this State might, in the
spirit of comity, have enforced that law
here. It is much, therefore, as it does
not affirmatively appear from the plain
tiff’s declaration, that in Alabama, where
tbe injury was done, that the laws of that
State are similar to our own in respect to
the injury for which redress ‘is sought
here under the provisions of our statute,
so that the common law is not of force
in that State in respect to the injury
complained of, the Court below erred in
overruling the demurrer.
Judgment reversed.
Printup & Fouche for plaintiff; Joseph
& J. A. Glenn, contra.
Warren Akin, exec’r, vs. J. O. McDaniel,
President Allatoona Lon Works. Re
lief act of 1870.
WARNER, J.
This was a claim case in favor of Akin,
executor of Clayton, plaintiff in fi fa.,
against McDaniel and his tract of land,
defendants, and McDaniel, claimant.—
The court, on motion, dismissed plain
tiff’s levy, on the ground that the taxes
had not been paid on the judgment of
the debts, as required by the act of 1870,
on the following admitted statement of
facts: The plaintiff’s testator, Clayton,
died in November, 1864; that Akin, as
bis sole executor, was qualified as such
on the first Monday in November, 1865,
and as such executor had paid all legal
taxes due on said executions since he was
qualified as such executor, but that said
Akin had not sworn, and could not swear,
tha.t the legal taxes had been paid on the
debts due on said execution prior to his
qualification as such executor, and this is
the only question. The court held aud
decided that the act of 1870 requiring the
the plaintiff, as executor, to swear that
all legal taxes chargeable by law on tbe
debts on which the judgments and exe
cutions were founded, had been paid
from the time of the making or implying
of the same, whereupon the plaintiff ex
cepted.
The testator died prior to the passage
of the act of 1870, and his executor could
not swear as to what he had done iu re
lation to the payment of taxes on these
debts in his lifetime. The testator
could not swear, for the very obvious
reason that he was dead. The presump
tion, however, is, in absence of any evi
dence to the contrary, that the testator,
when in life, performed all his legal and
social duties, and therefore paid all the
legal taxes charged by law on these debts,
and in view of this state of facts, we
think the Courterred in dismissing the
levies of the plaintiff’s executions.
Judgment reversed.
John Doe, on the demise of Stevenson,
vs. Richard Roe, casual Ejector, and
Shelton and others, tenants in possession—
Ejectment.
WARNER, J.
This was an action of ejectment
brought by tbe plaintiff on the several
demises alleged in the declaration,
against the defendants to recover pos
session of a tract of land in Whitfield
County. The demise from Stevenson to
plaintiff was alleged to have been made
May 1st, 1864. The demise from Baker
to plaintiff, December 5, 1S69. The ac
tion commenced December 20, 1869.
The parties offered in evidence their re
spective title deeds to the land in dispute,
as well as other evidence in regard to
their claims to the land. After the testi
mony closed, the defendant’s counsel
made the point that the plaintiff’s cause
of action was barred by the act of 1869,
in relation to statute of limitations under
the evidence in the case. The Court
sustained this position, and held that
the plaintiff’s action was barred and dis
missed it, and plaintiff excepted.
The 7th section of J the act of 1869, de
clares that all actions for torts of any
character .whatever, when the torts or
wrong, was committed, or the right of ac
tion accrued, or the injury was done,
whether to the persons or property of
any person or corporation prior to June
1st, 1865, by any person then, or now in
the] State, or any inhabitant of this State,
which is nos barred, shall be brought and
tho passage of this act, or the right of
action, as well as the right to sue, shall be
forever barred and foreclosed. This
section of the act applies only to such
torts as were committed prior to J UUe
3, 1865, and not to torts committed since
that date. If the defendant was in pos
session before that date, the plaintiff t 0
recover for that wrong or injury,
have sued within three mouths from the
passage of the act, but if the defendant
has been in possession of tbe lands, since
that date, as the evidence shows that he
was, then for the wrong and injury done
since that date, the plaintiff was not
bound to sue within three months. Be
sides one of the demises in the declara
tion to plaintiff, is alleged to have been
made on December 5, 1869, and the de
fendant was in possession of the land
In our judgment, the Court should have
allowed the jury to have passed upon the
evidence under a charge as to the law
applicable thereto, and it was error to
dismiss the plaintiff’s action.
Judgment reversed.
Julius P. Clements etal. vs. J. E. Logan
Injunction.
WARNER, J.
This was a bill filed, praying an in
junction to restrain the defendant from
obstructing a road on hh own land. Alter
hearing the argument, on a motion to
show cause why the injunction should
not be granted, the Court refused to
grant the same, and defendant excepted.
It appears that the obstructions to the
road had been complained of as a nui
sance, and a trial had before the Jus
tices of the Peace, and a jury summoned
for that purpose, aud the verdict render
ed by them, that the obstruction was a
nuisance, which was abated by the Sheriff;
that the defendant had obtained a cer
tiorari of the proceedings to the Superior
Court, and that the defendant had threat
ened to renew the obstructions to the
road. The complainants do not show
that they had a legal right to use this
road over defendant’s land, as a pri
vate way, either by prescription or
otherwise, nor does the evidence show
that the Road had ever been established
by the proper authorities as a public
road, or that it had ever been worked or
recognized by the public authorities of
the county, as a public road, so as to
give complainants a prescriptive right to
use it as such over the defendant’s land.
In view of tbe facts of this case, we will
not interfere with the discretion of the
Court below, in refusing to grant the in
junction prayed for.
Judgmentaffirmed.
McCutchen and Shumate for plaintiff;
J. and J. A. Glenn, contra.
Charles Abercrombie, vs. Nathaniel Bax
ter, et al.—Relief Act of 1870.
WARNER, J.
This was an affidavit of Illegality to an
Execution, on the ground that the de
fendant had elected to give up the land,
which was the consideration of the de
fendant, for wliich the execution was is
sued to collect, in full discharge of his
indebtedness to ‘.be plaintiff, under the
provisions of the 15th section of the act of
1870. The Court sustained the affidavit
of illegality, and ordered that the title to
the laud be vested in the plaintiff, and
the execution against the defendant be
entered satisfied; to' wliich ruling of
the Court the plaintiff excepted. This
case comes within the principles of the
decision of Gann vs. Henry. So much
of the 15th section of the above recited
act, as authorizes a defendant to give up
the property in his possession, for which
the contract was made, in full discharge
of his indebtedues, impairs the obliga
tion of plaintiff’s contract, and is uncon
stitutional and void.
Judgment reversed.
D. A. Walker for plaintiff; W. H.
Dabney contra.
East Tennessee and Georgia Railroad
Company vs. James Montgomery—
Contract.
LOCHRANE, C. J.
Where a letter was written to B., at
Rome, by the Agent of the East Tennes
see and Georgia Railroad Company, in
reference to inquiries made by B., in
which the Agent states that arrange
ments are perfected for sending cotton
through to New York, via East Tennes-
and Georgia, and connecting
lines, to Alexandria, by rail, and
thence by steamer without detention,
&c., “our rate on cotton from Dalton
to New York is $9 per bale. Hoping to
secure a liberal share of patronage from
Rome, I am, &c.” And this letter was
shown to Montgomery, who shipped his
cotton to Kingston, on the Western and
Atlantic Railroad, and by the way of
Dalton, over the East Tennessee and
Georgia Railroad through to New York,
and damages were incurred by delays on
the route, after it had passed over the
road of the defendant:
Held, That the letter, written to B,
by the Railroad Agent, when shown to
Montgomery, did not, without some no
tice to the railroad, by him, that he had
shipped his cotton from Kingston to
Dalton, to be shipped by them in the
terms of said letter, constitute in itself
an express contract so as to bind the
company for delay that occurred beyond
its terminus. The contract imposed by
the law, section 2058, was to deliver it
to the connecting road as in good order
and in due time. To require more, wo*dd
require an express contract, and the let
ter addressed to B, did not, upon being
read by Montgomery, constitute such an
express contract; and his act of sending
the cotton without notice to the Compa
ny, going over the entire route, and
transported by them as an intermediate
line, could not be regarded as embracing
the terms of an express contract, arising
out of the letter to B, as between such
consignor and the company, without no
tice to the letter. Where the Court, on
the trial of a case, gave in his charge to
the jury, principles of law contravening
the laws of the State, it was error and a
new trial should have been granted.
Judgment affirmed.
McK’y, J., concurring; Warner, J.,
dissenting.
D. A. Walker, M’Cutchen, & Shumate,
for plaintiff; Printnp & Fouche, W. H.
Dabney, contra.
Axstvessahy.—The H. I. Kimball House celebra.
ted its first anniversary last night, by an unusually
brilliant hop, which was attended by quite a num
ber of the elite of the city. Crittenden was on hand,
hearty, genial and happy, acting the host’royally and
receiving the compliments and congratulations of
his friends with a suavity common only to himself.
It was a pleasent evening and every one present was
merry a3 a married belle.
th e Court erred in charging the fury in 3 fS
Fair at Thomas'ViUc, Georgia.
The people of Thomas county will hold
a fair for five days, commencing the 31st
instant, and are making extensive prepa
rations for the same.
