Newspaper Page Text
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Vol. Ill—3STO 3*7.
THE ATLANTA SUN I
I
From Tin* Dally Nnn orjaimarj 20.187S
_ — ——————~
1’ERSOttAL and general.
No g'ndenta ore nilmitted to Yale
College under A/teen year* of »ge.
Maritime Sc ools are to he estab-
lUb*d*»t all tlio *t* porta in Ramil.
jj, lt curious misprint ii New Y >rk
j ap r recently healed on® of it* column* “Stale
Jieta"
— The two hundredth anniversary ot
the death of MoUere. the great French dramatist, is
lobe celebrated In ParU next mouth.
.There are six i romin* nr ein<'id Ars
for the Republican nomluatlon for Governor in
Connecticut.
i’ w< > years’residmef* will be rr-ws-
aary in Indiana by the prop «f,l chang. in the las,
baf're a disorce can be olitai jod.
A'imir* rs -i Nap' * uiuNewYork,
who b»*«* ii<> mou*r#* Maul to wax their ejt-
brow* after the Napoleon etyle.
—Mrs. King, au old lady o\er <■ x y
jeers <*f age, t «.ujXJ-ittecl «r.tci«le by hanging u:
^et-Qe eouut> ( J'a.. rse ntiy.
— ACui-iig Aid flirt 11 }»refi*r> $1,000
psr ennuni (<» tt>» liunur aiid g»«>rj aitaclied to hia
ysiitioiit ai.d ^hu L<*gi».slur<- v% i.i btt asked to accoiu*
liiOdSW b.Mi.
— A N«-w * % %rvt\4 r • is :& ur&t*.
of $3*0, 0 for a njjrnfon aim U rmer who w rk» d cm
his farui • **’ >urn lit r. but li > tract* of ili« desired
recipient of iUim midden t>»uin tan be louml
- Xhfe i.. r • t* 1C1 CiiHMgo i.iht \rur
wta J7.66 per l.HK), being tbe largest for seventeen
years 'ih»* wit if iiQiub«r of utstli• wa* 10,167, be*
ing nearly 4,Goo mort- tb*>. .a.-t year.
—A h«>u «>l t*x-S» cr# t..ry Wdlcfi, cl
Hertford, Conn , *** rec* nuy married to '4ms Sue
Hall of Heading. Pa , a toe Utt r place. Mr. Wallet
Is a prosperous Uwj«r.
*Mr». ll.w v Mi lit r o> 1 > unrovt , Pa.,
didn't brow tl >wei» avound l«»r Oeorgo V.***hing-
tou’s horse to step ou, out she r »*ie a long distance
on hor eback to attend his fun- rsl
— Fttthrr Flint, aft • ».*. man ( t 70 ouu
years, living near liillrtdal<*. Mich, and a prominent
member of the Cougregationalist church has been
arrested for having two wives extra
— T e Mayor of Wyandotte. Michi
gan. who elopod from there atvi-ril mouths a«o with
■ young lotiy, returnM recently, ami attempted
to SMSutue his old office. tie *as however, com*
priUd to resign.
— Kitty, »g«*tl (. r. t* years, was trying
tc think <> i pl< inin auipriHe lor her fatln r on hia
birthday, at la*t .he cried: “1 know, mamma—X
know 1“ " Wbai, my i!«ai ?“ “ Uuy me a httle
•Inter without aayiug anyiUiup to papal”
— A lu.ly run a any trout Iter Lome 111
Ontario, Canatl., la.t December, hiking with her
$Uc,00(i in gold ami bonds, She waa arrested in au-
burn, N. Y., taut wen*, and a reward of $1,000 which
bad been offered by her husband lor her arrest, paid
to the fornicate captor.
— Tin- Calcutta Engin-hutui of JL)c-
reniber 1 th coiitaina a report that the ltun.iann had
been defeated sub great to., by the Urgauj pt opie,
nl i<-» of iho Kbivans, and that the whole attuek on
Khiva ban complete y failed I this be .rue, there
I, nnme reason tor Uus-ia to aeelc EngJiah co-opera-
hou in the matter ut nettling the Khivau ntatus.
— L)r. Felix Arabim* de l'oucbet, uu
eminent naturalirt, wlio a- qu.rcd great distinction
by h.H wriiingn and reaearehev on ■ lie subject of
spontaneous generation, died in Farm, recently, at
the age of 7J .tears, lie was at cine time X'rclesHor
of Satural niab ry at tin Muaonm in l'aris, slid ill
18 H was appointed Professor in tho School of Medi
cine nt Mullen.
»-W-4
DENIED THE PA I Til.
We regret to un |, Mountain Home,
jin:disked at Tailed ega, Alabama, has
abandon. tl the Democratic party and
gi tic ovi-r to the Republicans. Mosers.
II. A. Moseley ami Edward Bailey are its
editors. Wo oid uot think our friend
Mofidy would have < voi turned uis bacK
upon flit' faith of his fathers by : buu-
douing tho true principles of free gov
ernment as represented by a true De-
tnoeracy. We part with the Mountain
Horn* more in sorrow for its sad change
of heart than for the influence it wielded.
THB ATLANTA WEEKLY SUKr-FBBRUARY^4, LQtoT
THE GRIFFIN STAR.
Tins payer Inns had somo very severe
stricture.a upon Mr. Stephens, which We
Lave all iuong deemed unworthy ef no
tice. In its issue of yesterday the senior
editor repudiated au article in a previous
number regarding Mr. Stephens’ candi
dacy for Cougrcss.
Tho senior editor closes his apologyby
expressing tho belief that Mr. Stephens
is the very m-m for tho place. “Besides,”
says the Star, “he is a grand old raan,
* * * and the whole State can well
afford to be proud of Lis vast talent and
brilliant reputation.”
JfiC. STEPHENS.
Tho following in regard to Mr Steph
ens for Congress is from the Americas
Republican :
The country needs the services of such men in
Congress as Mr. Stephens. lie is not s mere politl-
clsu, but s statesman of the most profound wisdom,
with a mind stored witb lnwrrledge and capable of
divining coming politiial events. Upon the floor of
the House bis quick mind will enable him to grasp
at every movement of political tricksters and expose
duplicity in every form. His clear, ringing clarioa
Voice will be listened to attentively by bis strongest
opponents and unscroupulous foes; and no man from
ibe douth will claim more of national attention and
•onsideration, than Mr. Stephens. Georgians can
never forget his past services, and la their hearts
bs will ever be enshrined.
StF* The N bw Oilcans Times has re
sumed publication and says that, freed
from all entangling alliances, and with
abundant resources at command, it can
now servo the interests and solicit the
favors of a generous public with a confi
dent assur&nca of success. Mrs. W. H.
O. King, the widow of the founder of
the Times, is the proprietor; M. F. Big-
ney, editor, and Henry Oreen, business
manager.
' It is onr intention hereafter to
give to onr readers daily the gist of the
leading articles of onr fitat* -
nee upon the political and pnbb>* <•
tions of the day. We may m.i * •
todosoevsry day, bat will e*rrv . .
new feature in Atlanta journalism a» •*<
we can.
MR. STEPHENS IN INDIANA.
The Terra Haute Journal regrets ex
ceedingly to hear of the defeat of Hon.
Alexander H. Stephens for the United
States Senatorship from Georgia. It
■ays that Mr. Stephens is one of those
great and pare men of the South in
whom the genuine Democracy, and, in
fact, the entire people of the North., have
implicit confidence. It appears that the
great State of Georgia is not yet in a
condition to choose its ablest and safest
counsellors to represent its interests in
th highest deliberative body of the
Ui ion. The error is the loss ot the
Georgia people, as they will find in dee
courte of time.
SPIRIT OF THE GE/IRGIA PRESS.
The Columbus Sun has an article on
th° subject of “Immigration.” It says
“capital and labor came hand in hand
and on all-fonrs.” “How to attract these
two Siamese twins to Georgia,” it lias no
donbt “wil 1 . command the early end con
stant abilities of ihe Legislature.” The
Sun off r-i this as an inducement for im-
m grat’on:
Vit.lity must bo given to education generally,
and especially to a g >od system ot public schools.
Even better wages * ill not ie, uc- a p .or, yet skill-
fnl and iutelbg ut iu-c ante and fi-ld laborer ir' m
Europe to ee ti< where his children cannot be edu
cated. A syst m ot puo'ac schools will act as feeders
to our Academies an . Universit.'-g juntas number
less rivul. ‘g cr. ate n.itht) rivers beari’-gthe wealth
of c ntineuls ou tl < ir b sum, and gca.tering m ral,
mental an 1 ruat-ri.l riches and fertility wherever
they wash and spread.
Tho bnvaij'. h Meics, discussing thr-
evil<of too fl*qU' Ut changes of school
iKMiks, makes taes • very seDstbla re-
rn'irk.i:
The eipi ti-es of c.luctt.ng children are very ma
terially inc/eas-d by lb- constantly recurring neces-
sry for the pnrehaw* of new school books, and we
th.nk it would be . iiheuitto entablish the fact that
the lncieased co.t 1- compensated f.r by the supe
riority of lb book3 which are substituted for the
old one,. *A1 ii- a w divcovt nes iu sci-nce render
necessary new comp cation* . f t>xt b >cks in the
h gher branchOi of the academic course, it would
seem that tbore is vi ry l.ttle rot m at present for
improvement of our elementary text books, and a
restriction tk»t will prevent the necessity of a new
set of books i very few m untie, at .east in our pri
mary bools wuuil result i a great saving to pa
rents without detriment to pupils.
Iu a lengthy e.:iu>rml in regard to tke
bill to encourage direct trade, and an
ther to cr>aiea a bureau of immigra-
gration, which two biiis the Savannah
Repub!ic.v. denominares twin measure-,
tor the geU’ rai ^iro.-pei-ity of Georgia,
tout pai er ur^,s Uie pn^eage of the two
without ni:» ration, and closes as follows:
The arguments drawn lrom the failure of pre
vious effo- ts in ibu same direction, are fallacious
ami inapplicable now, sinm the conditions, the
times and the opportunity are so widely dissimilar
as to render any para.lei absurd. While the whole
country and ‘be entire people are taking a new de
parture all arouud us, will Georgia constitute her
self the Kip Van Winkle of the South, and awake
only to see the Ciiect trade and immigration she
DKghtbvve s>-cund e. riching her wide-awake sis
ters—Virginia on the one hand a nd Texas on the
other?
Iu aiiuouig to the great miuoral re-
Rourccs of G’orgia, and particularly of
the iron inter st, the Romo Courier
makes the >t r. murks on the iron pros
pects its r> gams pi let s:
The year 1871 opened witb a dull market and de
pressed price*, induced by the unsettled slate of
trade growing out of the Franco-Prussiau war.
With the cloi-o of that war and th* reaction of trade,
prices began to advance, an l rapidly i use to the re
munerative prices. This advance was m l, however,
due to the reaction of trade, but was superinduced
by the increased demand for ii on, growing out of
the new anu varied use* to which it waa daily being
applied. These applications are continually being
made, and although the climax of prices may have
been reached last September, and a temporary re-
Wuetion followed, y< t so long as this d.-mand is
kept up, thor can he no danger oi a return to
former low prices- Indeed, the rt bound has already
reached its m.niinuui, and prices are now steady
with an upward tendency.
Tue Alliths Watchman has this to say
oi “standing” for Congress, of coarse
Aspired by tho posh ion low occupied
by Mr. Stephens ns cuuuidute from his
District:
We confess to a strong inclination in favor of the
plan proposed in tho Eighth District, rather than
trusting to a packed Convention. “Standing for
Parliament” means something. A gentleman with
out merit and without strength, cannot venture to
“stand.” Such persons need tho trickery and chi
canery of a Convention. Anybody who is unscrup
ulous iu the uso of means may secure a nomination,
whether he puss sees a single qualification. But a
man who can “etand” on trs own merits is generally
worthy of the confidence of the people. The wortni.
est man in the District may bo defeated in Conv en-
tion by any contemptible trickster—while, if the
question were submitted to tho voters of the Dis
trict he would distance all competition.
The Griflir. News animadverts strongly
upon tho tendency to too much legisla-
tiou, aud condemns in pungent language
the introduction of too many trivial bills
during tho present Legislature, It says:
Legislators should be impressed with the idea,
that wo need only a few good and wholesome laws,
and tho fewer of those the better. It is made the
duty of the people to know what the laws are, but
how con it be expected that they can keep posted,
when every Legislature changes the laws in force
and encumbers our statute books with new ones. It
would take three of the best lawyers In the State to
properly codify the statutes, and then there would
be endless litigation as to their proper construction.
From the Augusta (Go.) Chronicle aud Sentinel.
A PROCLAMATION.
Georgia—By James M. Smith, Gov
ernor of said State:
Whereas, A vacancy, caused by the
death of the Hon. A. R. Wright, elected
in and by the Eighth Congressional Dis
trict to the Forty-third Congress of the
United States, existed;
Now, therefore, I have thought it proper
to issue this, my Proclamation, ordering
that the polls be opened, and an election
be held on the 2Gtn day of February next,
in the oounties of Columbia, Elbsri,
Glascock, Greene, Hanoook, Hart, Jeffer
son, Johnson, Linooln, McDuffie, Ogle
thorpe, Richmond, Taliaferro, Warren,
Washington and Wilkes, in accordance
with the roles and regulations prescribed
for holding elections for members of the
General Assembly, at the same places
♦tint the Governor and members of the
■ si .ummi my are elected, for one
rotative in the Forty-third Con-
- if the United States, to fill the
>r which the Hon. A. R. Wright,
<■ f- .aed, was elected.
) Given under my hand and the
n, a. V great seal of the State at the
—v— j Capitol, in Atlanta, the twenty-
fourth day of January, in the
J ear A. D. 1873, of the Indepen-
enoe of the United States the
ninety-seventh.
By the Governor, James M. Smith.
N. O. Baunktt, Secretary of State.
The following papers will please copy
until day of election: Daily Constitu
tionalist, Warren ton Clipper, News smd
Farmer, Sparta Times and Planter,
Washington Gazette, Elberton Gazette,
Greenesboro Herald, Central Georgian,
Sandersville Herald, and McDuffie Jour
nal.
Dyrid L. Adams, a venerable
cotton merchant of SavannaD, died near
Hamburg, S. 0., on the 23d; a^ed aimut
eighty ytars.
t>trcUioi*« of th*- Supreme Court of
Gcorfiiu.
De.ivered at Atlanta, January 2S, 1873.
From tbe Atlanta Constitution. ^
Ezekiel Brown et al. vs. Wm. T. Crane,
demurrer, from Towns.
WARNER, C. J.
Tbe c unplainaut alleges in his bill,
that on the 16th day of March, 1S64, he
purchased from one Maulden, a certain
descri'Kid tract of land in the county of
Towns, and paid him therefor the sum
of twelve hundred aollars, and took
Mauldeu’s bond to make him a fee sim
ple title to the land so soon as Maulden
got a title to the land from Wyly, whose
Loud for title Maulden held. The com
plainant went inioou.-*.-.-'r-tiiuuof the land,
planted a portion of it :u corn and went
to the State of Terin• leaving a ne
gro woman to cultivate it; iu the month
of December, 1864, the defendant,Brown,
confederating with one Dilles and others,
by threats, etc., induced Maulden, who
was an old man, to sell the land to him,
and assign to him Wyly’s bond for title;
Brown went into the possession
of the land under his pur-
chiiFe from Manlden, with a full
knowledge that the complainant had
ourchased and paid for the land as before
stated, and proenreda deed therefor, to
Himself, from Wyly or his legal repre
sentatives. The prayer of the bill is that
Brown may !>e decreed to execute a title
of the land to the complainant. The
dtfeudant demurred to the complain
ant’s bill for want of equity, which was
overruled oy the court, aud the defend
ant excepted. In our judgment there
was no error in the court below in over
ruling the demurrer to the complainant’s
bill on the statement of facta alleged
therein. The purchase of the land from
Maulden by the defendant in the manner
as charged and set forth in the complain
ants’ bill with fnll knowledge that the
oomplainauta had previously purchased
aud paid for the land, was sucb a trans
action as in equity and good conscience
cannot be sanctioned. The view which
a court of equity will tako of it is to re
gard tho defendant as holding the legal
title to the land in trust for the bene
fit of the complainant who had previ
ously purchased and paid for it, and of
which fact the defendant had full knowl-
e lgo at the time he purchased the land
from Maulden and procured the Lgal
title thereto to himself.
Let the judgment of the court below
be afflimeu.
Wier Boyd, M. L. Smith, for plaintiff
in error.
No appeaiauce lor defendant.
John A. Sims, Sheriff, et al., vs. Thomas
Thornton. Injunction, from Forsyth.
WARNER, C. J.
On tbe 11th of November, 1868,
Thornton made application to the Ordi
nary of Forsyth county for a homestead
is the head of a family. Oojections hav
ing been filed thereto, the application
was transferred by consent of the parties
for trial to the Superior Court. When
the case came on for trial in the Superior
Court, the objection was withdrawn, and
a judgment was awarded to the applicant,
which was made the judgment of the Or
dinary. Afterwards, on the 11th of the
December, 1869, sundry executions from
a Justice’s Court in favor of Hutchins
aguinbt Thornton were levied on the
homestead as liis property, which was
claimed by Thornton, as the head of a
family, as not being subject to be sold in
satisfaction of the executions levied
the reon. The Sheriff declined to receive
and recognize the claim, and Thornton
filed a bill, praying for an injunction to
restrain tho sale of the homestead, which
was granted by the presiding Judge.
Whereupon the defendant excepted. The
defendants in their answers to the com
plainant’s bill, set up in the nature of a
cross bill that the complainant was not
entitled to a homestead as the head of a
family; that he had no family which he
was bound by law to support; that the
court had no jurisdiction to grant him a
homestead, and that the same Lad been
fraudulently procured. It also appeared
that at the time the homestead was
granted tho estute of Hutchins,
the plaintiff in the executions,
had no representative who could
have made objections to the granting oi
the same. There were several affidavits
tiled going to show that Thornton was
not entitled to a homestead p.s the head
of a family, though the evidence upon
that question was conflicting. Iu as
much as the estate of Hutchins had no
representative to file objections at the
time the homestead was set apart, Ins
legal representative may now attack the
judgment allowing the homestead, for
fraud, and also may show that the appli
cant was not entitled to it under the law
as against his rights, as such legal repre
sentative of Hutchins’ estate, and the
proper form to do that under tho facts of
this case is in a Court of equity. Iu our
judgment the remedy in a Court of law
would not be as complete aud adequate
as iu a Court of equity, either as it re
gards the rights of the complainant or
the rights of the defendant. We there
fore find no error iu the judgment of the
Court below in granting the injunction
until the case can be folly heard upou its
merits and a final decree rendered in the
cause.
Let the judgment of the Coart below
be affirmed.
H. P. Bell, J. S. Clemeuts, for plain
tiffs in error.
Pope A Brown for defendant
Mary Howell et al. vs. 8. G. and H. W
Howell. Equity, from Gwinnett
WARNER, C. J.
This was a bill filed by the heirs-at-
law of Evan Rowell, to set aside deeds
executed by the said Evan in his life
time, conveying certain lands described
therein to his son, Singleton G. Howell,
on the alleged ground of the want cf suf
ficient mental capacity of said Evan
Howell to execute the same, and on the
farther ground that said deeds were pro
oured to be executed by undue and im
proper influence exercised by the said
Singleton G. over bis father at the time
the deeds were ext-ented. On tbe trial
of the cause, the jury found » verdict foe
the complainants. A motion was madr
for a new trial, which the Court below
granted, whereupon the complainants
excepted. The court ’.'ranted tne n-w
trial ou the ground of errnrm ruling out
certain evidence offer*d by tue defend
ant as specified in the reco-d, and tn«.
question mane ii-ie is, whet tier tne
ing o the new trial was su ti err -r
judgment as this couri, under »n- la
should control and set aside. B\ f
3*.'63 1 section o! tin Cod. it l- <i- -1
that the Snoerii-r Courts mu t*
trials in all cases where,anv material evi
dence may be illegally admitted to, or
or i.legally witiiheld from the jury,
against the demand of the applicant.—
In our judgment, the evidence speci
fied in the record, fourth, fifth, sixth,
seventh, eighth uml ninth grounds
of the motion for a new trial, was
competent evidence to have been sub
mitted to the jury, and the Court beiow
erred at the trial in rejecting it. The
deeds were proved to have been in the
hand-writiDg « f the defendant and the
evidence offered and rejected went to
show that the maker of the deeds knew
wEat he had done and what the deeds
contained. The issue on the trial was
whether Evan Howell had sufficient ca
pacity to execute the deeds aud to con
vey his property, aud did he know the
contents of the deed*; did he know what
1 e had done in executing them to his
i- m Singleton? Tho evidence offered
was admissible to rebut the allegations
of the complainants as to his want of ca
pacity, and that he did not know the
contents of tho needs, the more especially
as the deeds were written by the defend
ant, and were alleged to have been
fraudulently procured by him. But it
was urged on the argument here, that
tho evidence rejected was merely cumu
lative of similar evidence which was ad
mitted, and therefore, the new trial
should not have been granted. This is
undoubtedly true iu regard to the will
which was rejected. The defendant got
the benefit of that, but w hen the evidence
of capacity was as conflicting as in this
case, tho credibility of witnesses was an
important element for the consideration
of the jury, aud the defendant had the
legal right to prove the facts by tne wit
nesses whicn he offered. The testimony
of some witnesses have more weight with
the jury than others who may prove the
same facts.
Whilst it is true that tbe declarations
or admissions of Evan Howell, after the
title to the land had passed out of him
going to defeat that title would not be
admissible in evidence in favor of the
complainants against the defendant, still,
we think the evidence of Mrs. Graham
and Archibald Howell, offered by the
complainants, was admissible in rebuttal
of ttie evidence of the defendant, as it
had a tendency to show that the defend
ant had some influence over his father.
If he had sufficient capacity to execute
the deeds of conveyance, and did exe
cute them, freely and voluntarily, the
fact *hat he afterwards expressed him
self dissatisfied would not be, of itselt,
a sufficient legal ground to set them aside.
This evidence could only be received in
rebuttal of the defendant’s evidence,
which went to prove that the land was
conveyed to him to make him equal with
the ether children, aud as a circumstance
to be considered by the jury for wbat it
was worth : s to the defendant’s influence
over his father. In our judgment the
granting of the new trial in this case, by
the court below, was not such an error
in the exercise of its sound discretion as
will authorise this court to control or re
verse its judgment.
Let the judgment of the court below
be affirmed.
Clark & Pace, Peeples & Howell, J. N.
Glenn, T. M. Peeples, N. L. Hutchins,
for plaintiffs in error.
Winn & Simmons, Hilljer & Brother,
J. J. Floyd, for defendants.
Francis P. Collier, administrator, vs.
Booker Adkins, Sheriff. Rulo vs.
Sheriff', from Oglethorpe.
WARNER, C. J.
A rule was obtained against the Sheriff
oi Oglethorpe qouniy, calling upon him
to show cause why he should not pay to
the plaintiff in a mortgage ff fa issued on
tho foreclosure of a mortgage of a house
and lot in the town oi Lexington, the
money for which the mortgaged prop
erty sold. The Sheriff showed for cause
in writing that he had sold the property
for $569 00, and after deducting costs,
had iu hand $550 0 J, that he had been
notified by the Ordinary of said county
that tho mortgaged premises had been
set apart as a homestead to the defend
ant as tLehead of a family, and required
him to pay the proceeds of said sale over
to him, the Ordinary, the Sheriff attach
ing to his answer a certified copy of tne
judgment and proceeding had before the
Ordinary in relation to the setting apart
the mortgaged premises as a homestead,
and submitted to the juiigm-nt of the
court whether ho should pay the money
to ihe plaintiff in the mortgage fi fa, or
to the Ordinary.
The plaintiff in fi fa demurred to the
answer of the Sheriff as being insufficient
to excuse him from having tho rule made
absolute against him, which demurrer
was overruled by the court, the effect of
which was to discharge the rule against
the Sheriff, but the court, went farther,
and ordered the Sheriff', oy its judgment,
to pay tho money in his hands over to
the Ordinary as a homestead exemption,
whereupon the plaintiff in the mortgage
ii fa excepted. We find no error in the
judgment of the court in not making the
rule aosolute against the Sheriff, as he
was not in contempt ot the process of
the court in not paying over the money
to the plaintiff, under the novel and pe
culiar facts of the case.
It appears from the record that the ap
plication for homestead was filed in the
Ordinary’s office on the 14th December,
1868, and ou the same day the Ordinary
passed an order allowing to the def ndant
the homestead exemption, under the 7th
section of the Homestead Act of 1868, no
notice having been given of tne applica
tion, eitner by published cita ion, or
ollit-rwise, and the question is, whether
the Court below erred in ordering the
money id Court to be takeu from the
plaintiff in the mortgage fi. fa., and paid
over to the Ordinary for tbe benefit of
the homestead, withoat notice to the
plaintiff, and without ins having an op
portunity to contest tne right of the ap
plicant to trir homestead.
We are all of tbe opinion that it was
error in tne court in ordering the money
to be paui over to tUe Ordinary und^r
the facts f this case. T e judgment of
the Ordmarv allowing the homestead dm
not exciU'itoe plaintiff ’u the mort
6 age fi u from contesting tne *ppUcaui’.*
ngni <o the nomeslead exemption upo
ny egal ,mi pr p -r grounds; he migni
have suo»l U.it lie money due on tL»
m rtg^. ti . ii we a -or tne purchas
III- fop-oly, or tlial the up
p i' * I. In .111 O rt O.U1 y, I
. a. I- w.-s If.
li
rnomy j. i* -
r X< '.n-It >n • >
a party, and of which Ue had no notice.
Speaking for myself alone, I should hohl
that the applicant for a homestead ex
emption in all cases under the Constitu
tion and the provisions of tho Act of
1868, should give the notice ns required
by tho 3d section of the Act, as well in
applications under the 7th section, as
tinder any other section of the Act. It
is true, that section does not, in * xpre^s
term:-, requiie notice to be given, but it
is an application for a homestead exemp
tion under the Constitution, and the ouly
reason why the proceeds of the sale of
town property is to be exempted, fs be
cause it cannot be divided so as to give a
homestead of tho value of two thousand
dollars in specie, but it is nevertheless a
homestead exemption, and there may be
as much fraud practiced upou creditors
in procuring a homestead exemption iu
town property, as in any other
species of property, and there
fore, there is the same reason
why notice of the application should be
published; construing the whole Act to
gether, that, in my judgment, is the
proper construction to be given to appli
cations for a homestead exemption of
town property under the 7th section. It
is an application for a homestead exemp
tion under the provisions of tbe Consti
tution, and the applicants secures the
proceeds of the property sold, instead of
tho property sold—that is the only dif
ference between a homestead exemption
out of town property aud other property.
What good reason can be given why the
applicant should not give notice to his
creditors when he claims a homestead in
town property as well as in any other
property?
Let the judgment of the court below
bo reversed.
R. Toombs, S. H. Hardeman, for plain
tiff in error.
J. D. Mathews, for defendant.
Joel Hall, et al., vs. Aaron English. In
junction, from Warren.
WARNER, C. J.
This was a bill filed by tne complaiu-
ant for a new trial, and praying for an
injunction. The injunction was granted,
the defendant answered the bill aud made
a motion to dissolve it; the court over
ruled the motion to dissolve tne injunc
tion, but modified it so as to meet the
exigencies ol the case in the exercise of
the discretion vested in it by law. To
this ruling of the court, the defendant
excepted. The complainant’s absence
from the court for piovidential cause at
the trial is conceded, but it is said there
is no merit in his application for a new
trial, and that he has an adequate remedy
at law.
It appears from the record, that Hall
obtained a mortgage from Wolfe on a
lot in the town of Warrentou tt secure
the payment of a debt due by Wolfe to
Hall which had been duly recorded, fore
closed, and execution levied on the lot
as Wolfe’s property, which was claimed
by English, the complaiutaut, as his
pro; erty. Hall filed a bill to set aside
English’s deed under which he claimed
title to the lot, and which was the founda
tion of the claim interposeu by him to
prevent tho sale of the lot as Wolfe’s
property. At the lust term of Warren
Superior Court the equity cause was
called and a decree rendered, setting
aside the deed ot English, and directing
the_ same to be cancelled. The com
plainant alleges that he was prevented
from attending the court by a .Providen
tial cause, and thereby prevented from
making his defense as lie otherwise
would have done; that Wolfe, Hall’s
mortgager, had no title to the lot, but
simply a bond for titles, from Roberts,
from whom he purchased, conditioned
to make title when the purchase money
was paid; that Wolfe neyer paid any part
of the purchase money for the lot; that
after the purchase money became due,
English, the complainant, purchased the
lot from Roberts who had the legal title
thereto, which was conveyed by the deed
of Roberts, to him, and this was the
deed which the decree of the Court can
celled.
It appears from the affidavit of Hills-
man who made the deed to the lot, under
a power of attorney from Roberts to
English, the complainant, that he, Eng
lish, produced Roberts’ bond to Wolfe,
without any transfer of the same by Wolfe
to him, paid Wolfe’s note, and he made
a deed for the lot to English; that when
Wolfe purchased the lot from Roberts it
was a vacant lot. Wolfe built a house on
it with lumber purchased from Hall, the
payment for which the mortgage was
given by Wolfe to Hall to secure; that
English, at the time he took the deed,
knew of Hall’s mortgage to secure the
payment of the lumber of which the
house was built, said that he thought by
purchasing the house and lot he could
save something (as Wolfe was indebted
to him) by paying mortgage claim and
original cost for vacant lot. What may
be the equities of the respective parties
to this property must necessarily
depend upon the facts which may
be proved on the trial of the
cause, and it is right and proper that the
same should be definitely settled by the
decree of the court before the property
is sold, so that the property may bring
its full value, and that tne purchaser may
know what he purchases at the sale. A
court of equity having obtained a juris
diction of the cause will retain it so as
to make a final decree as to the respec
tive rights and equities of the parties,
aud uot turn them round to litigate in a
court oi law where the remedy, in our
judgment, would uot be as adequate and
complete as in the court where they now
are; bnt conceding that the complainant’s
remedy in a court ot law and a court of
oi equity is concurrent, the court first
taking jurisdiction of the case will re
tain it. Code 3041. In view of the facts
ot this case as disclosed in the record,
there was no eirorin the judgment of the
court iu granting the injunction which
#iu authorize this court to interfere and
control that judgment by reversing it.
Let the judgment of the court below
e affirmed.
Robert Toombs, for plaintiff in error.
E. H. Pottle, for defendant.
Gi * Council of Augusta vs. the National
Ba-k ol Augusta, et al. Injunction
ir- ui Richmond.
»V ABNER, C. J.
i.L.is w.is u ball filed by the National
oi k of Augusta, and the Planters’ Loan
OiiVings Bank, aga.nst the CV./ Coun
it ‘ i Augusta, pra} ng lor an injunction
■ ii sii-m tne Ueienuauts from collecting
tax it vied on Uie suares ot stocit held
.i.u owned by the respective shareholders
.. tiie atoi esoid banks, located iu the city
AitgUsta, ot the ground that the tax
levied was illegal, iu this, that the
-1 s ot the “csptciive hlOCkhi.lil-.rs 111
B
when bonds and notes, aud other mon
eyed capital, was only taxed one-fourth
of one per cent. The Court granted the
injunction restraining the defendants
• rom collecting the tax imposed exc ed»
ing one-fourth of one per cent., where-
uupo the defendants excepted. The
complainants also excepted, because the
Court held that they were liable to l>o
taxed at all under the city ordinance of
30th December, 1871, and that the shares
of the stockholders in the National Bank,
especially, conla not b e taxed under the
city ordinance without special authority
for that purpose had been delegated by
the State to the municipal corporation ox
the oitv. Iu regml to the exceptions
takeu by the complainants to the ruling
of the Court, we find no error.
The City Council of Augusta havo un
questionably the general power and au
thority as has been repeatedly ruled by
‘his c nrt, to levy and collect a tax n{ on
ail species of property within its corpo
rate limits subject to taxation by the
general laws ol the State, and no special
power or authority was required from the
State to enable the city authorities to
levy and collect all legal taxes upon the
shares of the stockholders in the respec
tive banks specified iu the record. Fred
erick vs. the City Council of Augusta,
5th Georgia Reports, 561; Pearce^
Wheeles <fc Co. vs. the City Couucil of
Augusta, 37th Georgia Reports, 597.
The main question in this case, involves
the construction of tho 27th paragraph
of the 1st. article of the Constitution of
1868, which declares, “that taxrftion on
property shall be ad ralorem only, and
uniform ou all species of property taxed.”
This is now the fundamental law of tho
State in regard to the taxation of prop
erty, either by the State authorities or
municipal corporations, and the courts
are bound to enforce it, not onlybecaua*
it is right in principle, bnt because it is
the law. Thera can be no discrimina
tion in favor of any one species of prop
erty which is taxt d over any other species
of property taxed, but the *ax imposed
must be ad valorem only, and uniform
ou all species of property taxed. It nec
essarily follows, therefore, that the tax
to be levied upon the shares of the stock
holders in the respective banks men
tioned in the record by the Oiiy Council
of Augusta must be*tne same as that
levied upon other property—that is to
say, the tax ou all species of property
must be the same in order to m ike it
uniform, as required by the Constitu
tion. A tax o* one per cent, on the
shares of the stockhol lers in the respec
tive banks in the record mentioned, and
a tax of one-fourth of one per cent, upon
other capital, or other property taxed, is
not a uniform tax within the true intent
aud meaning of the Constitution.
Ail species ot property, when taxed,
must be taxed uniformly, ami ad vilorem
only. Why should the honestly ac
quired earnings of one man, when law
fully invested in bank stock, be taxed as
property at a higher rate of taxation
than the honestly acquired “iivnings of
another man who has invested tho pro
ceeds of his labor in bonds, notes, land,
or auy other species of taxable property,
erty, equality is equity, and when
all species of taxable property
shall be taxed according to its value, at
an uniform rate, then’the necessary bur
den of taxation for the support and
maintenance of either the State govern
ment or municipal government of cities,
will operate equitably and justly upon
all. One of the great evils of the day is
the extravagant expenditure of money
on the part of the State, municipal cor
porations and county organizations, and
the laying extraordinary taxes on the
property of the people to pay it. The
people have not as much prop rty as they
once had to be taxed, and the sooner that
fact is realized and acted on the better it
will be for the welfare and prosper! ;y of
them. Excessive taxation is an insidious
but certain process for the exh ustion of
the substance of any people, and we are
not disposed to encourage it when to do
so would be to violate the fundamental
law of the State.
Let the judgment of the court below
be affirmed.
A. R. Wright, W. H. Hull, for plain
tiffs in error.
Frank H. Miller for defendant.
Jacob Johnson vs. Heiry Lowry. At
tachment, from Fannin.
McCAY, J.
Where one is not a resident of this
State, but is passing through the same
with his goods, an attachment may issue
against him, on the ground t-Lat “he is
actually removing out of the county” in
which lie may then be found.
Judgment reversed.
J. A. Jervis, H. P. Bell, for plaintiff
in error.
M. L. Smith, C. J. Welborn, Thomas
F. Greer, for defendant.
Benjamin W. Heard,’ et al., vs. George
Donner, et al, Homestead from Ogle
thorpe.
MoOAY, J.
1. The homestead provision of the
Constitution of 1868 is intended to se
cure from the property of the head of a
family a provision for tbe support of the
family, which at the time consisted of
his wife only, and the husband and wife
both die, leaving no family but adult
children, the homestead reverts to the
estate of the husband, and is subject to
debts as other property.
The seventh section of the Act of 1883
is to be construed in the light of the
Constitution and general scope of the
Homestead Act, and the words therein
used, to-w’t: “On her death or inter
marriage to be equally divided between
the children of the former marriage,” are
not to be understood as excluding th*
homestead on the death or intermarriage
of the wi e from remaining to the nse of
any portion of the family st J1 remaining,
or if no family remain, from the debts
of the person out of whose estate it waa
taken.
Judgment reversed.
R. Toombs, 8. H. Hardeman for
plaintiff in error.
Wm. M. Rce.-c. contra.
The new Archbishop Bay ley talks thus
manfully: “Areal lLspectien of liquors
would destroy two-tnirds of. intemper
ance. Any real good government shohld
nforceisuc.i an inspection, or stop tne
salt a together; * ecauso the objeet of
government' n> to protect the lives of
citizens, ami while it enforces stringent
1. ws against the ssle of decayed vegeta
bles. it is far more important that it
sUould binder the sale of drinks
I'cisou im- tiL.noini? madde