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THE ATLANTA WEEKLY SUN.
THE DAILY SUN.
Thursday Mobning November 9
SUP HEME COURT DECISIONS.
November 7lb, 1871.
Executors of L. J. Dupreo vs. Lucy Y.
% Dupree et al.
LOCHRANE, C. J.
On account of the very largo amount
of business before the Court at the pres
ent term, it has been impossible for
Judge Lochrano to consult the au
thorities upon important principles of
law involved in the decision of the above
case, and we, therefore, order that the Stephens, contra,
judgment ot the Court m this case be ^ ’ .
postponed until the next term of this nwips Mprr,wpf1
Court, under the provisions of the Con
stitution of this State.
E. F. and W. W. Lawson, executors, et
al. vs. J. W. Grubb, Administrator.
LOCHRANE, C. J.
Where it appears from the bill that the
complainant had a judgment at law for
the amount of his debt, be has an ade
quate remedy by levy and sale of the pro
perty of defendant, and equity will not
assume jurisdiction to enforce by a de
cree of the Court the collection of the
judgment already obtained; where the
allegations of the bill set up • insolvency
merely; where the processes of the Court
is the* proper remedy, and demurrer to
such a bill ought to have been sustained.
Judgment reversed.
E. F. Lawson, J. S. Hook and S. A.
Corker for plaintiff; A. R. Wright
and J. F. Sherman contra.
Mary M. Marshall vs. E. S. Cohen—Nui
sance.
LOCHRANE, C. J.
Where a landlord rents a store in a
building of which the upper stories were
rented out to other tenants, and there
was a water - closet in the upper part,
which, by reason of obstructions thrown
in by the other tenants, overflowed and
damaged goods in the store:
Held, That the landlord was liable.
The fact that the overflow was caused by
the negligence of the other tenants, when
the proof showed that the landlord had
previous notice that the closet was in a
bad condition, and the fact that it was in
the premises at the time of the renting,
and that the plaintiff had access to it,
but did not use it, do not change the
liability. It is the duty of a landlord to
keep the premises free from the con
sequences arising ordinarily from
the use of a water closet, which
becomes a nuisance from its very
nature, when not properlv used and at
tended to, and if the landlord fails to
keep it properly attended to, and dama
ges ensue from his failure, he is liable.
Judgment affirmed.
T. E. Loyd for plaintiff; G. A. Mercer
contra. •
Emerlino and J. W. Johnson vs. Jno. R.
agreement in writing, that if the Courts
should afterwards establish the rule that
Confederate contracts were to bo settled
according to the valno of that currency
at maturity, they would modify their set
tlement accordingly.
Held, That the right of the plaintiff
to open the settlement, &c., is made by
the agreement to turn unon the rule that
Confederate contracts are to be settled
according to the value of that currency
at maturity. Before the plaintiff could
recover in this case, it was incumbent on
the plaintiff to show that the Courts had
so decided.
J udgment reversed.
Wm. McKinley, for plaintiff; Linton
Kelley—Guardianship of Idiot.
LOCHRANE, C. J.
In a contest for the guardianship of an
idiot, a colored man, one applicant being
a white person and the other an only sis
ter and nearest of kin to the ward, the
proof showing that both were objection
able, the Court charged the jury that,
other things being equal, relations were
to be preferred,
Held: That, under the ,Code, Section
1799, this charge did not, in its full
meaning, present the provisions of the
law to the consideration of the jury. The
language of the code is, “among collate
rals applying for guardianship, the near
est of kin, by blood, if otherwise unob
jectionable, shall be preferred.” The
philosophy of the law is wise, and its
administration ought to be enforced.
Judgment reversed.
G. F. Bartlett for plaintiff; Key & Pres
ton, Peeples & Howell contra.
J. J. Bell and B. J. Mims vs. C. C.
Thorpe—Rule against Sheriff.
LOCHRANE, C. J.
Held, that under the facts of this case,
the Sheriff, though out of office, was lia-
blo to rule, under the provisions of the
Code, and it was error in the Judge, upon
the trial of a traverse of the Sheriff’s
answer, to reject evidence of the fact that
the defendant in fi. fa. had property
in his possession sufficient to settle the
judgment at the time of the return of
nulla bona by such Sheriff upon the exe
cutions, and as such evidence was admis
sible and ought to have been submitted
to the jury for their consideration, under
the charge of the Court as to the whole
oase.
Judgment reversed.
W. B. Gaulden for plaintiff.
A. M. Stone vs. H. S. Wetmore—Quo
Warranto—Military Appointments.
LOCHRANE, C. J.
Under the facts in this case, Held that
General Terry did not, by his removal of
Wetmore as the Ordinary of Chatham
Co. and his appointment of Stono thereto,
convey such a title to the office, as upon
the application of Stone to the civil
courts, they could enforce under the
Constitution and laws of this State.
Held, again, The facts recited in the
petition for quo warranto, to-wit, that
Stone, after the removal of Wetmore, was
appointed to the office, and filed his
bond, and,was commisioned by the Gov
ernor, did not confer such a right to the
office as the civil courts can recognize.
The commission did not convey more
t.lmr> tiio order of appointment upon
which it was based, and that appoint
Charles Merriwether vs. Missouri Smith.
Contracts.
McKAY, J.
Where a contract for laborers, entered
into on Sunday, but the labor was per
formed afterwards:
Held, That the promisor cannot-de
fend by setting up the illegality of the
contract.
When a wife, by the consent of her
husband, makes a contract for her own
labor, in which contract it is agreed that
she is herself to receive the compensa
tion for the labor, she may, under our
law, sue and recover in her own name.
Judgment affirmed.
Key & Preston, Peeples & Howard for
plaintiff; G. T. Bartlett contra.
Bickford & Hold man vs. E. B. Chipmon
—Surprise.
McKAY, J.
A new trial will not be granted because
a witness swore on the trial to a fact
wholly unexpected to the plaintiff, who
at the time knew this statement was false
and that he could so prove by a witness
whose testimony he could have procured
had he thought such evidence necessary.
He should have moved'for a continuance
of the cose. He cannot take his chances
for a verdict in his favor and then plead
surprise, os there was some evidence as to
the agency of the witness, this Court
will ;not disturb the judgment of the
Court below, in refusing a new trial.
Judgment affirmed. -
A. W. Stone for plaintiff; Law, Lovell
& Falligaut, H. B. Tompkins contra.
A. M. Ross vs. John Williamson—Pro
ceeding to obtain books of predecessor
in office.
McKAY, J.
In a proceeding by an incoming officer,
who has been commissioned and
sworn, against the old officer, to compel
him to turn over the books of the office
as provided in sections 161,2, 3, 4, 5 and
6 of the Code, the courts will not go be
hind the commission to inquire into the
legality of the election and the eligibility
of the new officer. The simple fact that
the officer elected does not give bond and
take the oath of office in the time requir
ed by law is not sufficient to work a for
feiture of his office. It must affirmative
ly appear that the failure was by the fault
of the officer.
Judgment affirmed.
A. W. Stone for plaintiff; Hartridge &
Chisolm contra.
A. B. Smith vs. the Ordinary of Chatham
—Mandamus.
McKAY, J.
A solicitor general elected in 1867 is
estopped from claiming compensation
under a law passed in 1857 and repealed
in 1866. That section of the Constitu
tion of 1868 which confirms nearly all
the acts of the Legislature of 1865 and
1866 was only intended to quiet doubts
and was unnecessary to give them validi
ty. In any event, they were the acts of
a body in harmony with the United
States and good proprio vigore.
Judgment affirmed.
Tompkins & Garrard for plaintiff.
Executors of Martha Whitfield vs. S. J.
Wellborn—Tenancy.
WARNER, J.
This action was brought by the execu
tors to recover possession of a tract of
land in Jasper county. The plaintiff
proved the defendant in possession, and
that he rented it from Whitfield in 1864
He also proved the value of the yearly
rental, and that the premises in dispute
were a part of the land which witness’
father, Robinson, owned in his life-time.
On cross-examination the plaintiff’s wit
ness stated that defendant went into pos
session of the land in 1858, and had been
in possession ever since; that Whitfield
was in possession of the land; that de
fendant never claimed the land as his
own; that it was generally agreed by all
tne parties that the defendant should
take possession of the land. After the
plaintiff had closed the evidence the de
fendant made a motion to make McAfee
and others, who were the devisees of the
land under the will of R., parties defen
dant to lay a foundation to introduce evi
dence to show paramount title to the
land in them, and to prove that the de
fendant went into possession of the land
under them as their tenant, which motion
the Court overruled, and the defendant
excepted.
The defendant then introduced him
self as a witness to prove that he was not
the tenant of Whitfield, but of persons
claiming under the will of John Robin
son; that R. had been possessed of the
land for forty years prior to his death in
1867. This witness was rejected, because
the plaintiff’s testator was dead, and he
excepted.
The defendant offered, in evidence, a
ment expired with the power that gave certified copy of the will of Robinson, to
show the title in McAffee and others,
which the Court rejected, and the defen
dant excepted.
The defendant offered to prove by the
plaintiff’s witness the same facts, which
the Court would not allow, and defendant
excepted.
The jury found a verdict for the plain
tiff, and defendant moved for a new trial,
because of errors in the above rulings,
which motion was overruled.
While we recognize the general rule
that the tenant cannot dispute the land
lord’s title, yet, under the facts here, we
think the Court should have allowed the
parties to be made, received the will of
R., and evidence as to the identity of
the laud in the will, and as to whether
the defendant was tenant of the parties
claiming under the will, or whether he
was in possession a3 tenant of Whitfield.
Then the Court should have charged the
jury as to the law applicable to landlord
and tenant, and left the jury to find the
facts. There was no error in rejecting
the defendant as witness, the other party
being dead. See Executrix of Robinson
vs. Leaptrot, decided this term. We or
der a new trial.
Key & Preston, Peeples, for plaintiff;
W. A. Lofton, contra.
Russell vs. Chambers—Intruder’s Act
WARNER, J.
This was a proceeding to remove an
intruder under the 400Uth section of the
it existence.
Held, again, That appointments under
the reconstruction acts of Congress to the
civil offices by the General’s command,
was not by virtue of the Constitution of
the State, but by power of the acts of
Congress, and did not confer upon the
incumbent any title to the same * longer
than the acts themselves were of force.
Judgment affirmed.
A. Sloan, Wm. Dougheity for plaintiff;
Hartridge & Chisolm, Jackson, Lawton
& Bessinger, contra.
Milledgeville Manufacturing Company
vs. G. S. Rives—Attachment.
McKAY, J.
Where an attachment had issued against
A., and at the trial term, it was agreed
that B. should be.substituted for A.:
Held, That this was a dissolution of
the attachment, and the cause stood up
on the footing of an ordinary suit at law
against B., with a waiver of service.
An agreement to allow a certain instru
ment in writing, to be used as evidence,
waives all objections to it for want of a
stomp.
A settlement was made in 1867, of a
contract made in 1862, payable in Con
federate currency, the basis of the set
tlement being the value of Confederate
money at the date of the contract, which
the debtor then paid in cotton at 30 cents,
a pound, though it was really worth only
26 cents. The parties also made an
Code. The defendant filed a counter affi
davit, and upon the issue thus formed,
the case came on for trial in the Superior
Court. The jury passed for defendant.
A motion was made for a new trial and
overruled, aud the plaintiff excepted.—
From the facts there was reason in over
ruling that motion. The defendant claim
ed possession in good faith, aud under a
legal right, as shown by his deed for the
same. If the manner of entry thereon,
under that legal claim of right made in
good faith to the possession of the law,
was not legal, the plaintiff’s remedy was
for forcible entry and detainer, and for
an action to recover possession, but he
could not be removed as an intruder un
der the Code. 39 Gq. R. 197.
Judgment affirmed.
Urbanus Dart, Jr. vs. L. J. Dupree.—
Motion for new trial.'
WARNER, J.
This was an action on an open account
for wages. The jury found for the plain
tiff 8118. A motion was made for a new
trial, on the ground that the verdict was
contrary to law, to the charge of the
Court, to the evidence, and to the weight
of the evidence. The motion was over
ruled and the defendant excepted.
The evidence was conflicting, and the
jury were the judges of the credibility
of the witnesses and the weight they
were entitled to in view of their interest
and their relationship to the parties. In
such a case the uniform rule has been
not to interfere with the vrediot, where
no rule of law has been violated in sub
mitting the facts to the jnry, which
probably might have produced a differ
ent result, especially when the presiding
Judge is satisfied with the verdict. We
find no error in the record that author
ize this Court to set aside the verdict and
grant a new trial.
Judgment affirmed.
Harris and Davenport for plaintiff;
Harris and Williams contra.
J. J. McGowan vs. W. M. Davidson et
aL—Injunction.
WARNER, J.
This was a bill to restrain the defendant
as Tax Collector. of Chatham county,
from collecting a tax on spirituous
liquors in 1868, alleging that there was
no tax due thereon for that year; and, also
from collecting a penalty of 81000 for not
making their return for liquors sold by
them during the first of the year 1869, prior
to 18th March, 1869, the date of the act.
By the 8th section of the act of 1868,
providing for a specific tax on liquors
sold, it is expressly provided that that
section is to go into effect from and after
the 1st of October next. The act is da
ted the 5th October, 1868, but the 8th
section thereof was not to go into effect
until the 1st of October next thereafter,
which would be the 1st of October, 1869.
In view of the provisions of the Consti
tution which was adopted in 1868, it can
not he said to be of force in relation to
this act, after the new Constitution and
the .passage of the subsequent acts of
1868 and 1869. Our conclusion, then, is
that there was no la.v of force in 1868,
subsequent to the adoption of 1868,
which will authorize the tax collector
now to collect the tax on spirituous
liquors for that year, subsequent to that
time, and that as the act of 1869 was not
passed until ISth March, 1869, it would be
a harsh construction of it, to say the
least, that the complainants should be
compelled to pay the assessment of $1,000
for not making their returns for that por
tion of the year 1869 prior to the date of
the act. It is true the act is retroactive,
inasmuch as it declares that the 8th sec
tion of it shall go into effect from and af
ter the 12th day of January, 1869; but
the defendants could not have known its
provisions prior to its passage, on the
18th March, 1869, so as to regulate their
conduct by it, and now to assess them
$1,000 for not doing what they were not
required to do, until the passage of the
act, would be contrary to the fundamen
tal principles of justice.
Judgment affirmed.
A. W Stone for plaintiff; R. E. Lester
contra.
J. K. Jones vs. J. W. Lathrop & Co.—.
Commercial Law.
WARNER, J.
This action was brought against the
defendants as the drawers of five bills
of exchange, dated Savannah, 9th
July, 1867, for £200 each payable
to the order of plaintiff, in London,
at sixty days after sight, and directed
to Robert Huchinson, Liverpool, as
the drawee. The defendants pleaded
that in avowing these bills, they acted
merely as the factors of the plaintiff in
shipping his cotton to Liverpool to be
sold there, and that the bills were drawn
by them upon the proceeds of the sale of
plaintiff’s cotton, as his agents, and under
his instructions, according to the known
and usual custom of trade in such cases,
and not on their own account, and that-
they had not received any valuable con
sideration therefor from the plaintiff, as
the drawers of said bill.
It appears from the evidence that at
the time these bills were drawn, Hutch
inson, to whom the cotton was shipped,
and upon whom the bills were drawn,
was of good credit and standing as a
merchant; but before the bills were pre
sented for payment he became insolvent-.
The evidence on the trial was quite vo
luminous, being the written correspon
dence between the parties in relation
to the sale of the cotton and to the
sale „of these sterling bills used on
which had been delivered by the defend
ants to the plaintiff. The jury found for
the defendants. A motion was made for
a new trial and overruled, and the plain
tiff excepted.
This action is brought against these
drawers for no neglect of duty, as the
factors and agents of the plaintiff and
the question is, whether they are liable
as such drawers, The general rule of
law is, that the drawer of a bill of ex
change is liable for the payment thereof
to the payee named therein, and is found
ed on the theory that the drawer has
funds in the hands of the drawee, which
he sells or assigns to the payee for a val
uable consideration. But this presump
tion as between the original contracting
parties may. be rebutted and overcome
by the facts as between them.
What are the facts of the case ? The
plaintiff had eighty-five bales of cotton,
which; he] desired to have shipped to
Liverpool and sold there, and receive in
payment therefor sterling bills, and for
that purpose sent his cotton to the de
fendants, as his factors and agents in
Savannah. The cotton was received
by the defendants about January 28,1867,
who were instructed to ship the same to
their correspondents in Liverpool for sale.
In obedience to their instructions, they
shipped the cotton to Hutchinson, who
received and sold the same, rendering an
account of sales to defendants, dated
Liverpool, June 5,1S67. The account is
thus stated, “Account of sales of 85
bales of cotton per Sullivan from Savan
nah, sold by Robt Hutchinaon for ac
count of J. R. Jones, Esq., per Messrs.
J. W. Leaptrot & Co.” The cotton was
not sold on account of defendants, but
on account of plaintiff, and the proceeds
of the sale was not jthe property of de
fendants, but of plaintiff To enable the
plaintiff to receive the proceeds of the
cotton in the hands of Hutchison, the
defendants’ correspondent in Liverpool,
these bills were drawn according to the
usage and custom of trade in such cases
and were sterling hills in the commercial
sense of the term. The evidence shows
that the usage was to avow 60 days’ bills,
as was done here, by the commission mer
chant in Savannah shipping the cotton;
that it was the custom to put the proceeds
of the cotton sold in Liverpool to the
credit of the merchant shipping, but
the accounts at Liverpool showed to
whom the cotton belonged, and no person
except the merchant shipping the cotton,
could draw from the proceeds, who
would settle with his principal to whom
the cotton belonged; that the ac
counts rendered in this case were ac
cording to the usage and custom of trade.
These bills therefore, were in fact drawn
by the defendants on the shipping
factor and agents of plaintiff to enable
him to receive the proceeds of his cot
ton, and were not drawn for any valuable
consideration received from him.
After these bills were drawn and the
account of sales rendered, they were de
livered to him and he retained them in
his possession nearly three months
without objection, and in the mean
time, corresponded with the defendants
as to the best time when to dispose of
them at the highest premium, or ster
ling bills and finally transmitted them
to the defendants to sell for him,
as his agents, when, in their judgment
they could realize the highest market
value. Therefore, as late as the 20th of
October, the nlaintiff wrote the defen
dants to purchase three barrels of pork
and deduct the price thereof from the
sales of the bills of exchange then in
their hands for sale. After the defendants
had informed the plaintiff of the failure
of Hutchinson, he wrote them on the 8th
of November : “The loss of the money
will be a terrible blow on me—financially
speaking. I feel very blue on the sub
ject. You will please keep me regularly
advised of any new developments in the
matter, and for me see what can be made
out of the matter.” Again, on the 23d
of November, he wrote them that, “if, by
the 1st December next nothing satisfac
tory is received or heard from Mr. Hutch
inson, and you see no reasonable chance
to make anything out of the bills for
the present, or at an early date, to re
imburse you for the pork sent me, I will
remit the money to you for the pork.”
It is quite apparent that up to that time
the plaintiff did not consider the defen
dants personally liable to him as the
drawers of these bills, and he then had
full knowledge of all the facts. jps^
The relation of principal and agent
arises whenever one person expressly, or
by implication, authorizes another to act
for him, or subsequently ratifies the act
of another in his behalf: Code 2152.
The form in which the agent acts is im
material. If the principal’s name is dis
closed and the agent professes to act for
him, it will be held to be the act of the
principal: Code 2169. The plaintiff’s
name was disclosed by the defendants as
the owner of the cotton, when shipped to
Hutchinson by them as the agents of
plaintiff, and the account was rendered as
the proceeds of the sale of plaintiff’s cot
ton, according to the usage and custom
of trade, and not as the defendants’ cot
ton. The agents’ authority will be con
strued to include all necessary and usual
means for effectually executing it: Code
2170. According to the evidence the
drawing of these bills by the defendants
as the factors and shipping agents of plain
tiff was the necessary and usual means to
enable them as such agents to obtain the
proceeds of the cotton in sterling bills.
When the agency is known and the credit
is not expressly given to the agent, he is
not personally liable on the contract.
The question to whom the credit is given
is a question of fact for the jury in each
case—-Code, 2185; As between the de
fendants and the plaintiff their agency
in this shipment of his cotton to Liver
pool, and procuring sterling exchange for
the proceeds thereof, according to the
usual custom of trade, was well known to
him, and the question whether the plain
tiff received the bills from them on their
credit, as the drawers thereof, or on the
credit of his own cotton shioped and
sold by them in Liverpool, by his agents,
was a question to be decided by the jury
under the evidence.
Whatever might have been the liabili
ty of defendants, as drawers of these
bills, if the same had been negotiated
and in the hands of a bona fide holder
for value, it is not necessary to discuss in
this case. The main controlling ques
tion presented is, whether the defend
ants are personally liable as drawers in
this case. In our judgment they are not,
and as there is no material error in the
charge of the Court to the jury, or in
refusing to charge as requested, and the
verdict being right, under the law, ap
plicable to the facts of the case, we are
of opinion that the judgment should be
affirmed.
Lochkane, C. J., concurs: McKat, J.,,
dissents.
Lyon, deGraffenried & Irwin, Jack-
son, Lawton aud Bassinger for plaintiff;
Harden & Levy, contra.
November 9, 1871.
Wm. H. Bremer vs. Wm. Jones—Injunc
tion.
LOCHRANE, C. J. /
Where, by a mistake of the magis
trate in failing to mark the name of
counsel to defendants suit, pending in
his court, judgment was obtained against
the defendant, and such defendant, un
der a mistake and in ignorance of the
facts, let the time elapse for appeal, and
filed his bill stating the facts, and the
mistake, and also that'he was not liable
for the debt sued, it being, as he alleges,
a promise to pay the debt of another,,
under conditions which is denied by the
defendant to the bill. Before hearing
the evidence, the court refused the in
junction.
Held, That the Court erred under the
facts alleged in the bill, the judgment
having been obtained by mistake. Equity
had jurisdiction, and the fact of liability,
was a question for the jury upon the
evidence, and it was the duty of the
Court to have restrained the levy under
such judgment, until the hearing upon
all the facts and evidence of the case.
Judgment reversed.
J. A. Ansley for plaintiff, and S. Lump
kin, contra.
B. F. Carr vs. A. H. Lee, Executor, et
al.—Injunction.
WARNER, J.
This was a bill filed praying an injunc
tion on the following statement of facts:
In March, 1868, Lee, Executor of Hen
derson, obtained a judgment against
Carr, the complainant, for 3,500 00, on
which an execution issued, and was levied
on Carr’s property, and advertised for
sale by the Sheriff on the 1st. Tuesday of
November, 1871; that on the 4th of Oc
tober, 1871, Ruth Henderson, a judgment
creditor of Lee, whose judgment was ob
tained on the 29th of March, 1871, sued
out a summons of garnishment against
Carr, requiring him to answer at the
Superior Court of Rockdale county on
the second Monday in March, 1872, what
he was indebted to Lee. The Court re
fused the injunction, and the complain
ant excepted. If Carr’s property had
been sold as advertised, on the
first Tuesday in November, 1871,
and had satisfied Lee’s judg
ment against him, then he would not
have owed him anything and would have
so answered the summons of garnishment
in March, 1872. But if the sale of his
property did not satisfy Lee’s judgment
then he could have answered what
amount he then owed Lee, after deduct
ing the amount which his property lev
ied on had been sold for, so that there
would have been no difficulty in protect
ing himself from having to pay the debt
twice, as the summons of garnishment
did not require him to answer until
March 22, and Lee’s judgment being of
older date than the service of the sum
mons of garnishment, would have pro
tected him as against Ruth Henderson’s
.garnishment as to the amount of the sale
of his property.
Judgment affirmed.
Lochrane, C. J. and McKay, J.. concur
for different reasons.
A. B. Sims for plaintiff. L. B. Ander
son by Z. B. Harrison, contra.
S. Zeigler et al., vs. T. H. Beasley—In
junction.
WARNER, J.
This was a bill filed by the complain
ant against the defendants, on the 30th
of October, 1871, praying for an injunc
tion to restrain the collection of a note
then in suit, and to restrain the transfer
of two other notes not then due, which
the complainant did give to defendants
for the purchase of a tract of land, that
the chief value of said land was the
timber then standing on it, whsch was
the main inducement in making the pur
chase thereof. That, prior to the sale of
the land to the complainants, the de
fendants had sold the timber on the land
to other parties without his knowledge.
The injunction was granted, the bill de
murred to for want of equity, inasmuch
as the complainant had an adequate and
complete remedy at law. The Court
overruled the demurrer and sustained
the injunction, whereupon the defen
dants excepted.
In view of the facts disclosed by the
record, there was no error in the judg
ment of the Court below. The bill and
injunction were properly retained on the
grounds; first, for the purpose of
restraining the transfer of the two
notes not due at the time of the
filing of the bill; second, to prevent a
multiplicity of suits, on the several notes
given for the land, as the same become
due, so as to have the whole controversy
between the parties, in relation to the
sale of land, settled by the decree on the
final hearing of the bill.
Judgment affirmed.
B. W. Williams and B. Tompkins, for
plaintiff; J. C. Nichols, byZ. D. Harri
son, contra.
D. B. Marshall & Bro. vs. Willis Cleary
—Motion for new trial.
McKAY, J.
Where a bill of exchange was accepted
conditionally, if funds of the drawer
come in hand, it is for the holder of the
bill to show, affirmatively, that funds did
come in hand, and the production of a
stated account between the acceptor aud
drawer, showing a charge against the
drawer of $500 in cash, does not, of it-
„„ For tho Atlanta Sun
Rusting Sword.
By H. 8. F.
Just where we hung it on tho wall,
His sword may now be seen.
Though time has bleached our locks since then,
And rust bedimmed its sheen, *
An eating sorrow since that day '
Has made our old hearts sore,
Aud tears perhaps hive helped to rust
The sword our dead boy wore.
Xo braver hand than his e’er bore
In strife a soldier’s sword.
Our country had no truer heart
Upon her altars poured;
And patriot pride illumes our grief
For tho child wo so deplore,
And the glory of our lone old age
Is the gallant sword ho wore.
Our old lives flounder iu the stream
Of rapid social change.
And the nerveless heart is feeble now
To strive with customs strange,
A fit companion for the lives
That have out-lived their day, '
Is that lone sword upon the wall,
Rusting itself away.
Raytown, Taliaferro county, Georgia.
SUN-STROKES.
Several women voted
York. Forward, the calico!
in New
The papers are dropping the Fire
Fiend, and are resorting to “fiery
scourges.”
Iu the late Iowa election, a Miss
Lizzie Anderson voted and her vote was
counted.
George Wm. Curtis, editor of
Harper's Weeldy, is slated as successor to
Secretary Fish.
Some honest Kentucky politician
has given the Courier-Journal a delicate
hint by sending it a keg of Bourbon
whisky. No more editorials may be ex
pected until that keg is emptied.
“The great Writ of Liberty de
pending on the blunders of a stupid
clerk—this is a specimen of the best gov
ernment !”— [Louisville Ledger.) It only
shows that the “stupid clerk” is in the
employ of stupider masters.
Some newspapers seem deter
mined to knock alljthe romance out of our
country’s history. A Philadeiphia paper
is now showing that Pocahontas married
a Dutchman ; though it is not reckless
enough to say he kept a lager beer sa
loon.
►-#-<
£Sa?°* The Opelika Locomotive says :—
“ Somebody, who seems to have a fond
ness for military titles, dubs John
Black, of the News, * Major.’ That’s an
other good joke. ” Of course it is a good
joke, as everybody who knows John
Black, knows he is a minor.
H@™It is no wonder that John Quin
cy Adams could not even be elected to
the Legislature of Massachusetts. Du
ring the canvass his views upon the Wo
man Movement were desired, and he
said: “lam, after careful thought and
some study, firmly and unequivocably
opposed to Woman Suffrage, and I shall
feel it my duty, in the very improbable
contingency of my ever occupying any
considerable public office, to standby
the old immemorial division of activities
and functions which seems to me to lie
at the foundation of society.” This, no
doubt, put all the women in the State
against him, thereby organizing an op-
self, prove that the same was the "funds P os ^ on which all the power of the army
of the drawer, there being nothing in ant ^ navy of Massachusetts could not
the per cent, to show that at the time of
this charge, the acceptor was indebted to
the drawer, or had his funds in hand.
Ju dgment reversed.
W. B. Flemming and J. D. Rumph for
plaintiff J. C. Nichols, contra.
Lee, Wyly & Co., vs. S. Overstreet.—As
sumpsit.
McKAY, J.
When there is a written agreement that
one party would furnish and the other
take ail the crude turpentine made on a
certain plantation, when delivered in
lots of 40 barrels and pay for the lots on
delivery, and if either party failed he
should forfeit $1,000.
Held, that the thousand dollais is to
be considered a penalty and not liquid
ated damages, and on the failure of either
party, the actual damages axe all that
can be recovered.
Harris & Williams, J. M. Norwood by
A. W. Hammond & Son, for plaintiff.—
Ware & Nichols, Clark & Spencer, Glenn
& Son, contra.
B. Parsons, et. al., vs. Atlanta Universi
ty. Injunction and the Atlanta Uni
versity vs. R. Parsons, et. al. Demur
rer from Atlanta.
McKAY, J.?
A mere project or plat of land on pa
per, laying off streets, blocks and lanes
in a city, is not itself a dedication of the
streets to public use, and where there is
a proposition to city authorities to re-
have overcome. But, for all that, bis
sentiments upon the subject were manly.
What Grant’s opinion was five
years ago is shown in a bit of record that
is ruthlessly raked up by the Washington
correspondent of the Savannah News.
In 1866, during some riots in Baltimore,
Andrew Johnson ordered Grant, who was
General of the Army, to take, troops and
go to the assistance of the Maryland civil
authorities. The proposition smote
harshly upon Grant’s idea of State Rights,
and he wrote to the President, over his
own proper signature, the following par
agraph:
“The conviction is forced on my mind
that no reason now exists for giving or
promising the military aid of the Govern
ment to support the laws of Maryland.
The tendency of giving snch aid, or pro
mising, would tend to produce the very
result to be averted. So far there seems
to be merely a very bitter contest for po
litical ascendancy in the State. Military
interference would be interpreted as giv
ing aid to one of the factions, no matter
how pure the intentions or how just the
instructions. It is a contingency which
I hope never to see arise in this country
_ while I occupy the position of General-
ceive and adopt such streets as public in-Chief of the armies of the United
streets, the dedication is not complete States, to have to send troops into a State
unless the authorities affirmatively re
ceive and adopt the same, and this must
appear by tho minutes of the Council.
2. The City Council of Atlanta in lay-
in full relations with the General Gov
ernment on the eve of an election, to
preserve the peace. If instances do
come, the law provides the way of calling
ing out or recovering public streets, acts out the military to suppress it.
as a court, and its proceedings can only be
proved by its records. Parol evidence of
its action cannot be received.
3. In the absence of any formal accep
tance by the public authorities of the
dedication of a street, there must be
clear proof of a continuance and notori
ous user, for a reasonable time, by the
public, to constitute an acceptance.*
4 Where there is controversy pending
between the public authorities of a city
as to the existence or non-existence of a
public street, and the public authorities
are temporary enjoined from opening the
same, by bill, it is not competent for pri
vate citizens, as such, to file a new bill,
pending the other to enjoin the obstruc
tion of the street, unless they show some
special damage to themselves from said
obstructions, differing from the injury to
the public.
Collier, Mynatt & Collier for the At
lanta University; Clark & Spencer, New
man & -Harrison, contra.
Court adjourned to the next term in
course, commencing 2d Monday in Jan
uary, 1872.
Bat whether law has changed or not,
Grant has; and we now see him courting
occasion to do now what he then repro
bated. Alas, that so g? - eat a revolution
should have taken place in his mind.
An Inquiry Not Answered.
Dr. Angier has called upon Judge Con
ley for Bullock’s official Bank Book Re
port kept by Mr. Scott, his warrant clerk,
showing his account with tho Georgia
National Rank in this city, but he refuses
to furnish it on the ground that it is a
private and not a public record.
The Bank used to pay large drafts of
Bullock, when he was in Washington
spending thousands for editorials written
by himself, to appear in Forney’s Chron
icle.
It is desirable to see if his transactions
with this Bank resemble those with
Clews & Ca
