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l .«gawww>v; tj jurffonTfiwnna
THE TELEGRAPH,
MACON, FRIDAY, JANUARY 31, 180-.
TUB MeOABDliB CASK.
As this case has (resumed a national impor
tance, a review of tbo facts and circum
stances concerning it will be interesting.
Not many months ago, Gea. Orri,.military
ruler of Mississippi, arrested W. H. McCar-
dle, editor of tko Vicksburg Sun & Times,
and caused him to bo brought be lore a mili
tary commission, qpon the following charges
and specifications^
Chargo I—Diaturbenco of the puUicperxe.
Specification—Defamation of tiie-cluimcN r
of General Ord, and denunciation of despot
ism and usurpation •ofauthority.
Chargo II—Inciting to a breach of the
pcacei
Spodfication—Colonel McCord le, in an ar
ticle published in bis paper, said that if Gen.
Ord removed Humphreys and appointed Mr.
Burwcll in his stead, that Governor Hum
plireys would refuso to surrender the State
archives to Ord’s appointee. That probably
General Ord would torco him from liia offiee
by the bayonet; and then a higher tribunal
than Governor Humphreys, or "Satrap Ord,”
would decide wbetber Mississippi was a Pc
land and Ord her autocrat.
Charge III—Libel.
Specification—Defaming the character of
one Captain -Platt, of the Freedman’s Bureau.
Charge IV—Impeding Reconstruction.
Specification—Advising voters to remain
away from the polls.
McC&rdlc having been taken in custody sy
the Military Commission, application wts,
made to Judgo Hill, the United States Dis
trict Court Judge for the District of Missis
sippi, who issued a habeas corpus, and the
prisoner was brought before him. The
Judge delivered quite an elaborate opinion,
that thero was no judicial tribunal in Hie
State, not subject to Gen. Ord, having cogni
zance of the offences charged against i’.c-
Cardle; that he could net come to clear con
viction of mind to pronounce the Reconstruc
tion acts of -Congress unconstitutional, end
that the offunco charged ageinst McCardl j is
one upon which he was subject to arrest uid
* trial before the military tribunal. The p is-
oner was therefore remanded do the custody
of the military-authorities.
Upon this decision an appeal was taken to
the United Statos fjupremo Court, at Wi sh-
ington ; and, of. course, the case at once lis-
tinctly and peremptorily raised the question
of tho constitutionality of the Seoonsti ic-
tion acts of .Congress. Hat when it.^ppet red
upon tho regular docket several hcnc rcd
cases were found to be rfcefore it, and a no
tion was made to advance it. Such has-l cen
tho custom in tiio Supreme Court wither rai-
nal cases, involving the life .or liberty of citi
zens. This motion was granted though con
tested to a considerable and perhaps
objected ♦- «or some of tho Judges, although
wo bavo no positive proof that such was the
fact- The hearing of tho case is set for the
frst Monday in March, when the const itu
tionality or unconstitutionality of (thoseiron
sters of iniquity, tho Reconstruction acts,
will bo decided by the supreme tribunal of
the land. In the meantime the Radicals In
Congress became acquainted with the fact
that five oat of the eight Judges on the Su
preme Bench would probably decide agasist
tho acts, and so, to counterset this, two .’no
lions have been made; one requires that six
of tho eight Judges in tho Supreme Court
shall be nccoesary to declare a law unconsti
tntional; and -the other takes out of that
tribunal all political cases that may now be
pending in it, and,tbis among the rest.
C5f“ Greeley tells us bow to “mend the
times,” namely: 1. Resume specie payment; 2.
Then prices would find their natural let el;
3. Stop gold-gambling and stock-jobbing;
4. Retrench every expenditure.
By the times, be means hard, times; and by
mending tho times be means restoring pros
perity, cheapening prices, providing work
for the,poor, a return to honesty in financial
affairs .end general comfort and case. But
the crazy luon makes a big mistake. Like
tho dram .drinker who cures brandy blossoms
with lunar caustic, he overlooks and neglects
the disease itself, and endeavors to burn
off a mere symptom rather than obviato tho
real canso of evil.
It is had government—misrule—that in
volves ns in hard times. Let a return to rea
son, justice and common sense take place in
our national legislation, and soon tho entire
country will blossom os the rose. Public
confidence will be restored, people will-cease
to honrd gold and refuse to invest funds,
capital, industry and enterprise will seek in
numerable outlets, laborers and mechanics
will find work, the national credit will be
strengthened, love of countiy restored, union
and harmony will return, general happiness
ensue, and everything will become cheap and
the good old times will ccmc back again.
garrison of fifty
THE GREAT PROBLE3I.
The problem of problems for the Southern
mind, at the present time, is: How shall wo
control that mighty power for weal or woe to
the South, which Federal bayonets have
created—tho influence of the Hacks?
Suddenly emancipated and clothed with
the elective franchise;- the pets of a Govern
ment which is hostile to the white man; freo
to labor or not as they choose, though poores
of tho poor; indued with civil rights they
cannot appreciate; and addicted to various
dishonest practices, they are n mighty pow«
for evil. They arc Iiko some vast machino of
wondrous and uncontrolled force, which
stalks, misguided, through tho land, apparent
.lj intent upon doing all the mischief possible.
The power our freedmen have is a social
power. They arc among us and of us. They
are in our families, in our towns, and scat
tered throughout the land. They cook our
food, they till our fields, they occupy our
workshops, and they nurse our children
They barter and trade, they preach and pray,
they play and dance, they drink and steal.—•’
.Go to our plates of public amusement—they
are there t Look into our Penitentiaries—
and they are there! Visit our State Conven
tion (so called)—awl there they are. Gaze
upon our jury boxes, and you find them still.
It -will not be long before they shall jostle
you. in tho railroad car, sit by jour side at
the public table, and sleep in the same room
with you at the hotel. They will claim ad
mittance to your parlors, harangue you at the
bar, and, perhaps, charge you from the
bench. They arc making your laws and will
800n bo administering them.
They, too, have a political power. They
wilf make Presidents, elect Governors, choose
Judges, impose taxes, and prescribe wbetber
or not youand I shall vote.
And who aro these blacks who wield such
a potent influence, and whose power is felt
60 puissjntly in the destinies of Georgia ?
They are but our slaves of yesterday. Yes
terday our will was their law—our wishes
their pleasure. They were raised with us,
often ate from the same plate, played around
tlic same fireside, and were our companions in
field and forest. \Vc were attached to them,
and our purses wero always open to their
wants. They professed devotion to us,
served us faithfully, and many would bare
died for us.
But where, now, is the influence we once
exerted over them ?-. Why is it that they
have become so estranged from us ? Why do
they regard us and all our asseverations with
distrust ? Why is it that they are willing to
use the nighty power conferred upon them
to pull down the pillars of Southern society
and everwhelm our noble old commonwealth
in ruins ?
It is because others have stepped in and in
sidiously undermined our influence, poisoned
the minds of our once attached dependants,
and wcaDed their affections from us. It is
Decisions of tlic Supreme Court, BOW In
Session in Milledjrcville.
Pro i tie.Southern fkV. ■ •r.itr.]
Mary J. King, ct. at )
M. j- Equity—From Troup.
Joshua King, ct. at \
W4BKB, C. J.
Whore a note was given, for trust property,
payable to tho trustee, which note was placed
in tho hands of an attorney at law for collec
tion by tho trustee, suit instituted thereon and
judgment obtained for tho amount thereof,
which judgment was paid by the defendant
in Confederate notes (the common currency
of tho country at that timo) to tho attorney
and received by him in satisfaction of said
judgment without objection at tho time, and
tho money so collected by the attorney was
paid over by him to his client, tlic trustee,
and received by him without objection at the
time: Held, that on a bill filed by the cestui
que trusts against the maker of the note, the
attorney at law and the trustee, to account
for the trust funds, that the maker of the note,
who had paid it, and the attorney who had
collected it in Confederate treasury notes in
good faith, and paid over to the trustee, in like
good laitb, which was received by tho latter
without objection, that the maker oftbenote
will be protected in such payment to the at
torney of the trustee and the attorney will be
protected in the payment thereof to his client,
the trustee.
Held, also, that a trustee, having possession
of trust property, is bound to use ordinary
diligence in the preservatiCn and protection
of the same, and that if he did not intend or
desire to receive the Confederate money in
payment of the note, he should have given
his attorney notice not to have received it
from the maker thereof.
Held, also, that where a bill is filed against
four defendants and there is no demurrer
thereto, at tho proper time for misjoinder of
parties, and upon the trial of the cause some
of the defendants introduce evidence and
other defendants do not, the complainant’s
solicitor is entitled to conclude the argument
before the jury.
Where a bill is filed by infant cestui que
trusts, by tbeir next friend, for an account of
the trust property, against the trustee and
others, it is error for the Court to charge the
jury “that the complainants ought not to re
cover, because such recovery would be no
protection to any of the defendants, and that
they would be liable to be again harassed
with suits by other next friends, by the lawful
trustee, or by the minora after Sirs.-King’s
death.” See sections 4091, 3187 Code.
Held also, that it was error in tie Court in
view of the facts of this case to charge the
jury, “nor is there any ground or reason'for
a recovery against him (Gartrell) under the
onen 15 T)in inrv
The Greorgia, ’Weekly Telegraph.
receives from tlie location of the road on his
premises may lie set up by way of reduction
of such apprehended damages.”—Judgment
below affirmed.
E. W.'J. Harden for Plaintiff.
Hartndgc «fc Chisolm for Defendant.
- From Polk.
Thoms D. Dupree, Ex’r, < t al, )
os. - -
James II. Price. )
Harris, J.
Although tho evidence in this case is con
Aiding and'not satisfactory as to the genu
inencss oftlic order sued on, yet ns a special
jury has found iu favor oftlic plaintiff below,
and the defendant not having filed in tho case
a plea of non estfaelum or protected himself
from personal liability by a plea of plene ad
ministraeit2>ratcr, we cannot, without the vi
olation of a well established rule of this
Court, direct a new trial; aud more espe
cially when, ns in this case, the Judgo below
before whom the trial took place, was satis
fled with the verdict and refused to disturb
it.—Judgment affirmed.
Chisolm, Waddell and Broyles for Plaintiff.
Harvey & Scott and W. Akin, for De-
tendant.
High & Co. and J. J. Morrison )
ts. > From Polk,
J. W. Childers, Administrator. \
Hakims, J.
The bill of complainants having 6ct up
that Equity caL’cd the Vendor’s Lien, against
thc administrator of the vendee, tho estate of
vendee being insolvent, (this being a trans
action between vendor and vendee before the
adoption of cur Code.) it should, under the
peculiar circumstances of this case be en
forced, as there is no countervailing equity
existing in behalf of those creditors whose
debts were.contracted before the purchase of
the land.—Judgment reversed.
Harvey & Bcctt. for Plaintiff.
Wright & Broyles, for Defendant.
' MiUedgcvillc lias
or sixty soldiers.
ESP*A eburoh in Charleston lias recently
been consecrated to the sole uee of colored
Catholics.
JgF* The- Czar of Russia has dosed a con
tract with the Colt Fire-arm Factory of Con
necticut for 30,000 Berdan rifles.
U^-prot. Agassiz has published a book
on Brazil. It is an interesting work, but not
lialfns interesting or valuable as the 80,000
specimen?, drawn from all tbo kingdoms of
nature, tern trial and aquitic, in the tropics
of Brazil, which lie brought home with him
aud deposited in the Museum ofCaimbridgc,
an institution c-uablishcd by Abbott
Lawrence.
r;*r’ It seems that the printers liavo given
the Mi? Aaippi Convention trouble by astrike
on account of non-payment lor printing the
journal of the proceedings.
What an nbundanco of faith the “pap
concerns at Atlanta, that print f ir the Con
vention, must liavo!
Nova Scotia threatens to rebel against
tho dominion of Canada. Some of tlie Cana
dian journals say it would bo a liappy rid
dance. Tho New York i ribune said the
game tiling about tbo South in 1801.
laTMany planters in Mississippi say that
they lost $100 upon every band they employed
last year. The avciegc price paid was $175,
and rations. They are giving about half that
amount this season.
William T. Hamilton who was elect
ed United States Senator from Maryland, for
the term ol six years from Match 4, 1SC9, to
mccced Reverdy Johnson, is a native of that
State, and represented her in the lower bouse
of Congress from 1819 to 1855. The vote by
which tie was chosen was not a large one.
Juarez’s government of Mexico is pro
gressive. One man in four n«w dies pcace-
lully in his bed, according to {be latest vital
statistics.
because others have assumed tutilagc over
them and guided them into courses of con
duct inimical to the wishes of Southerners,
and hostile to tbeir best interests.
The Bradleys, the Hnnnicutts, the Clifts,
the Richardsons, the Eberbarts, and the
school-marms have conic amongst us infnsed
tbeir opinions and sentiments into tho ne
gro’s mind, have convinced him that respect
able Southerners arc no longer his friends,
that Northerners only are willing to educate
him and give him his rights, that his old
Southern master is a detestable rebel, that
not a word of truth is spoken by any of the
“rebels,” and that
7lV hang Jeff. Davi* on a soar apple tree,”
is eminently the proper sentiment of every
freedman.
Nay, further.
They teach tbe freedman that ho is now the
equaj of tbe white man; that all tbo civil
rights of white men attach to him; and that
if be bo not treated with tbe utmost liber
ality, lie must steal, shoot and burn. And,
still further, they arc but using tbe negro as
the means to put down tbe white man, ele
vate tbe black and make him ruler over bis
former master. What a power tbe negro is l
What a power be is to become!
Ignorant and inzy, be is bad enough; igno
rant, lazy and vicious, be becomes a monster;
but ignorant, lazy, vicious, and tbe subject of
tbe malicious teachings of malignant minds,
be becomes truly terrible.
Ficklo and immoral, be is unreliable; but
when to his unreliability is added, under mis
chievous teachings, the audacity which de
mands the privileges of faithfulness and trust
worthiness, tbe annoyance be gives ap
proaches tbo tragic.
Behold whal. distress occurs when ho refuses
or neglects to work. See our courts, jails and
penitentiaries thronged with colored culprits
Contemplate the horrors of a war of races at
tbe South. Who shall tell us how to conduct
so that tho negro shall be mode intelligent,
honest, faithful and reliable ? Who shall in
form us how to secure lasting peace, harmony
and good will between whites and blacks?—
Wuo will enable tho Southern-born white
people of respectability to acquire controlling
iefluenco over the freedmen, for tbeir good
and for the good of the whole nation ? Is
not tho superstructure of confidence, harmony
and jirospcrity to bo built on a foundation
ot intelligence and moral worth ?
If we would make the freedmen our
friends, we must piovc ourselves to be their
lricnds. If wo would win their confidence
it must be by bestowing benefits. If we
would make them live in harmony with us,
wc must educate them up to the point ol
being able to perceive that it is best for them.
If wc would make them prosper, wc must
improve tbeir morals, and increase tbeir hon
esty, industry and perseverance.
So that education is the key to this great
problem. We, the Southern people, must ed
ucate the blacks. Wc must not leave this
work to the fanatic emissaries of Northern
societies. We must do the work ourselves
and thus prove .ourselves their friends, win
theirconfidenco, gain their esteem, acquire
their love and thus get rid of the Yankee
teachers. Wc must begin with tbo youDgest
and gradually educate the entire race moral
ly aud intellectually, until they become per
fectly reliable and iu perfect concord with
ourselves. This is a great work, and must
bo accomplished, and tlic sooner it is under
taken the better.
law and evidence in this case.” The jury
should be left free to decide upon the evi
dence snbmitted.
It is also error for the Court in its charge
to the jury to say to them “that he was sur-
irised that no demurrer bad been filed to the
lilt, or some motion made to dismiss it; but
as no one had made any such motion, he
wonld go on and charge them the law in the
case,” such remarks being calculated to prej
udice the plaintiffs case in the mind of the
jury.—Judgment reversed.
.Wright A Broyles for Plaintiff.
Ilarvoy & Scott and Akin for Defendant.
♦Doe, ex dem of j Ejcctment _p rom
Wm. RDearmond, [ J Quitman ._ Re .
turned to June
Term, 18G7.
rs. t
Roe, cas Eject, and j
Isaac Brooking, tenant. J
Warner, C. J.
When D. made a deed conveying a lot of
land to N., and B. was in possession of the
land at the date of D.’o deed to N; Held,
that tbo deed from D. to N. was void and
did not convey title out of D., so as to pre
vent a recovery in an action of ejectment by
the plaintiff on the demise of D.—Jadgmcnt
reversed.
♦Judge Harris did not preside in this case.
A. Hood and W. D. Kiddoo for Plaintiff
E. L. Douglass for Defendant.
James M. Scott )
vs. > Seif a —From Polk.
H. W. Allen, ct. at )
Warner, C. J.
Where a bail bond was taken by tbe Sher
iff, payable to the plaintiff in a civil suit;
conditioned that if the principal “shall well
and truly pay and satisfy tbe condemnation
of tbe Court or render bi3 body to prison in
execution of tbe same in terms of tbe law in
sucb case3 made and provided ; and upon
failure tbereof.JK. W. A., his security, will do
it for bim” : Held, that sucb a bond was
good and valid under tbe laws ef this State,
—Judgment reversed.
E. M. Broyles, Chisolm & Waddell for
plaintiff
T. W. Alexander & Akin for Defendant.
L. R. & S. D. W ragg) Certiorari — From
B. M. Strickland. \ F1 ° jd *
Warner, C. J.
Where a physician, without a diploma, has
obtained a license to practice his profession
from a member of tlio “Medical Board of
Georgia” for each year, though more than
one year, he is entitled to charge and collect
his fees: Provided, the Medical Board has
not refused to grant him a license in the mean
time.—Judgment affirmed.
Alexander & Wright, and W. Akin, for
Plaintiff
Harvey & Scott for Defendant
R. W. Richardson, el. al. I Procced’gn against
rs. > tenant bold’g over.
R. D. Harvey, Adm’r., ) From Floyd..
Warner, C. J.
Where there is a contract for tho rent of
land reduced to writing, by which the party
renting stipulates that he will deliver the
possession of the rented premises to tho party
from whom he rented tbo sanio, by the 25th
day of December next after the date of the
contract, the relation of landlord and tenant
exists between the parties, neither tbe tenant
nor those claiming under tbe tenant can deny
or dispute the title of the landlord without
first surrendering the possession of therented
premises to the landlord according to the
terms of the contract.
Where a tenant holds possession of the
rented premises beyond tbe term for which
the same wero rented, the jury, upon the trial
on an issue formed under the provisions of
the Code, may find a verdict for double the
rent stipulated to be paid; or, if lie be aten-
ant at will or sufferance, then for double the
rent the premises are shown by the evidence
to be worth.
Where the proceedings are to eject the sub
tenants holding under the party renting the
land, as provided by the Code, it is discre
tionary with the Court to allow the party
making the contract for rent to be made a
party to the suit, or to require him to defend
in the name of his sub-tenants, which discre
tion this Court will not control, unless some
;ood and valid reason be shown why it
hould do so, which does not appear from
the record in this case.
A motion to continue a cause upon the bare
statement that a party is desirous to file a Bill
iu Equity to enjoin the same, will not be al
lowed; especially where there has been a want
of diligence or some good reason assigned
vhy the Bill could not have been filed before
the session of the Court.—J udgment affirmed.
Wright & Broyles for Plaintiff
B1D. Harvey lor Defendant.
j-gf*Gcn. Breckinridge seems to be wan
dering about over the Old World without
any visible purpose or much means. We do
not see why ho don’t return to Kentucky, lor
nobody sectors to object to his doiDg so.—
Wc judge that be is too proud to ask for
pardon. ^
{2/” A man was sliot through the body
and mortally wounded in » crowded Court
room at Memphis, on the 24th, and uo one
knows who flred the shot.
Mechanics’ Bank f
vs. > From Richmond.
S. D. Heard. )
Harris, J.
Every surrender by a corporation of its
' franchises involves a delivering up or yield'
possession thereof to another, and, by neces
sary implication, before such surrender can
be complete, there must be an assent thereto,
or an acceptance of the surrender.
By the common law, a Corporation could
be dissolved by a surrender of its franchises,
but the surrender must have been accepted
by the Government, before such-dissolution
could be effectual. 2 Kent’s Com. 210—15th
Pickering’s R. 851.
ilhe Code recognizes a voluntary surrender
“to the State.” Created, as was the Meehan
ics’ Bank, a Corporation by an Act of the
Legislature of Georgia, a voluntary surrender
by it of its franchises cannot operate to ef
fect its dissolution without an acceptance by
the Legislature of such voluntary surrender,
its assent thereto to be evidenced nsareother
legislative acts.
A “voluntary surrender,” as spoken of in
our Code, is simply the free consent of the
Corporator expressed by means of a formal
surrender underits common seal, so as to en
able the creating power to dissolve by law
the Corporation and without a resort to judi
ciat proceedings for such purpose.
There is no error in the Court below in stri'
king ott that part of the defendant’s plea ns
stated in tho record marked E, as the several
Acts of the Legislature mentioned therein,
passed subsequently to the date of the char
ter, could not lawfully impair any of the rights
of the Company secured thereby without tho
voluntary assent of the Company thereto.—
Judgment affirmed.
Walker, J., dubitante.
W. T. Gould, Jos. E. Brown, for Plaintiff
A. R. Wright, H. W. Hilliard, J. T. Skew-
moke for Defendant.
Mayor and Aldermen of Savannah, 1 p rom
,, _ . . c f‘ i Chatham
Algernon Hartndgc. )
"Harris, J.
This case, in principle, tails within the de
cision of this Court in case of Jones vs. The
Wills Valley Railroad. 30th Geo. K.’, 42.
In that case it was decided “that where the
private-property of a citizen i3 taken against
his wish and will for a Railroad, lie should
be pnid the value of the property so taken in
coin.”
“If the owner of tho land taken sets up
claim for apprehended evils and inconve
niences, the incidental advantages which he
B. Mordccai, )
vs. J- From Sumter.
James Stewart and Cutts. )
Harris, J.
It is a principle recognized in the English
and American systems of jurisprudence that,
whenever any Court of competent jurisdiction
has possossios of a cause it will retain it to
the exclusion of other Courts.
Especially, under our peculiar systems,
whero in the same Judge arc vested ait com
mon law powers and all chancery powers,
when a ca«o is pending on the iaw side of tbo
Superior Court and the defendants can at law,
by the provhtons of our Code, set up and
maintain all (he equitable defences which he
could on the equity sido of said Superior
Court, the party defendant will not be per
mitted by bill and injunction to withdraw
said cause from the Court in which it is pend-
Stewart, the security for Cutts, not having
paid anything for Cutts, bns no equity to be
subrogated to the right, 'which the law ot
Georgia gives to Cutts, to sue for and recover
usurious interest paid by him to Mordccai on
transactions, other (as is the case here) that
the debt on which Stewart is security.
The discovery sought by the bill of Stewart,
tbo security of Mordecai'thc creditor and
Cutts principal debtor, as to amounts of
usurious interests paid, and when, etc., can
be had as fully at law, where the" case is
pending as in a Court of Equity.
No Equitable matter being alleged in com
plainant’s bill, which a Court of law cannot
take cognizance of and afford as full relief as
a Court of Equity, and no sufficient ground
being shown to warrant the interference of a
Court of Equity in restraining the legal
right of Mordccai to dismiss his suit when
he moved to do so, tho injunction was im
properly granted and should be dismissed.—
Judgment reversed.
Walker, J., concurring:—No Suitor is
compelled to appear on the Equity side of
tbe Court, but lie may institute his proceed
ings for an equitable cause of action on the
common law side of the Courts or a defend
ant may set up to a proceeding at law ? any
ground of defence whgthcr it be an inter
vening Equity or a set off of an Equitable
nature or other ground of defence either
legal or equitable, and the Court may allow
tlic jury to find a verdict and a judgment
may be rendered tlioreon, so moulded and
framed as to give equitable relief in the case,
as verdicts and decrees are rendered and
framed in Equity proceedings. If a party
attempt to foreclose a mortgage, the mort
gager may set up any defence whatever legal
or equitable, which ho may have against the
mortgager or he may, at his option, proceed
on the Equitable side of the Court to assist
any equitable action which ho may have
against tlic mortgager in an independent and
separate proceeding at law to foreclose and
force the mortgager to litigate his rights un
der the mortgage of a Court of Equity.
A plaintiff may dismiss his action, either
in term time or vacation, except when a plea
of set-off is filed, in case such a plea
is filed, he may not dismiss, so as to
interfere with such plea, unless by leave of
the Court on sufficient cause shown and on
terms prescribed by the Court.
The Jurisdiction of Equity in Georgia is
not materially altered by tbe Code, but the
Jurisdiction of the Courts of law 1ms been
extended so as to embrace all equitable
causes of action concurrently with a Court of
Equity.
In cases where Courts of law and equity
have concurrent jurisdictions, that Court
which first obtains jurisdiction should retain
it and do complete justice and give full relief
to all the parties, in reference to the subject
matter of tlic suit.
Accounts arc assignable so as to invest the
title iu the assignee.
Warner, C. J., dissenting:—In this case
the complainant alleges that he is only secu
rity for the principal debtor, who is insolvent;
that the creditor, who is one of the defen
dants, resides out of the State and is largely
indebted to his principal debtor for usurious
interest paid by him to the creditor, which
indebtedness of the creditor to his principal
debtor he seeks to have ascertained and ap
plied to the payment of the creditor's demand
against him, as the security of his insolvent
principal debtor, as an equitable set off
Held, that tho jurisdiction of a Court of
Equity, in this case, embraces the same mat
ters ot jurisdiction and modes of remedy as
was allowed and practiced in England,which
has not been taken away nor destroyed by
the provisions of the Code, and that the case
made by the complainant's bill of an equih
ble set of! against the defendant, who reside
out of the State ; which cannot be pleaded 1
the complainant according to the rule of th
common law, gives jurisdiction to the Court
and that the judgment of the Court below
overruling the motion to dismiss the bill
should be affirmed.
Cobb & Jackson, and Nisbet, for Plaintiff,
Hawkins, McCay and Dougherty, for De
fendant.
5- From Stewart.
Green B. Hurley,
vs.
David B. Gauley and (
Charles R. Burke. J
. Walker, J
Where the Court below grants a new trial
and no principle of law is violated, th'
Court will not disturb the ruling.
This Court will more reluctantly control
the action of the Court* below when a new
trial has been granted than when one has
been refused.—Judgment affirmed.
Singleton A. Thornton, 1 Motion to open
e». > Judgment..
Moses Hollis. ) From Randolph.
This Court will not control the discretion
of tho Court below, except in a case where
the discretion has been abused.—Judgment
nffiimed.
David H. Brian, 7 Assumpsit.
Southwestern R. R. Co. { From Randolph.
A non-suit should not be awarded when
the plaintiff’ makes out a prima facie case.
Where the evidence tends to provide a
part performance of a parole contract, the
Court should permit the case to go to tho
jury, and instruct them as to the legal prin
ciples applicable to tho facts jiroved.—Judg
ment reversed.
Jacob L. Cobb, ^ Possessory Warrant.
Megrath&Pattcrson. i From Rand °lP h *
To entitle a party to recover possession of
personal property by possessory warrant, he
must show that the property had previously
been in his possession.—Judgment reversed.
A. Louis * Co, ) Equity.
BambergerTiiloom&Co. ) From Kandol P h
Although it is a general rule that on the
coming in of the answer, plainly and distinct
ly denying all the tacts and circumstances
upon which the equity of the bill is based, the
Court will dissolve the injunction, yet, in some
particular cases, the Court will continue the
injunction, though tho defendant has fully
answered tho equity set up. The granting
and continuing of the process must always
rest in the sound discretion of the Court, to
be governed by the nature of the case; and
this Court will not control the exercise of that
discretion except in a case where the discre
tion has been abused.—Judgment affirmed.
Thomas J. Cox,) Attachmenfc
Sarah Felder. J From Webster.
An officer of one county may issue an at
tachment returnable to the Courts of another.
An executor, de son tort, who is removing
the assets of deceased out of the county, is
liable to be attached and the assets levied
upon.—Judgment reversed.
William A. Creamer,)
vs. >From Decatur.
N. A. Smith, Sol. Gen’l )
Where the Solicitor General is appointed
to see that the grounds ot divorce are legal
and sustained by proof, (under Section 1807
of the Code) he may introduce evidence and
enter fully into the defence of the case.
Tho Court has no authority to order the
husband to pay the Solicitor General for this
service. Counsel fees are allowed as “expen
ses of litigation,” and can be granted only
on the application of the wife.—Judgment
reversed.
Harris, J.
The bill of complainant, as Executor, hav
ing alleged tbe emancipation of the slaves
belonging to the estate which he represented,
by the result of the late war, and the I.
iature of Georgia, by an act approved the
12tli of March, 18CG, having provided for the
relief ot executors, administrators, guardians
and trustees, in consequence of such emanci
pation, it should not have been dismissed on
demurrer; but the relief sought, under such
act, should have been granted, unless by the
answer and proof it was shown that, by the
gross negligence and willful neglect of said
executor in the performance of his duty, he
shall he held chargeable to the creditors of
the testator, to the extent of the value of
such slaves.
That upon tho trial of sucb cause, the com
plainant, notwithstanding its disallowance
by the ordinary, upon proper proof that lie
had paid a note or judgment against the es
tate which he represented, i3 entitled to
have it credited in his favor, pro rata and ac
cording to the priorities established by law.
Judgment reversed.
Wright & Broyles, for Plaintiff
Underwood & Smith and Akin, for De
fendant.
Walker, J.
Samuel D. Irwin, Adm’r, etc., f
vs. . > From Terrell.
John T. Howard, et al. )
The traverse of the plaintiff’s affidavit for
attachment must be made at the return term
of the attachment.
An affidavit -tor attachment, stating that
“defendant is actually removing or about to
remove out ot said county,” is valid. A sub
stantial compliance with the requisitions, of
the attachment laws i3 sufficient; and the
bond given by plaintiff is amendable by the
consent of the sureties. Declaration in at
tachment is amendable.
An affidavit for attachment need not. de
scribe the evidence of debt—it may state
“the amount of tke deht claimed to be due,”
and the pleadings should describe the cause
of action.*
A plaintiff in attachment may make it re
turnable to the term of the Court in which
he elects to sue, next after the issuing thereof,
provided such Court shall hot sit witlun
twenty days after the issuing of the attach
ment. He may make it returnable to the
next term of the Superior Court notwith
standing a term of the County Court may
intervene.
Where a defendant in attachment replevies,
the property attached by giving security, his
sureties arc liable as “security on appeals,'
notwithstanding the loss or destruction of the
property levied on.
A bond, with sureties, given by a defen
dant in attachment to replevy property
levied on, conditioned that defendant shall
appear at said term of said Court, and shall
abide by and perform the order and judg
ment of said Court in the premises, and pay
tbe said plaintiff the amount of the judgment
and costs that he may recover in said case, is
valid, and authorizes the plaintiff to enter tip
judgment against defendant and sureties for
the amount of the judgment that he may
recover in said case.
When three attachments are levied, and
one bond given to replevy all the property
levied on, judgment may be entered against
tho defendant and sureties on said bond for
the amount of the judgment in each case.-
Judgment reversed.
We see frequent intimations in ! ■
papers that the Senate will mVv. , 1
modifications in the. new I;-e,„,'. ri ,;: '
ju-t passed by the House, beforethe^
to pass it. We should be very • n . t
them well founded. Thecountry m
looked to tile Senate, and not seldi.i^ • lfri1
for an infusion of greater caution
md moderation into Congressional • 0l
John R. Moody, 7
John Ellerbic, Adm’r of f From Rando, P h '
Stephen Royal.
As a general rule, a Court of Equity will
not interfere with the regular administration
of an estate by the representative; and to
authorize such interference, the facts must
very clearly show there is good reason for so
doing.
If the indebtedness of one be tho founda
tion of the credit given to the other party,
and which cannot be enforced at law, this
may sustain a set off in Equity.
Where a judgment debtor of an estate
which is solvent and owes no debts, purcha
ses the shnre of a legatee of the estate in
debt, and thero appears no reason why the
representative of the estate should collect
said share, except for the purpose of paying
back the money to the debtor, Equity will re
strain the collection of such portion of the
judgment, and order it credited on the judg
ment.—Judgmont reversed,
Shewmake & wife aud )
Parsons & wife ’
vs. j- From Burke.
The Executors of |
Henry P. Jones. J
Harris, J.
The whole matter in this case being exclu
sively one of fact and for the determination
of the jury, and such fact being found, upon
the evidence, against the complainants, we
do not find in tbe record anjr ground which
would authorize the granting of a new
trial.
The accidental omission, by the Judge
below, to give in charge the requests made
by complainant’s counsel, does not furnish a
sufficient ground for a new trial. If the
counsel making the request was present when
tbe charge wa3 made—perceiving that they
were not noticed—it was his province and
duty to have called the attention of the
Judge to his omission.—Judgment affirmed.
J. T. Shewmake for Plaintiff.
E. Starnes for Defendant.
Lucy J. Whatley, ctal,)
•a. > From Dougherty.
Zachariah Slaton, et at )
Where a bill of Equity is dismissed, it is,
out of Court, and no decree can be rendered
upon it.
Tbe ordinance of the Convention to - settle
the equities between parties, applies in terms
to contracts and not to wills.
The “instructions” given by the Court to
the executor arc proper, hut they should
have been embodied in a decree.—Judgment
reversed.
A Letter from Mr. Davis.
Jfi
Robert O’Bar,
rs. V From Floyd
Alexander & Trammell.)
Walker, J.
A letter written by a party to his counsel
stating that ho was sick and unablo to travel
and asking a postponement of the trial of
his case, 13 not a good showing for a contin
uance.
When Judge and lawyers differ as to what
tho law is upon a given state of facts, it is
not error if the Court refuse to charge “that
if the statute is plain then it is not an intri
cate legal question.”
An attorney is bound to exercise reasona
ble care, skill and diligence in attending to
tbe business of his client, and is liable in
case ho fails to do so.
Although the charge of the Court may not
be strictly correct, yet if, upon the whole case,
it appears that justice-lias been done, a new
trial should not be granted.
A juror will not be heard to impeach his
own verdict.
A jury, while confined in the investigation
of a case, should be furnished with refresh
ments only by the direction oftlic Court, and
if there be competent evidence that any re
freshments were furnished without such di
rection of the Court, it might be good ground
for a now trial.
To entitle a party to a new trial upon the
round of newly discovered evidence, it
hould appear that material evidence, relating
to new and material facts, lias been discover
ed after the rendition of the verdict. The
subsequent discovery of the materiality of
facts previously known and understood, is not
sufficient.—Judgment affirmed.
Harvey & Scott for Plaintiff.
Wright & Broyles for Defendant.
Wm. C. Hendricks el al,
The New Orleans Picayune quotes from the
Clinton (La.) Patriot an interesting corres
pondence lietwecn Mr. Davis and a number
of citizens of the Parish of West Feliciana, iD
that State. The citizens, after mentioning
the fact that bad weather had hindered many
of them from calling in person upon Mr.
Davis, say:
As the chief executive of the late but now
fallen Confederacy, you enjoyed the respect
of all here whose fortunes were linked with
that organization; but as the representative
man who lias borne with fortitude aud dig
nity the insults and abuses of a triumphant
faction, you have won and enjoy their admi
ration.
Crushed and impoverished as wc are, it is
not in our power to extend to you the elegant
hospitalities that it would otherwise be our
pleasure to beatow; but should either inclina
tion or the discharge of duty lead you to visit
our locality, you will find a home and a hearty
welcome in each and all of our habitations.
To which the following answer was made:
West Feliciana, La., Jan. 8, 18G8.
Messrs. Frcyhan, Johnson, Fishborn, Jones.
Woods and others:
Gentlemen—I am deeply grateful for your
very kind letter of this date, and assure yon
that it would give me great pleasure to accept
your invitation. My engagements require
me to leave for Mississippi so soon that it
will not be in my power to .visit you, and
again look upon a place associated with many
happy memorios. Your sufferings and losses
have been to me ever present, through all
the trials to which you so feelingly refer.—
The desolation which everywhere presents
itself in that oucc prosperous country, fills
every heart with sorrow; but I hope and
trust a better time will soon come to us. The
patient fortitude, the cheerful energy anti
manly "virtue which our people display in
the depth of their misfortune, cannot fail to
bring the due reward.
Accept for yourselves aud those whom you
represent, the expression of my lifo-iong de
votion, and my earnest prayer, which has so
long been daily offered, that the Father will
restore our stricken land in the way which to
His wisdom'seems best.
I am, most cordially, your friend,
Jefferson Davis.
As explanatory of the allusion of Mr.
Davis to remembrances of the past, it may
be proper to state that lie was at one period
of his life-a student here, and that an oldsr
brother and a sister of his wero members of
our community.
Jaclson, La., January 10, 1SG3.
UST* A special dispatch to the Baltimore
Sun, dated Washington tlic 23d, says:
It is learned from a member of tlm Recon
struction Committee that at their meeting
this morning, when it was decided to adopt
the bill to prevent courts taking jurisdiction
of cases arising under the Reconstruction
Acts published to-day, the Chairman was also
instructed to report the bill to the House to
day, but immediately after the adjournment
of the committee an impromptu conference
of Republican members was had upon the
floor, and such were the doubts expressed as
to the propriety of the bill and its sweeping
character that it was deemed best to withhold
the report to the House until further consul
tation.
than the House has always displayed Th**
qualities were never more needed ^
The action cf Congre.=3 at theim ‘ Eot>
sion will constitute tbe platform oa »,>
the Republican party will ga i uto
Presidential election. There is a data 6 Ciilt
demand in certain quarters for “bolii ° a!
ures,” which can only mean measures^
lated by their character to startle the f
and apprehensions of tho country. Th“ ^
ures which the House lias sent, and is 0 !? 3 '
sending, to (he .Senate for its concur- "
certainly answer this description, andT"
produced this effect. The utter abolitj :
the local governments in tbe Southerns*!^
the virtual deposition of the President fr ^
portion of the constitutional functions of 1
office, and the installment of an absolute^
tator in bis stead, the restriction oftbei) C
era of the Supreme Court, and the attend
coerce its decisions in specifiocases,arein
ures not calculated to calm tbe public nfs
or augment public confidence in ;h e n ,‘!‘
which makes itself responsible for them. ' I
What is the necessity for them—f 0rc
tainly it is only in some extreme emercen'
that such measures as these could be d«-" '
wise or even tolerable ? The Tribune sir*-
ly urges them upon public favor: trill I
good enough to tell us why they arereq B i rt ,,
What crisis in our national affairs deniair’
resort to remedies so extreme and desjx-m '
a9 these ? While the war was raging-S!
a rebellion of formidable proportions
power menaced our Government with o-•
throw, many things were done for whiebtk
plea of necessity was urged and admitted
lor then the plea was at least intelligible ~
But what does it mean now ? In what oc~
ter does any such imperative necessity tor»
1 feme measures exist ? The rebellion is or i'
The Government is safe. No armedho-tihu
threatens it with overthrow. No public ntrfl
overhangs the nation which can onlt
averted by the extremest measures
desperrfle States ever dream of resorting'
And without some such necessity, the Be'
publican party cannot vindicate itsdfbeS
the people, or retain the power which rii.
out sufficient warrant, they thus assen U J
exercise. “Bold” measures are tolex'jj fc r
the people when the people deem
essary—in presence of some great emergenci
—though even then they do not passuncW-
lenged. But they are fatal to any party
resorts to them without being able to demo;-
strate their essential and inevitable nec&atr.
The Republican party is tempting fata lj
is overthrown now, it is overthrown b
ever. By the extreme ground it threatensn
take, it is alienating from its confidencend
support thousands and tens of thonssadj
who; in every State, have sustained its for-
tunes because they saw in its success theo«!i
conditions ot a permanent, free and Constiti
tional Republic, Its action how is promt:-
ing questions, as to its motives and cbancia; j
to which it will be found difficult togia
clear and satisfactory replies.
We look with some degree of confide®
to the Senate, to avert Irma tile patty-;I
the country the dangers which seem to ore-
hang them both.—New York Times.
i£lF”A Boston paper says: We tctl
highly amused the other day, at the maw I
vres of a green darkey from the country,ik* I
was in the grasp of a police c :iker.! : I
been found making a disturbance near tii
Common. The policeman had him bjthl
roof of bis jacket when the darkey wjs »|
dcring the captor to let go 1
“Don’t I say let go ob me ? Ain’t I telii: |
ye to let goob me?”
The • officer, who was a powerfully bsCt I
man about six feet three iu height,propelled
the fellow about six feet at a jerk, betwto
each of the above questions.
“I ueber teched you ! I 'jest com into de
city on the Worsted Railroad. HavelEtrcci
you: or frode any ling Sposon IfI
you along when you warnt dooin nu5n!-l
Don’t I tell ye to let go ob me t Don’t jo: I
hear ”
And they disappeared round a corner,!:. I
prisoner “sagging” back,and tbe officer jatf
g him toward the police office.
We suppose the above is a fair exempli?-1
tion of the civil rights bill, away downEt'j
though it doe3 not appear that Cuflee gotbl
rights in a very civil way.
Mr Seward and Alaska.—Mr. Sm"
sometimes fulfills his own propheca-?. g
discover from a perusal of one of hissp.E-' [
delivered September 18, 18G0, in which-J
said:
I can stand here and look far off intotfj
Northwest and see the Russian as be busy I
occupies himself in establishing seaports d I
towns, ami fortifications, as outp.i;:? : I
empire of St. Petersburg, and I can saygotol
build up your outports to the Arctic osi I
They will.yet become outports ot i::y : |
country, to extend tbe civilization ci
United States in the Northwest.
13?” A Jacobin newspaper concern tiff I
that the loyal people of Georgia
trust in the Reconstruction Convention. • I
somebody in Georgia did ndt trust the nt:=' I
hers of that Convention, starvation in wj
South would not be limited to C ; |
sons.— Chicago Times.
The Japanese Theaters.—London, /*•(
20.— Since the abdication of the C I
some fears were: entertained that tin,3 I
government would refuse to carry out the i-1
portant treaties concluded last vest "--;; I
commissioners of foreign powers, hat!»*“ |
advices from Japan announce ths’
ruler of that country will maintain tad®I
force the stipulations of tho cornnK’-
treaties made by his predecessors.
A Sentimental Journey.—Aprop^. .
the walking mania now so jgvv.il m I
out the country, Mr. John Quill ui Sr g : ■
following oiler : “I will walk with any jp-"
looking girl, who has a fortune in b**"®
right, upon any given mconligbt night “Jl
parties to go as alow as they please, j
neither to hurry back to ih "■ |
will then, on the word, walk into bet
tions, and walk oft' with her fortune.
The following notice from tb e Fj
prietor of the Raleigh Advertiser was I
around the streets of that city: _
‘•Deliberate Murder."— For the }" I
evoting myself to other and tnoreiffii’k'l
dev'lliuy LUJSVIi IU UUICI auu Uiw—-- • p |
duties, I have determined to' kill :JC |
Advertiser. Its life has been shut 1 |
ant. It found many friends, and v ■ y I
received by tlic public. I r-hal! ••••' 1 ’’ I
the estate of the deceased and. i - :: -
Daniel R. Mitchell et al.
From Floyd.
Edward Morti mer. On the following year b e
came to this country. In 1833 he returned to
England and played an engagement with
“Sheridan Knowles” in the cast. Ilis suc
cess was now firmly eslablished, and in after
years he paid several visits to this country,
lie was generally recognized as the Forrest of
the European stage, possessing talents of the
highest order, and a force and power in his
delineations equaled by but few in the his
tory oftha stage.—2K 7. World.
and advertisers.
T. M. He a 8 * 3
loading ritle-s have b:
Isu Government.
nd
;:.e:lcan breecn-
ered by the Spazi-
!3T A Welsh girl once applied toj£.
gyman to get married. The , ‘Ty I
asked her what property her bnsMjj
sessed. The answer was “Nothing
you any better off ?” lie asked. TK
was in tho negative. fiThon TV y’y l ■
name of common sense, do. ye’-* ^<il
marry?” “Your reverence," saul I
have a blanket aud Jack lias * blw . j,|
putting them l oth together we yy |
the gainers.” The clergyman had Sl '"
say.
Railroad Accident.—Yesterday >•;N
the down passenger train on . ...I
Railroad met with an accident, abou i y-',y|
miles from the city. A rail 'I
three pieces; a passenger ear was ly yy,!
the track, and a lady passenger
bruised.—Augusta Cuti., 24th.
Livingstone.—London,
Ml tne