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T EE ATLANTA WEEKLY SUN.
THE DAILY SUN.
^Wednesdaz Mousing November 1
More Developments.
Tho act granting State aid to the
Tlie Btutscratle Cuucu*
ot tlie House met last evening. After
electing Hon. Winder P. Johnson as
Chairman, it was moved to proceed with
the nomination of .candidates for Speaker
and Clerk. Owing to the absence of
Brunswick and Albany Railroad, author-; q{ the membf!rSj wbo we re expected
ized the Governor to indorse the first
mortgage bonds of the road to the ex
tent of $15,000 per mile, taking a first
lien upon the road and its equipments;
also, in addition to this, to issue to the
road the bonds of the State to the amount
of $8,000 per mile, and take as security
the bonds of the road to the extent of
$10,000 per mile. The indorsed bonds to
which tho road would bo entitled, if it
were fully completed, would be $3,300,-
000; and the amount of State bonds to
which it would be entitled if the road
were finished, would be $1,880,000.
The law requires the the Governor to
issue and indorse these bonds as fast as
every ten miles aro completed, and no
faster.
The road is completed only to Al
bany— and poorly finished at that—
so we learn. Yet, as we showed a few
days ago, the entire amount of bonds
to which the road would be entitled,
if tho road were finished, both of
indorsed bonds and State bonds, have all
been, by order of the , Governor, fully
prepared, registered, executed and sealed
with tho Great Seal of the State, and de
livered to him. This was fully set forth
in our columns a few days ago. We then
stated that we did not know whether
Bollock had delivered the bonds to Mr.
Kimball, or had used them unlawfully
himself or not; but our opinion was that
some unlawful use was intended,
and that the law had been violated in
having them issued and delivered to him
by his order. - V
We learn from. Dr. Angier, that he has
ascertained, officially, that the bonds are
not in the Executive office, and no oue
thero knows where they are. Judge
Cotting, the Secretary of State, has, by
order of Bullock, executed, sealed and
delivered to him all the bonds, and they
are not in the Governor’s office. Where
aro they? Has Bullock turned them
over to Mr. Kimball contrary to law ? If
so, have they been pawned or hypotheca
ted and money drawn on them, or have
they been sold ? These are important
questions upon which we can. only have
an opinion at present.
But, in addition to the law requiring
the bonds of the State to the extent of
$S,000 per mile, to be delivered to the
road only as fast as every ten miles are
built, it also requires bonds of the road
to the amount of $10,000 per mile, or
$2,350,000 in the aggregate, to be depos
ited with tho State Treasurer, before a
single State bond is delivered to the road.
Only $050,000 of these bonds have been
deposited with the Treasurer.
Bullock has absconded—has fled from
before the face of an outraged people—
to escape the just punishment of liis
crimes, and has, in some way, disposed
of, issued or misused—so it seems to us—
over S2,000,000 of bonds more than the
road is entitled to, as far os it is com
pleted.
Now, if it be true that he has, in any
way, issued, used or delivered those
bonds unlawfully, lie is liable to be sent
lo tho penitentiary. This he knows, and
hence his unmanly flight. The 4355th
Section of the Code provides as follows:
“ Any officer, servant, or other person employed
in any public department or station or office of Gov
ernment, of this State, or any county, town or city
of this State * * * who shall ombezzlc,
Bteal, socrote, fraudulently take and carry away, any
money, gold or sUver, bullion, note or notes, bank
bill or bills, bill or bills of exchange, warrant or
warrants, bond or bonds, deed or deeds, draft or
drafts, check or chocks, security, or securities, for
tho payment of money or delivery of goods, or other
things, * * * scaled instruments, or any
certificate or othor public security for tho State,
* * * or any day-book, or other book
of accounts, or any agreement or contract, whatever;
such person so offending shall, on conviction, be
punished by imprisonment and labor in the peni
tentiary for any timo not less than two years, nor
longer than seven years.”
This language is plain. Bullock un
derstood it and has run away from it—at
least, this is the only construction which
wo can put upon his conduct.
to arrive by night trains, it was agreed
to adjourn to meet this morning at 9
o’clock in the Representative Hall, at
which time every Democrat belonging
to the House is requested to be present.
Hon. B. Conley.
It is stated that Judge Conley consi
ders himself Governor for the remainder
of Bullock’s unexpired term. That is a
heavy calculation.
Bullock’s Object.
No doubt, Governor Bullock’s pro
gramme is to induce General Grant and
the Radical Faction, now in power, to
suspend the writ of habeas corpus in
Georgia and send Aim.back here as Mili
tary Governor, /or the purpose of slopping
all investigation into lis official ads l He
desires no investigation into what he has
done—so we suppose.
Dr. N. L. Angler.
Our State Treasurer, under the .solemn
conviction that Gov. Bullock was making
illegal use of the money and bonds of the
State, has been watchful and vigilant,
and steadily pressed his investigations
and inquiries and kept the public inform
ed of the facts and the law. and in this
way has saved Georgia millions of dollars,
and also saved her from the utter bank
ruptcy which has befallen other Southern
States where the Radicals have been in
power. He has done ranch for Georgia
and deserves the thanks of her people.
Democratic Senate Caucus.
At a meeting of Democratic Senators
last night, the following nominations
were made for officers of that body:
For permanentPresident—L. N. Tram
mell.
For President pro tern—B. B. Hinton.
For Secretary of the Senate—T. W.
J. Hill.
For Door Keeper—G. Whit Anderson.
For Messenger—A. J. Cameron.
These nominations were made unani
mously.
The Nominations.
The candidates for officers of the Sen
ate, who were put forward at the Demo
cratic caucus last night, will, of course,
receive the unanimous support of the
party, and be elected to-day. They are
good men, and will, no doubt, give full
satisfaction in discharging their duties.
Mr. Trammell we have personally known
for years, and we regard him as well
fitted for the position of presiding officer
in the Senate. Mr. Hill is worthy, and
well qualified, and so are Capt. Ander
son and Mr. Cameron.
Personal.
Wcdcmcycr’s Band.
This famous regimental baud, consist
ing of 2 i pieces, fomerly stationed in this
city when Gen. Meade was commanding
the Department, but now at the Depart
ment Head Quarters of Gen. S. W.
Crawford, commanding at Huntsville,
passed through this city yesterday on its
return from Macon, where it had gone to
discourse sweet music at the State Fair,
delighting the city and all the visitors.
It is ono of the finest and most celebra
ted bauds in the United States.
The Candidates.
“Oh! that night or Blucher would
come P* was the prayer of a celebrated
V fighter;” and whenever we think of the
trouble he wai in we fed the agony of the
situation. Now, a tender-hearted fellow
like this local, is troubled nigh unto
death at the sight of the numerous pat
riotic gentlemen who are proffering their
services to fill the positions within the
gift of the Legislature. They are all
oh-ing for the nominations and elections
to come off—hopeful, anxious, despon
dent, desperate! Reader, do you sym
pathize with this self-sacrificing class ?
It is no uWflfor us to proceed—we are
a911$ of them, and know how it is ourself.
7 ... ► • <
The Last Prisoner of War.
ta ^ 6 ^ earn that Capt. John C. Braine,
Life of the C.'S. Navy ? wjll deliver a leer
taro Ihisj yee&j.in thla ; cij;y, flicain-
publisiied history"of the Navy* of ’the
Confederate States. He was confined,
as a prisoner of war, for two and-a-lialf
years after the war.
Gen’l. Toombs is in the city.
Gen. P. M. B. Young reached the city
yesterday.
Gen. S. W. Crawford was in the city
yesterday. He left last evening for the
Northern part of South Carolina, on a
visit to the home of his ancestors in that
State.
Col. John H. Christy of the Athens
Watchman, arrived yesterday.
E. Steadman of Newton county, is in
the city to attend the Legislature.
Maj. J. T. Bums, Senator, is at the
Kimball House.
The following members of the General
Assembly arrived yesterday, and the day
before: R. E. Lester, Senator 1st Dis
trict, Savannah; James W. Jones, Rep
resentative from Hart, Hartwell; W. S.
Erwin, Senator 31st District, Clarkeville;
T. J. Barksdale, Representative from
Warren, Warrenton; B. B. Hinton, Sena
tor 24th District, Buena Vista; E. P.
Edwards, Representative from Elbert,
Elberton; Columbus Heard, Senator J 9th
District; JohnC. Nicholls, Senator 30th
District, Blackshear.
Hon. Julian Hart ridge, one of the
veteran lawyers of South Georgia, is in
the city.
Judge Linton Stephens is at the Kim
ball House.
We were unable to notice yesterday
morning all the prominent gentlemen
who are arriving to take their places in
the General Assembly; and will possibly
be unable to complete the list to-day, as
we have not had the pleasure of meeting
all, and have no doubt we shall leave
some good and able men out.
the will is good, and if the deed fail, the
fault is not intentional.
Hon. B. B. Hinton', of the 24th, one
of the working Democrats of last session,
and one of the most watchful, is on hand,
ready for any duty that may be required.
Though Trammell was just a little the
stronger, in caucus, for President of the
Senate, Hinton was selected as theyn-o
tempore President, and will be a valuable
aid to the nominee. It was a nice point
to decide between these two gentlemen,
and we shall never be able to fully un
derstand how the Senators managed to
do it
Hon. R. E. Lester comes with the re
sponsibilities of the First District resting
upon his shoulders. But he will acquit
himself like a good Democrat and a good
^Senator. He is every inch a .man.
. Hon. E. Steadman, one of • the most
practical and useful men in the State,
will actively and honorably represent the
Twenty-seventh District.
Hon. W. T. Jordan is on hand. The
Twenty-fifth District will not suffer
through him. He is as genial as a May-
blossom, knows bow to make friends and
knows bow to keep them, always votes
right, and can play a better tune on the
fiddle than any man in the Senate.
Hon. CL J. Welbom, of the Fortieth,
is equipped for the fray and ready to fight
it out ou the Democratic line. He is a
good worker and a sound thinker, and is
always at his post He wields a decided
nfluence in or oat of the Assembly.
Hon. John T. Barns comes from the
mountains, and is tall and straight as the
pines. His Democracy is beyond a sus
picion. He never was known to flinch
when the trial came. He has still the
old metal in him.
Fitzpatrick comes again from Bibb
with Lis Blarney, and will, we presume,
as heretofore, be one of the biggest
Radicals in the bunch. He is our
“honest Fitz” nevertheless, and “Mis-
ther Spaker,” pronounced in his rich
brogue, is as musical as an Irish jig.
Butts sends one of her sturdy old
farmers to do her representing, in the
person of Hon. T. F. Hammond. The
honor of the county is safe in his hands,
for he knows nothing but integrity and
hard work. He can be accounted on
when the hard work commences.
Chatham sends Hon, John J. Kelly,
a fine ould Irish gentleman ” and the
worst Democrat in America* He is big,
but Democratic in proportion, and true
as steel to his principles and his friends.
Hon. J. H. Me Wkorter is here to do
the Radicalism for the 30th District. He
is a fine looking man and works well—on
the wrong side.
Morgan Rawls comes to cast a few
more votes for the Democracy and the
honor of old Effiingham.
From Fayette, we have met Wm. What
ley, who does not seem to be very happy,
as Mr. Harp proposes to protest his seat.
There ought be no foolishness'about elec
tions; people ought to vote quick and
often, and pile up big majorities.
Spalding also sends us a couple of
members, and strange as it may seem,
they are both Johnsons—Dave and Dan.
Dan come in ahead, but Dave proposes
to show fraud, and contests. We would
be delighted to see Dave seated, as he is
the “powerfulist” Democrat in the coun
ty—no discount at all—notwithstanding
he was the loudest-mouth Union man in
war times in all this country. Dan is as
ihorough a Rad. as Georgia affords—
don’t beat about the bush, but goes the
whole figure.
Pike—gallant, glorious old Pike—sends
ns a Bakei’, whose front names are John
H. All that we desire to know of a man
is, that he comes from Pike, to put him
down O. K., as the people of that county
come as near appreciating honesty and
virtue in man as any people in this wide
world. , *
From Bryan, wb met 'bur old life-long
friend, C. H. Baker; and notwithstand
ing he comes fresh from the jungles of
that oppressed section of our State, we
know he has the true grit, and plenty of
it. He will represent the old and hon
ored county of Bryan with credit to him
self and honor to the county.
Randolph sends R. F. Crittenden, i
genial, intelligent gentleman, with whom
it is a pleasure to talk. We shall watch
the career of Mr. Crittenden with inter
est.
TELEGRAMS
Thohasvelle,' October 31.—The an
nual Fair of the South Georgia and Me
chanical Association, opened here to-day,
with a large attendance and a brilliant
prospect. Thousands of visitors arp ex
pected during the week.
Oswego, October 31.—An old tannery
boiler exploded to-day, from over pres
sure. One was killed and several were
hurt.
Philadelphia, October 31.-—'The En
terprise Insurance Company has sus
pended.
The report of the Board of Health
shows 456 small pox cases for the week
and 1647 for the year. Deaths for the
week, 85; for the year, 284.
Memphis, October 31.—The ) crew of
steamer Mary Boyd mutinied because the
Mate shot a negro named Tilly. The
arrival of tl e police saved the Mate’s
life. Several of the mutineers were ar
rested; but the ring-leaders escaped.
Cincinnati, October 31.—A contract
lias just been concluded whereby the
Chesapeake and Ohio Railroad secures a
controling interest iu tlie Louisville, Cin
cinnati and Lexington Railroad.
St. Lotus, October 31.—Two boilers,
in quick succession, exploded in the Yul-
can Iron Works. One person fatally and
eight seriously hurt.
Salt Lake, October 31.—Daniel H.
Wells, Mayor of Salt Lake, charged with
However i murder, has been released on $50,000
bail.
Cases for divorce and alimony are
p'ending. In one case the ninth' wife is
the plaintiff
CpNCOKD, Oct. 31.—Eighteen hundred
sheep and six horses, from Canada, were
seized to-day for under-valuation.
Charleston, Oct. 31.—Two deaths
from yellow fever have been reported in
the last twenty-four hours.
New Orleans, Oct. 31.—The Frank
fort arrived to-day, from Bremen, with
six hundred emigrants on board.
Six hundred feet of the levee, from
Montague to Lonisa street, caved to-day.
Washington, October 31.—W. F.
Forbes, Pension Agent at Philadelphia,
has been suspended, charged with defal
cation of $25,000.
A full cabinet met to-day.
General Sherman will leave next
week for a six months’ European visit.
There are assurances that Capt. J. G.
Stokes, of Alabama, will be appointed
Consul to Rio Janeiro.
The Contract Bureau, of the Post.
Office Department, was engaged to-day
in considering bids to fill previous con
tracts that were not complied with
These routes include as follows: West
Virginia, 3; Virginia, 11; North Carolina;
2; Georgia, 4; Florida, 2; Alabama, -78
Mississippi, 2; Arkansas, 50; Louisiana,
12; and Texas, 46.
There are good assurances tbat no
change will be made in the Savannah
Custom House, notwithstanding the
efforts made to procure Collector Robb’s
removal.
The Ku-klux arrests were considered
in Cabinet to-day, and applications for
bail were referred to the Attorney Gen
eral, he having exclusive control.
The correspondence between the gov
ernment and government officers in Utah
indicate a determination to crush out
polygamy.
Gortschatoff had a long interview with
Emperor William yesterday, and subse
quently one with Bismarck. Subject un
known.
Thiers refuses to modify his ultimatum
to England regarding the commercial
treaty.
The English Cabinet has had five
councils during last week. Their foreign
policy was the principal subject of discus
sion.
The English army is being rapidly re
organized. Regiments are rapidly
brought to the war standard and an im
mense amount of war material is being
accumulated.
It has transpired that there was much
straw-bidding for the mail contracts open
ed to-day, and as the Attorney General
compels the Postmaster General to award
the contracts to the lowest bidders, it is
probable that most of the contracts, made
last July to end December 31, or until
otherwise ordered, will continue until
the next annual letting.
The new geographical boundaries and
change of commanders in the Military
Departments, which are pending, cause
excitement in military circles. It is said
that Sheridan will ba assigned to the
Department of the South.
SUPREME COURT DECISIONS.
October 31, 1871.
Henry F. Russell, Mayor, &c., vs. C. V.
Walker et al.. and Wm. G. Jones and
Michael O. Dowd vs. H. F. Russell,
Mayor, &c., for use of Wm. Glenden-
ning, administrator. Suit on bond—
Discharge of principal.
LOCHRANE, C. J.
C. B. Walker was elected auctioneer of
the city of Augusta, and executed his
bond as required by law. During his
term as such auctioneer, he sold certain
propety entrusted to him, and failed to
pay to the parties the proceeds thereof.
Walker and his sureties on the bond were
sued, and the main question raised by
the pleadings, and which is embraced in
the writs of error is, that Walker pleaded
his discharge in bankruptcy, which the
court allowed, anp the sureties relied on
the discharge of their principal as a dis
charge of the sureties, which the court
disallowed. We hold that the court
erred in holding that. Walker was dis
charged under the facts of this case.—
The 33d section of the bankrupt act of
March 2, 1867, provides that no debt that
has accrued by the fraud or embezzle
ment of the bankrupt, or the defalcation
of a public officer, or of any one while
acting in a fiduciary capacity, shall be
discharged under this act. Waiving the
question as to whether or not Walker was
a public officer, under the act of Decem
ber 24, we are clearly of opinion that the
debt sued on accrued while Walker was
acting in a fiduciary capacity.
Held again: The sureties on the bond
were liable under the facts of the case.—
We therefore reverse the judgment of the
court in the former, and affirm it in the
latter, case.
H. W. Hilliard for plaintiff; J. P. Carr
contra in the former, and J. P. Carr for
plaintiff, and Hilliard & King contra, in
the latter case. f
Jno. S. Byne vs. Ezekiel Adtaway—Title
to Confederate States property.
LOCHRANE, C. J.
Where it appeared from the record
that A brought an account of trover to
recover a wagon which belonged to the
Confederate States at the time of the sur
render of Gen. Johnston, and subse
quently to such surrender was given to A
who had worked for the Confederate
States authorities, by the Confederate
States quartermaster iu payment of A’s
services; and after such giving to A, he
took it from the depot in Warrenton,
where it was, and ran it off into a swamp,
where B’s negroes found it and B bought
it home and had it repaired, and after
wards learning that A claimed the wagon,
B reported it to the United States au
thorities, who gave B the possession and
use thereof, and on a trial of the action
brought by A against B to recover the
wagOD, the Court rejected this evidence
and charged the jury that the receipt of
the wagon by A from the Confederate
States quartermaster iu settlement of A’s
wages, was a voted payment and afforded I
a complete title, although the same was (
made after such surrender, and refused
to charge, as requested by B’s counsel, as
to the effect.of the surrender; as to the
principal of seizure, and the jury found
for the plaintiff, and a motion was made
for a f new trial on several grounds, which
were overruled:
Held, That the Court below erred in
his view of the law of this case. The de
fendant had a right to the evidence re
jected, for the written permission of the
authorities of the United States touching
the property capture, or surrendered, to-
witjby the Confederate States authorities,
was! admissable and proper evidence for
the consideration of the jury. The terri
tory over which Gen. Johnston had com
mand, and which was covered by the sur
render, being a part of the public
history of the country, it is the duty
of the courts to take cognizance
of it- without further proof as
to the locus of this transaction. Be
ing in the territory so embraced by .the
surrender, all the property controlled by
such military organization commanded
by G-eheral Johnston, was surrendered
by him, and the Confederate States Quar
termaster had no power to transfer it,
and could confer no title by any act of
his. The surrender conveyed to the
United States authorities the title or right
to the possession of suck property, and
their disposition of it-, was competent by
such military orders as >tbat government
may have directed, and was admissible
in evidence to show the fact, and was
conclusive upon any one claiming, under
the Confederate States authority, where
such order had been procured without
fraud,' and the Court erred in ruling out
such evidence.
Judgment reversed.
J. J. Jones, A. M. Rogers, for plaintiff;
S. A. Corker, contra.
M. W. Spearman, Administrator, vs. L.
ML Wilson, et aL, Executors—Arbi
trators. [• •. ti) lit \ • d
LOCHRANE, C. J.
property of his own, pending the arbi
tration :
Held, again, under our law, as Judge
has a right to carry a jury into a differ
ent county from that in which they are
empaneled, and any threat to do so in
case they d ; d not find a verdict presently,
was in effect to prevent the jury from
that free and voluntary consideration of
tbecause required bylaw:
Held, again, whether a contract was
entered into by Whitfield with Spearman,
to derive certaiu property by will, is a
fact for the jury to determine, and if the
contract existed, equity had jurisdiction
to decree damages for the \breach, al
though it was impossible to decree a spec
ific performance.
If the jury find a contract and a breach
thereof, in the estimation of dam
ages, it is proper to consider any
advances made during the lifetime
of the testate, distinguishing between
voluntary gifts not referential to the
contract and advancements in pursuance
of it, and held again, that the latter con
dition of the parties arising out of the
losses to the estate of Whitfield, is a
proper matter to be considered by the
jury in case they find a contract had been
entered into, and such breach as en
titled Spearman to damages under the
law.
Judgment reversed.
J. Wingfield, J. T. Bondoin, Peeples
for plaintiff, and Joshua Hill and A.
Reese, contra.
City Council of Augusta, vs. M. E.
Swinney—Vested Rights.
McKAY, J.
Where a public office is created by the
authorities of a municipal coloration.
Held that the incumbent of the office
does not have such an interest in the
salary, as that the corporation could not
at its discretion abolish the office, and by
so doing, deprive him of the right to
tender his services and demand his salary
for the full time for which he was
selected.
Judgment reversed.
A. R. Wright for plaintiff, H. Clay
Foster, contra.
J. M. Meyer, Trustee, andjSavannah Mil
ler, vs. B. B. Miller, Jr., et al—Equitv.
McKAY, J. J
The rule that the judgment of a court
of competent jurisdiction, is conclusive
between the parties as to tho matter in
issue, does not apply to a judgment
against a trustee as such, if the object of
the suit be to charge the trust property
with a debt for which the trustee is only
personally liable, unless it appear that
the cesfcue que trust is sui juris and a
party to the suit, or consents to the judg
ment, and equity will interfere to enjoin
such judgment, if it appear that in fact,
the trust estate was not liable for the
debt sued on.
Judgment reversed.
H. Clay Foster for plaintiff, Jas. P.
Carr, contra.
James S. Pool, vs. S. S. Purdue—Attach
ment.
McKAY, J.
A commissioned Notary Public as ex-
officio Justice of the Peace under the con
stitution of 1868, may issue an attach
ment as another J. P. may, under the
provisions of the code. One holding a
commission from the Governor as N. P.,
and acting as such, is de facto an officer,
and his official act cannot be attacked
collaterally, on the ground that his ap
pointment was not authorized by law, or
obligations to the form of an affidavit or
attachment, are waived by the appear
ance of defendant and pleading to the
merits of a written notice to defendant
that an attachment is pending, stating
the Court to which it is returnable and
the term thereof, and stating the amount
ascribing and the property levied on, is
a sufficient compliance with Section 3233
of the Code, to authorize proceedings as
in an ordinary suit, especially when the
defendant appears and pleads to the
merits.
Where objections were filed to certain
interrogatories, on the ground that they
were leading and the party on the trial
urged the objections, and the Judge
stated that if the objections were sus
tained he would continue the case, and
the party ceased to urge them.
Held, that this Court will not for that
reason grant a ‘ new trial. In this
State, one party can sue another at law
if he can, by proof, so present his case
that the jury can ascertain the amount
of the indebtedness.
Upon the whole ease, we find no error
in refusing to grant a new trial. Judg
ment affirmed.
A. D. Picquet and A. R. Wright, for
plaintiff,, and H. Clay Foster and J. C. C.
Black, contra.
Mary A. Inman, Administratrix, and Al
fred Inman, Administrator, vs. D. J.
Jones—Illegality.
WARNER, J.
This was an affidavit of illegality to a
judgment rendered against the defendant
in November, 1866, on the ground that
note on which the judgment was founded
was a debt, the consideration of which
was for .the purchase of slaves. The
plaintiffs made a motion to dismiss the
affidavit of illegality, on the ground that
the defendant had had his day in Court,
and was now estopped from going behind
the judgment and setting up this defence
by affidavit of illegality. The Court
overruled the motion and the defendants
excepted. This case is within the
principles decided by this Court during
the present term, in the case of Miller
vs. Albritton. The defendant should
have pleaded and proved the considera
tion of the debt on the trial of the case
when the judgment was rendered.
Judgment below reversed.
John T. Shewmake for- plaintiff, and
A. R. Wright contra.
J esse A. Leaptrot vs. Eliza A. Roberson,
admin’x. Trover.
WARNER, J.'
Action brought to redeem the value of
21 bales of cotton, alleged to have been
converted by the plaintiff in error to his
own use. The jury found a verdict for
the plaintiff for the proven value of the
cotton. Defendant made a motion for a
new trial, on several grounds, which was
overruled, and he excepted. The de
fendant was offered as a witness to rebut
and explain declarations made to certain
witnesses, who were examined on the
trial in regard to the loss of the cotton,
bat not as to any of the facts touching
the contract for the sale of the cotton
made between himself and the intestate.
The rejection of the defendant as witness
by the court to prove the facts for which
he was offered, is assigned as error.
This was a suit by the administratrix
to recover the value of cotton on a con
tract made by her intestate with the de
fendant, and it was under that contract
s tlint she derived her title to the cotton.
Held, that A was not a competent ar- .Where an executor or administrator is a
bitrator to lender an award where tue [party in any suit on a contract of his tes-
property in controversy had become the tate or intestate, the other party shall not
be admitted to testify in his own favor
(Code sec. 3798.) The defendant w£
offered as a witness to testify in kia
favor in a suit ia which the the plaintiff
as administratrix, was seeking to recover
the value of cotton on a contract
-nth her intestate, and the statute ex
cludes him in general terms in all sudi
cases from being a witness in hi3 01rn
favor, for any purpose. If the defend,
ant could be admitted to testify i u
own favor for the purpose claimed
why not be allowed to testify ’
his own favor for any other
in
poses and thus practically repeal*the
statute ? Where shall this Court stop in
admitting the defendant to testify in hi s
own favor in such cases? The obvious
reply is to stop just where the statute
commands them to stop. This question
was practically decided in the case of
McIntyre vs. Meldrin, 40 G., 490 —
There was no error in rejecting’ the de
fendant as a witness to testifv in his own
favor against the plaintiff on the trial of
this case. The record discloses the fact
that this is the third verdict found in fa
vor of the plaintiff in this case, and we
find no errors that will authorize this
Court to set it aside under the evidence
which is quite sufficient to sustain the
verdict of the jury.
The charge of the Court iu relation to
the admissions of the defendant, when
considered as an entire charge, was not
such on error as was calculated to mislead
the jury. g>As a matter of practice, when
counsel reads a written request to charge
in the presence and hearing of the jury,
the Court should either give.or refuse to
give such request in charge. If the re
quest is a legal and pertinent charge,
which ought to be given to the jury, then
the court should give it in £ke language
requested, by reading the same to the
the jury and not holdup the paper after
the same had been read and handed to
the Court, to say “Gentlemen, I give you
all these in charge as requested.”
The preponderance of the evidence in
this case was in favor of the verdict, and
we cannot say that it was not right under
that evidence. The jury were the proper
judges as to the credibility of the witnes
ses and the weight, to which their testi
mony was entitled on considering it.—
The losing party is rarely, if ever, satis
fied with a decision either of the court or
of the jury when against him; but the
public interest requires that there he an
end of litigation. We do not find any
error sufficient to authorize this Court to
interfere with the verdict or to control
the discretion of the Court below in re
fusing a new trial.
Judgment affirmed.
J. S. Hook, R. WL Carswell, for plain
tiff; A. R. Wright, contra.
E. H. Pughe vs. Jerry M. Carty—Libel.
WARNER, J.
This is an action brought by the plain
tiff against the defendant to recover dam
ages for the printing and publishing of a
libel in the columns of a daily newspa
per. On the trial, the jury found a ver
dict for the sum of $1,500. The defend
ant made a motion for a new trial on sev
eral grounds, which was overruled by the
Court, and defendant excepted. This
case was brought before the Court at a
former term, and decided by a majority
of the Court on tho same statement of
facts, or was presented on the last trial,
except that on the last trial the evidence
in relation to the dispute between the
two newspapers was more full and explicit
than on the former trial. The first
ground of error assigned to the charge of
the Court is in charging the jury that the
words charged iu the declaration were li
belous. There was no error in this
charge, as it amounted to nothing more
than saying that the words charged in
the declaration were rationale as a libel
under the law. The Court expressed no
opinion as to whether the evidence, as
proved on the trial, made out a libel un
der the circumstances attending the pub
lication. If the Court had charged the
jury that the evidence in itself constitu
ted a libelous publication under the cir
cumstances attending it, that would
have been error, because it would have
been an expression of opinion upon the
evidence in the case.
The counsel for defendant requested
the Court to charge the jury iu the exact
language of a majority of this Court as
applicable to the facts of this case,
that where a dispute is conduct
ed between two newspapers as to
the extent of their city circula
tion, and their employees volunteer to
take part in the strife, and one charges
an employee of the other, who is aiding
in the quarrel, with theft and duplicity,
and the other charges in return that the
employee of the first has been convicted
of perjury by the solemn oath of a gen
tleman whose veracity stands unim
peached and unimpeachable, and the lat
ter brings a suit for libel on the charge
contained in this published libel. The
jury in such eases should find nominal
damages only. The Judge stages that he
refused this charge for want of proof, but
the record shows that the proof was
quite as full on the last trial and a little
more so, than on the former arial, 40 Ga.
444. Whether the former judgment
of a majority of this Court was right or
wrong as. applicable to the facts of the
case, still it was the judgment of the
Court and the law of the case, which the
Court below, under the 4220 section of
the Code, was bound to respect and in
good faith to carry it into effect,- and
therefore should have given to the jury
the charge as requested, and it was error
in refusing to do sc, however erroneous
the judgment of a majority of this Court
may have been as to the law applicable
to the state of facts. It was not the
province or the duty of the Court to
question that judgment by a refusal to ad
minister the law as declared.
McKay, J.—I concur in the judgment
of the Court in this case, it being my
opinion that there was sufficient evidence
to authorize the charge, leaving it to the
jury to determine from thy evidence
whether the plaintiff voluntarily engaged
in the controversy.
Lockrane, C. J.—I desire ‘ simply to
pat off recording my concurrence in Aiis
case as based upon the previous decision
of the Court; 4U G. 447. As; au original
proposition in law, I would not have lim
ited the jury to nominal damages under
the proof, but left the jury/ free to find
the fact whether the plaintiff has volun
tarily engaged in the newspaper contro
versy, and to have assessed, such damages
as they may consider reascinable and just
under the rales of law an|d the facts 01
the case.
It has 1 een hinted that EMr. H. I. Kim
ball is not'in New York, aijid has not been
lately, and further, that h'e is afraid to
show himself either iu tiiat city or m
Georgia. We know not lnow this is, cer
tainly, but think the hint | or surmise i»
not an unreasonable one.
