Newspaper Page Text
THE ATLANTA SUN
The Gold ofOphir.
THE ATLANTA WEEKLY SUN, FOR THE WEEK ENDING APRIL 3, 18/2.
SUPREME COURT DECISIONS.
Delivered at Atlanta, Tuesday, Mar. 26, ’72.
Despite the remonstronco ot the pro-
Walker.
WARNER, C. J.
The defendant was arrested under a j
prietics, the Divine declaration is inevi
table, that the last shall be first Ever and
anon the great good comes ont of Naza
reth: in the Valley of Shadows upspring-
eth the Light. This inquisitive age
even now seldom halts at such queer rid
dles as Samson’s; but “reckons” or
“guesses” that honey may be found in a
lion’s mouth.
In the Cycle of Centuries, Africa is
reappearing, in proof of what has been
•will be ; heralded with her classic music
of Alcmnon, guarded by her Spliynx,
and commemorated in her Pyramids.
The awful ruins of Carnac and the won
ders of the remote regions of the Nile,
have for years attracted and deeply im
pressed the most celebrated travellers.
Tho hieroglyphics of Egypt are now be
ing deciphered lo read as tho sublimest
records of history. A clergyman of New
York recently resigned a long pastorate
to engross himself in these distant and
solitary researches, whose popularity was
so great that his parish voted him a part
ing present of about $150,000. To a sordid
world such “sacrifices” are unaccounta
ble; but “he that humbleth himself shall
be exalted.”
Lately astonishing and alluring devel
opments have been made in Southern
Africa; including, says the New York
Herald, “Ruins, Monaments, and Arch
eological Wonders of Solomon’s time”—
none other than the famous Land of
Ophir, which furnished the gorgeous and
astounding wealth and ornamentation of
the Temple at Jerusalem. The an
nouncement of vast gold and diamond
fields strikes the .chords for a full chorus
of tho missionary hymn, as to where
“Afric’s sunny fountains
Iloll down their golden lands."
Excitement higlitens as the money-
brooding English extend their Cape
Colonies over the Orange River and
Transvaal republics—from quartz to al
luvial gold fields, from diamond beds to
the Ophir mines of King Solomon.
In the fourteenth century the Portu
gese (whose land must yet take its il
lustrious appearance by the wheel of
fortune) had opulent dominions in Sofa-
la, tho center of present attraction.
Their substance long since became as a
shadow; but they left rehearsed the f or-
mer Arab traditions of still more remote
Phoenician glory in this clime.
Not until Prussia came to the front in
discovery as in military prowess, were the
stories verified of its grand ruins and
singular wealth. The Berlin Society
sent Carl Mauch to report on its resour
ces and primeval structures. This is the
first step iu the march of its archaeolog
ical investigation.
The location is in latitude 20 s * 14’ south
and longitude 31 Q 48’ east, agreeing ful
ly with Don Santos, the Portugese writer.
At Zimbaya the ruins are magnificent,
and are held sacred by the natives; who
all believe that whites once lived iu this
region, and show utensils of civilization
They cultivate rice and corn and possess
extensive herds.
Is this the land of Opliir?—where Solo
mon, tho wisest, three thousand years
ago, obtained the gorgeous fittings of his
most renowned Temple. The Biblical
time of a three years’ voyage corrobo
rates ; also that Phoenician ships were
used, whose southern ernises are indis
putable. The Arabs, sncceeding the
decline of Phoenicia, are known to have
continued throughout the Middle Ages,
a trade from the Persian Gulf as far
south as Sofala. Tho Portugese four
hundred years ago, according to Carl
Manch, found there vast gold mines
“ worked from time immemorial, and near
them ruins of structures which, accord
ing to native traditions, were built by
Queen iSaba. Lopez, the historian,
records that the natives pride themselves
on possessing books of great antiquity,
which testified to the Ophir cruises of
Solomon.”
Was not this the Queen of Sheba,
whose distinguished visit to Solomon is
recorded in Biblical loro? The
themselves surely can speak no decep
tive story. These are unmistakably
Phoenician. Dr. Petermonn, of Gotha,
says, that “the fact of all of them, with
out exception, being of hewn granite,
put together without mortar, testifies to a
high antiquity ; and the drawings of the
ornaments sent in by Mauch, prove that
they do not originate from the Portu
gese nor from the Arabs, but very likely
from Phoenicians, the Solomonic Ophir
Wm. H. Dabney for plaintiff in error;
J. W. H. Underwood, contra.
The Selma, Rome and Dalton Railroad
Company vs. H. M. Camp. Right of
way from Floyd.
WARNER, C. J.
This case came before the Court below
on an appeal from the assessment of
bastardy warrant issued by a Jnstice of I damages un^rproceeding^in^itt^ed by
wiT aDd,H>t bemg r e ady f °ra the s R and D< B. b R. Company
; n T? Sth ® w? was postponed to a fu- UIlder the provisions of the charter of
ture day, and the defendant gave bond the compai f v to ascertain the damage
and secunty for his appearance on the done to H . C amp, of the countv “ f
c.ay named by tec Justice for the hear-, p{ OV( ] by the location of the Railroad on
mg of the charge contained m the war- 1 - - - - -
rant. The defendant failed to appear at
the time appointed, and suit was insti
tuted on the bond in the name of the
Governor for the use of Martha J. Car-
son against the principal and his securi
ties. There was a demurrer to the de
claration which was over-rnled by the
court, and the declaration ordered to be
amended by striking out the name of
Mary Jane Carson, the usee, to which the
defendants excepted. This was a quasi
criminal proceeding against the defend
ant for investigation before the Jnstice.
The defendant was legally arrested and
brought before him upon the accusation
of bastardy, and the bond for his appear
ance was legally taken according to the
provisions of) the 4633d and 4635th sec
tions of the Code. Let the judgement
of the court below be affirmed.
E. M. Dodson by Wm. H. Dabney for
plaintiff in error. No appearance contra.
rs. Mary
Ejectment
The nature of the case substantiates
other reasons for this important conclu
sion. Since the mind of man runneth not
to the contrary, Africa has had the repu
tation of being auriferous. Yoyages
from Solomon’s ports on the Red Sea,
along the eastern coast of Africa, were
within the means of the navigation of
that age, in which Phoenicia excelled
following the coast was the most likely
mode, and hence about Sofala was the
probable destination. The gold and
jewels of the Jewish Temple were of the
finest, and the blazing diamonds of Cape
Colony throw all others in the shade; its
“much fine gold” could only equal that
of Ophir, while all admit tbat the ivory
of Africa beats all but the Jews.
The Eatonton Press <fc Messenger learns
from the Tax Collector that he has issued
about seven hundred executions against
defaulters, and will have some three hun
dred more to issue, making one thousand
in Putnam county.
Weslev Shropshire, el al.,
A. Brown, administratrix,
from Chattooga.
WARNER, C. J.
• This was a bill filed by Mary A.
Brown, administratrix of Warren Brown,
against the executors of William
Brown, deceased, to compel the spe
cific performance of a parole contract for
the sale of lot of land number 31 in the
25th district of Chattooga county, al
leged to have been made between the com
plainant’s intestate, Warren Brown, and
the defendant’3 testator, William Brown.
Oh the trial of the case the jary found a
verdict for the complainant, decreeing a
specific performance of the alleged con
tract. A motion was made for a new
trial on several grounds, but the princi
pal ground insisted upon was that no
contract was proved which would entitle
the complainant to a decree for a specific
performance of it; which motion was
overruled, and the defendants excepted.
The answer to the complainant’s bill
denies the alleged parol contract.
The testator, William Brown, made his
will about ten days before his death, and
devised his lands, including the lot in
controversy, to his wife, during her life,
and at her death to be sold and equally
divided between his children, named
therein, one of whom was his son War
ren.
The evidence shows that the complain
ants intestate, was not in possession of
the lot of land until after his father’s
death. It is claimed that his father, in a
letter written to Warren, (who then lived
in Alabama,) on the 28th September,
1857, requesting him to come and see
him, and expressing the hope that he
would come, induced him to sell out there
and move back to Georgia, at a sacrifice
of $660 00. but there is not one word in
that letter about any contract for the sale
of the land to him. It is shown by tho
evidence that he came to his father’s, and
lived there until his father’s death, and
that his father said to Shropshire and
others a day or two before his death,
That bis son Warren had come here to
wait on him in his old age, and spent
$600 00 to come, and he wanted to make
him whole, and wanted Shropshire to see
that his son, Warren, have a good title
to his lower lot of land, a title they can’t
jostle him in."
Kirby states that Ward, one of the exec
utors of Mr. Brown, in a discussion with
him about bis defense, said that he had
no doubt some understanding, as is sta
ted in the bill, existed between the old
man Brown and his son Warren, but
Warren had no writing, and his wife and
children could not hold it. This is sub
stantially the evidence in the record to
prove the parol contract for the
sale of the land by William Brown to
his son Warren, which is sought to have
specifically performed. To entitle the com
plainant to a decree for a specific per
formance of the alleged parol contract
between Wm. Brown and Warren Brown
for the sale of the lot of land, the con
tract must first be established with rea
sonable certainty, and the consideration
claimed to have been paid or rendered
must be clearly proved to have been paid
or rendered in pursuance of that contract.
The consideration claimed to have been
paid by the complainant s intestate for
the lot of land, was the damage and loss
of six hundred dollars sustained by him
in removing from Alabama to Georgia to
attend to his father’s business. Whether
that sum was a full and adequate consid
eration for the lot ol land, the record
does not inform us, as it contains no evi
dence of the value of the lot alleged to
have been contracted for.
The counsel for the defendants request
ed the Court to charge the jury: “That
it does not require as much evidence to
defeat a specific performance' of a con
tract as it does to rescind a contract exe
cuted, and inadequacy of price, or con
sideration, may- justify the Court and
jury in refusing to decree a specific per
formance.” The Court qualified the re
quest by adding: “If snch as to induce
the jury to suspect imposition or fraud
when the contract is between father and
son, that fact may be considered for what
it is worth in connection with the
amount of consideration, and all the
other facts and circumstances to enable
you to determine whether this contract
was fairly and bona fide made and ob
tained, if made at alL ,r
This qualification of the request by the
Court to charge the jury was error," and
especially so iu view of the facts of this
case, there being no evidence of fraud or
imposition practiced upon the complain
ont’s intestate. The increased value of
land, reseulting from the altered condi
tion of our people, admonishes us that
the well established principles which
govern courts of equity in decreeing
the specific performance of parol con
tracts for the sale of real estate, ought
not to be relaxed.
In our judgment the evidence disclosed
in this record does not establish such a
parol contract for the sale of the lot of
land in controversy as would authorize
the Court and jury to decree a specific
performance oi it according to the well
recognized principles by which Courts of
equity are governed and controlled in
such cases. Let the judgment of the
Court below be reversed.
money, to-wit: five thousand dollars,
which I was enabled to apply to the pay
ment of the debts of said estate.”
The deed was written by Judge Wright,
the father of Mrs. Shropshire, and the
grandfather of her children who are the
plaintiff’s in the ejectment suit, and was
executed by the paternal grandfather of I reference to the parol contract, will be
the children. Halts swears that the deed j sufficient part performance to justify a
was prepared by Judge Wright, and decree. Code, section 3131, The statute
handed to him by Judge Wright, who i of frauds requires tliafe “any contract for
If F. C.'Shropshire, while in life, had
made a parol contract with Halts for the
sale of the land, audliad recevied the con
sideration therefor, a court of equity
would have compelled a specific perform
ance of it. Full payment alone accepted
by tho vendor, if clearly proved wit]
bis laud. On the trial the jury found a
verdict for five hundred dollars. A mo
tion was mode for a new trial on the part
of the Railroad Company, which was
overruled, and the company excepted.
The evidence is that five acres of land
was taken by the company, worth $125;
the other damage done to his property is
proved to have been $250, making the
entire actual damage sustained $37L •
It is true that the plaintiff states that
his mill, which is located on another tract
about two hundred yards from the rail
road, was injured $600, but in what man
ner-the location of the road injured it is
not stated, except the loss of custom, and
that it cost him $1,100, and he has sold
it for $400.
Nelms, the witness, testifies that the
custom, to the mill decreased' about one-
half after the railroad was built, and that
Camp sold the mill before the road was
finished, but after the grading and change
of the mill road-
The damage done to the mill, for which
the plaintiff is entitled to compensation,
is the actual damage done to the prop
erty by the location and use of the road,
resulting directly from an invasion of bis
property by the railroad company. If
the plaintiff had instituted a suit against
the company for an invasion of his free
hold estate, then he might have been re
quired to prove a title to his land, but as
the railroad company originated the pro
ceedings against him as the owner of the
land to assess the damages for the right
of way under their charter, and he being
in possession of the land and recognized
by the company as the owner thereof, it
was not incumbent on him to prove his
title to the land at the trial.
In the view which we take of this case,
our judgment is that the judgment of the
court should be reversed, unless the
plaintiff shall consent to write off from
the.verdict the sum of $125, so as to leave
the sum of $375 as the amount of the ver
dict, and in the event he shall consent to
do so, that the judgment be affirmed for
that amount. Let the judgment be en
tered accordingly.
Printup &Fouche for plaintiff in error.
Wright & Featherston contra.
J. C. Rawlins vs. Mary A. Shropshire.
Ejectment, from Floyd.
WARNER, C. J.
On the 12th day of June, 1869, the
heirs-at-law of F. C. Shropshire, brought
an action of Ejectment against J. C.
Rawlins to recover the possession of a
tract of land in the county of Floyd, con
taining twenty-seven and one-half acres,
being the place whereon F. C. Shropshire
formerly resided. The plaintiff? are
the widow and children of F. C. Shrop
shire.
When the case was called for trial the
defendants made a motion for a contin
uance on the ground that they desired'to
file a bill on the equity side of the Court
to bring other parties before the Court,
and set up certain equities against the
plaintiff’s right to recover in the action
of Ejectment, statiDg to the Court the
facts which constituted their equitable
defense. The Court amended the motion
on the ground that under the existing
laws of this State, new parties would be
made and the rights of all could be set
tled on equitable principles in the present
action. The defendant then amended
his plea setting forth his equitable
grounds for relief, and the Court granted
an order mailing Wesley Shropshire ad
ministrator of F. C. Shropshire, a party
plaintiff, and also making J. P. Holts,
through whom defendant claimed the
title, a party defendant.
The cause then proceeded to trial,
when the following facts in substance
were proved as disclosed by the record :
In the summer of 1862 F. C. Shropshire,
a short time before he left home to enter
the Confederate service, told the witness,
Johnson, that he was then preparing to
enter the service, and needed all the
money he then had, but said he had put
his place—the property in dispute—in
the hands of Mr. Stevens for sale, and so
soon as he made sale of it would then be
able to pay all his debts; said he could
not pay his debts until the property was
sold;requested the witness to assist Ste
vens in the sale of it, and if he could find
any one wishing to purchase, to send
them to Stevens; said his price for the
property was $5,000. On the 18th of
November, 1862, Halts purchased the
properly of Stevens as the agent of F. C.
Shropshire, and paid him therefor the
sum of $5,000 in cash. The money was
raised by calling in loans made previous
to the war, receiving the Confederate
money paid for the land from his debt
ors as gold, dollar for dollar. Shropshire
was living at the time of the purchase of
the property, but died shortly afterwards
before a deed was executed. Stevens,
the agent, is also dead.
After tlie sale of the property by Ste
vens to Holts, Mrs. Shropshire, the wid
ow,.and her children vacated the prem
ises, and Hults took possession of
under the purchase from Stevens, as the
agent of Shropshire, on the 1st of
March, 1S63, and continued in posses
sion of it until 1866, when he sold it to
Cleaves for $5,000 cash. Shortly after
the death of F. C. Shropshire his father,
Wesley Shropshire, became the adminis
trator on his estate, and executed a bond
to make a title to the property, in which
it is recited: “Whereas, Francis C
Shropshire, in his life time, by liisag?nt,
J. R. Stevens, did sell the place where
he resided, near Rome, Georgia, "for the
sum of five thousand dollars.” This
bond is dated on the 26th of December,
1862, while all the facts relating to the
sale of the property may fairly be pre
sumed to have been well known to the
parties interested. On the 31st of Octo
ber, 1866, Wesley Shropshire, the ad
miuistrator, made a deed to the property
to Cleaves by the consent of Hnlts, who
had sold the property to Cleaves. In
this deed it is recited that-, “whereas,
Francis D. Shropshire did in liis life
time, by his agent, J. R. Stevens, sell
his residence near Rome, and the lands
thereunto belonging, being about 27}
acres of land, and did then departj this
life intestate, without executing title
thereto, and afterwards the said Cleaves
did pay me, the administrator of the said
Francis C. Shropshire, the purchase
assured him the deed was good and con
veyed a perfect title to Cleaves. Judge
Wright, who vras examined as a witness,
admits writing the deed, but denies tell
ing Halts the title was good. Hults
asked him to write the deed and paid
him for writing it. The reason why the
deed was made direct to Cleaves instead
of to Hults, was to save stamps. Wesley
Shropshire, who was examined as a wit
ness, states that Judge Wright advised
him to accept the money, and pay
Frank’s debts; that he has paid all the
debts with the money except one. la
his return to the. Court of Ordinary,
Wesley Shropshire charges himself with
the following receipt:
“Received December 26,1862, of J. It.
Stevens five thousand dollars in full, for
the purchase of F. C. Shropshire’s house
and lands on the Calhoun road, one and
one-fourth miles from the city of Rome,
Ga. “Wesley Shropshiee.
“Adm’r of F. C. Shropshire, dee’d.
The original receipt was read in evi
dence, and proved to have been written
by Judge Wright as well as the bond, who
was the legal adviser of the administrator.
The return also shows the pay men t of debts
of F. C. Shropshire to the amount of $4,-
750. No other property belonging to the
intestate’s estate except the $5,000 men
tioned in the - receipt to Stephens for
the proceeds of the sale of the premises
in dispute, appears in the returns of the
administrator to the Court of Ordinary.
In December, 1868, Cleaves sold the
property to Rawlins for $6,000, who
made valuable improvements on it,
worth $1,200, Cleaves was dead at the
time of the trial. There is other testi
mony in the record, but the foregoing
recited embodies the main facts which
must control our judgment. The jury,
after hearing tho charge of the Court,
returned the following verdict: “We,
the jury, find for the plaintiff? the prem
ises, together with fourteen hundred and
fifty-two dollars for rents; and find for
the defendants five thousand dollars, and
interest on the same from the 18th of
November, 1872, to date, and in addition
thereto the sum of twelve hundred dol
lars, and interest on that amount from
the 27th of July, 1868, for improvements,
and plaintiffs to pay the costs of suit.
This 27tu July, 1871. Ebeu Hillyer,
foreman.
Oa this special verdict of the jury the
Chancellor ordered the following decree
to be entered: “It is ordered, adjudged
aud decreed by the court, that the said
heirs of Francis C. Shropshire do recover
of the said J. C. Rawlins and his tenants
the premises in dispute, and that the
Clerk do issue the usual writ of posses
sion for said premises after the expira
tion of thirty days from this date, and
that the rents be set off against the im
provements as the value of the improve
ments made by Rawlins and interest
thereon just equals the rents. And that
John P. Halts do recover of Wesley
Shropshire, as the administrator of Fran
cis C. Shropshire, damages in the sum of
five thousand dollars, principal, and the
sum of three thousand and forty-two dol
lars and seven cents, interest to date, and
that defendants recover of plaintiffs the
sum of dollars, costs of suit. Au
gust 9th, 1871. J. R. Parrott, Judge
presiding.”
This decree is excepted to, and also the
charge of the court to the jury is except
ed to. If we are to consider this case as
being tried according to thn well estab
lished principles which govern courts of
equity iu enforcing specific performance
of parol contracts for the sale’of land,
then there was manifest error in. the
charge of the court to the jury, but the
charge of the court does not appear to
have hurt the defendants, for the jury,
notwithstanding the errors in the charge
of the court, have returned an equitable
verdict. The effect of their verdict is
the enforcement of the parol contract
made between Hults and Stevens as the
agent of F. O. Shropshire for the sale of
the land. It is true the jury, in the ex
ercise of their discretion, have decreed at
the same time that Hults, or those claim
ing under him, are entitled to be first
paid the purchase money which the an
cestor of the heirs received for the
sale of the land, and wbicn has been ap
plied to the payment of his debts.
This is a very crafty subtle attempt to
appropriate money for which the land
sold, to the payment of the debts of the in
testate, and thus protect the property
from the payment thereof for the benefit
of the heirs, under the strictforms of law,
contrary to the principles of equity and
good conscience. What equity or j ustice
is there in making Shropshire, the ad
ministrator, pay the five thousand dol
lars, with the interest thereon, when it
has been applied by him, in good faith,
to the payment of the debts o£ the in
testate ? The heirs of the intestate were
not entitled either in law or equity, to
inherit his property until the debts due
by him were first paid. There can be no
ddubt from the evidence in the record,
and the conduct of the parties interested
in the sale of this property, that Stevens
was the agent of F. C. Shropshire to sell
it, and that he did sell it during the life
of Shropshire, and received therefor the
sum of five thousand dollars from Hults,
the purchaser, which sum of five thou
sand dollars, less Stevens’ commission,
was paid over to his administrator, and
applied by him in payment of the intes
tate’s debts. These are the plain, naked
facts of the case.
It is true that there is no evidence of
any written authority from F. C. Shrop
shire to Stevens to sell the land, and it
is also true that no deed was made by
Shropshire or his agent during his life;
but his legal representative received the
purchase money and applied it for the
benefit of his estate. How stands the
equities between the purchaser of the
land and thosq claiming title under him
and the heirs of the estate ? But for the
money paid by the purchaser for the land
the land would have been taken to pay
the intestate’s debts. Shall the heirs of
the intestate hold and enjoy the land
without paying back to the purchaser of
it the amount he paid, and which was ap
plied to the payment of the intestate’s
debts to enable them to enjoy it ? Shall
the heirs of the. intestate have the land
and the money paid by the purchaser of
it without refunding to him the money
paid for their benefit ? If there is any
equity or justice in that, we are unable j
to see it,
the sale Of lands, or any interest in or
concerning them must "be in writing,
signed by the party to be charged there
with, or by some person by him lawfully
authorized.” But the statute of frauds
does not extend to cases where the con
tract has beon fully executed, or where
fhere has been performance on one side,
accepted by tho other, in accordance with
the contract. Code, sections 1940,1941.
The parol contract in this case for the
sale of fhe land was made by Shropshire
through his agent, Stevens; the purchase
money for tho land was paid by Hults
and accepted by Shropshire, agent for
him. There was a performance on one
side and an acceptance by the other, in
accordance with the contract, and it
would be a fraud on Hults and those
claiming under him not.to compel a spe
cific performance of the contract, .which
the jury, by their verdict, have done in
this case. The verdict of the jury is in
accordance with the well established
principles by which courts of equity are
governed, in decreeing the specific per
formance of parol contracts within the
statute of frauds. We therefore affirm
the verdict of the jury, aud reverse the
decree made by .the Chancellor upon
that verdict, and award the following
judgment in this case:
It is considered, ordered and adjudged
by the Court that the special verdict
rendered in this case be affirmed, and
that the decree made thereon, signed by
the Chancellor, as set forth in the record,
be reversed, vacated and set aside, and
that the Chancellor do make and sign
the following decree upon said verdict:
The jury, in the. above stated case, after
bearing the evidence submitted to them
under the pleadings set forth in the
record, returned the following special
verdict: “We, the jury, find for the plain
tiffs tho premises, together with fourteen
hundred and fifty-two dollars for rents;
and find for the defendants five thousand
dollars, and interest on the ssme from
the 18th of November, 1862, to date, and
in addition thereto the sum of twelve
hundred dollars, and interest on that
amount from the 27th July, 1864, for
improvements, and plaintiffs to pay the
cost of suit. This27th July, 1871.
Eben Hillyer, Foreman.
It is, therefore,' ordered and decreed
by the Court that the plaintiffs do have
and recover the premises described in the
record on the payment of the sum of
five thousand dollars with interest on the
same from the 18th day of November,
1862, up to the 27th day of July, 1871,
to the defendant, within sixty days after
the date of this decree, and the sum of
twelve hundred dollars together with the
interest on that amount from the 27th
day of July, 1868, up to the 29th day of
July, 1871, for improvements, be set off
against the sum of fourteen hundred and
fifty dollars found for the plaintiffs for
rents, and that the plaintiffs do pay the
costs of suit to b.e taxed as required by
law.
Alexander & Wright, Smith & Bran
ham, Dunlap Scott, for plaintiff in error;
Wright & Featherston, Underwood & Ro
well, contra.
R. I. G. Blake vs. J. B. Camp. Attach
ment and illegality, from Floyd.
McCAY, J.
Where an attachment was sued out, re
turnable by law to 1120th district, G. M.,
and the bond, so vested by the magis
trate, by mistake, made the attachment
returnable to the 919th district, G. M.:
Held, That if the levying officer, in
factj returned the papers to the proper
district, to-wit: the 1120th, and judg
ment was then entered upon the attach
ment, the judgment was not void, and an
affidavit of illegality, setting up these
facts, was properly overruled. Judg
ment affirmed.
Wright & Alexander for plaintiff in
error; W. B. Terhune, by Wright '&
Featherston, contra.
John D. Collins vs. E. H. Richardson,
et al. Deceit, from Polk.
McCAY, J.*
It is unnecessary to file the affidavit of
taxes paid, as required by the Act of Oc
tober 15,1870, in an action for false rep
resentations of the solvency of one whom
the plaintiff was thereby induced to
credit, and in consequence it-was alleged
the plaintiff had‘lost his debt. Judg
ment affirmed.
E. Ni Broyles for plaintiff in error; J,
F. Thompson, by J. W. H. Underwood,
contra.
Cohen and Hargrove vs. Rome Railroad
Company. Ejectment, from Floyd,
McCAY, J.
The verdict in this case is not only not
contrary to the testimony, but is the only
verdict which, under the evidence, the
jury ought to have found. Judgment
affirmed.
Underwood & Rowell, C. D. Forsyth,
for plaintiff in error; Printup & Foucho,
contra.
N. J. Byard, et al., vs. M. Hargroves, et
al., Ejectment from Floyd.
McCAY, J.
When the owner of a tract of land
lays it off for a town, publishes a map of
the lots, streets and lanes, and sells out
the lots on a street to others, and the
town is established, as designated in the
map, the owner of the land will be pre
sumed to have dedicated the streets and
lanes to the public, and if one of them
be diverted from the purposes desig
nated, as if under a sale from the'city
authorities, a house be builded on land
that is a part of the street, this does not
authorize the original owner of the tract
to sue in ejectment for the land so built
upon. The title oi the land is in the
public, for the uses designated, so long
as the town exists. If the street be
abandoned by the public, prima facie, the
mersion would be in the owners of the
abutting lots, unless the injured grantor
had in express terms reserved the right
to himsell in his deed conveying the lots,
or in his act of dedication. Judgment
reversed.
Smith & Branham, for Bayard, et al.;
Underwood Sc Rowell, D. R. Mitchell,
and Wright & Featherston, contra.
it is returnable to the next regular term
of tho Court from which the execution
issued, and not to an adjourned session
of the same term.
If the sheriff makes his return to each
adjourned session, and the clerk enter
the case on the docket, it i3 error in the
Coart to call tlie case up, and dismiss it
at that term. Judgment reversed. *
Alexander & Wright for plaintiff in
error; Underwood & Rowell, contra.
Hollingsworth Sc Moraque vs. The Ger
mania, Niagara, Hanover and Republic
Fire Insurance Companies. Com
plaint, from Floyd.
MONTGOMERY, J.
1. An Insurance Company which re
serves to itself the right to cancel its
policie upon return oi the unearned
premium, must pay or teuder such pre
mium to the assured before it can relieve
itself of liability on tho policy. Notice
of its intention to cancel, with mere an
nouncement of jts readiness to pay, is
insufficient.
2. Surrender of the policy for cancel
lation prior to the loss, and subsequent
payment of the unearned premium to the
assured, and acceptance by him, after
destruction of the property insured, both
parties being ignorant of the loss, will
not release the company from liability.
Judgment reversed. "
Printup & Fouche, Underwood & Row
ell, for plaintiff iu error; Smith & Bran
ham, contra.
Thomas Blackman vs. E. W. Clements,
Deputy Sheriff. Rule, from Polk.
MONTGOMERY, J.
That a third person, not the d^fendantt
has taken a homestead on land, againsl
which a mortgage fi. fa. has issued,*wil,
not excuse the Sheriff from failing to sell,
when such fi. fa. is placed in his hands
for levy and sale; and where besets up
such fact as his only excuse, in answer
to a rule to show cause why he should
not be compelled to pay the amount of
the JLfa. to the plaintiff', a rule absolute
will be granted against him for the value
of the land, if such value be less than the
amount of they?, fa., otherwise, for the
amount of the execution. Judgment re
versed.
Alexander & Wright for plaintiff in
error; Blance, Dodd & King, by J. W.
Underwood, contra.
W. P. & F. N. Chisolm vs. E. H. Muse,
defendant iuy?. fa., and S. B. Chitten
den & Co., claimants. Claim, from
Fulton.
MONTGOMERY, J.
1. A mortgage of a stock of goods un
der section 1944 of Irwin’s Code cannot,
by subsequent purchase and addition of
new goods to such stock, be made to cov
er an amount greater in value than the
original stock mortgaged.
2. A levy of a mortgage fi.fa. on per
sonal property, more than sufficient in
value to pay it off, is prima facie a satis
faction. The fact that a large portion of
such property was applied by plaintiff
aud defendant iu fi. fa., by way of com
promise of the claims of other creditors
of defendant, will not affect the right of
contesting creditors, or claimants to have
tkeJL/a, credited, so far as their rights
are concerned with tho value of all the
property levied on,
3. Such contesting creditors and clai
mants are entitled to have the fi. fa.
credited with the value of the property
at the time of levy. Subsequent depre
ciation, arising from unskillful handling
of the goods, (by parties other than tho
contesting creditors or claimants,) while
under the control of the Sheriff or
plaintiff, should not be deducted from
the amount to bo credited on they?, fa.
4. Under the usual issue formed in a
claim case, it is not competent for the
plaintiff in fi.fa. to have an accounting
between the claimant and the defendant
fi. fa., and to have the verdict eo
moulded as to subject to his debt any
amount, Which might be found in the
hands of the claimant, belonging to the
defendant; even where such sum may
have been paid by defendant to claim
ant in part payment for an amount of
goods, (a part of which are the subject
matter of controversy,) which had been
sold by claimant to defendant, but which,
sale claimant had elected to re
scind, because of false representations
by defendant at time of sale; espetially
when the claimant, on his election to re
scind the contract, tendered the money
received by him to defendant in fi.fa.,
and which the latter refused. If the
plaintiff desires to have such amount
subjected to his execution, he must so
frame his pleadings as to put the claim
ant upon notice.
5; False representations made by de
fendant in fi. fa. to claimant, in reference
to his peculiar condition, to induoe
claimant to sell iiim the goods in contro
versy on credit, are admissible, on the
trial of the claim case, to show the con
tract of sale void on account of misrepre
sentation of a material fact.
6. Where claimants were deceived by
such misrepresentation, and give credit
to the defendant in fi. fa. on the faith of
it, that vitiates the sale, if they elect so
to do.
7. If the defendant in fi. fa. obtained
possession of the goods under such cir-
cumsances, and adds them to a stock of
goods already mortgaged, the lien of the
mortgage will not attach to such goods to
the exclusion of tho claim of the seller,
who elects to rescind the contract of sale,
no new consideration having passed from
the mortgagee to the mortgagor at the
time of such addition to the mortgaged
stock.
8. The verdict in this ease is not con
trary to law, evidence, or the weight of
evidence. Judgment affirmed.
L. J. Gartrell, Henry Jackson Sc Bro.,
for plaintiff in error; Hillyer Sc Bro.,
contra.
Loyd Beall vs. Wm. Bailey. Illegality,
from Floyd.
{McCAY, J.
| When an affidavit of illegality, with
j the usual bond, is delivered to the sheriff,
Cotton. Jat Interior^ Towns.
The Columbus Sun of Tuesday has the
following table showing the receipts of
cotton from Sept., ’71, to March 22, ’72,
at some of the important interior towns:
1S70-1 1871-2.
Augusta .170.703 134.20*
Macon 94,332 54,253
Eufaula 30 352 20.820
Columbus 03,718 37,085
Montgomery S7.190 50,501
Selma 79,940 55,397
2/empbis 429,532 333,154
Nashville ....••.••■•• 84,710 52,117
Total 1,051,783 737,294
This shows a deficit of this year from
the last of 314,439 bales. The stocks on
March 22d were 78,731 against 101,2G3
same date 1871, showing a deficit of 22,-
529, which added to the deficit in the
port receipts SG3,740, makes the United
States crop in sight last Friday SSS,269
bales less than the one of last year to
same date.