The morning news. [volume] (Savannah, Ga.) 1887-1900, 1893-08-02

mr.. Chisholm Demurs 60 Hil
Amended Petition on constitutional
Grounda


Amended Petition on Constitutional
Grounds.
r. Henry Coles case against the Sa-
vannah, Florida & Western Railroad
Company came up yesterday morning
in the city court, the argument being on
a demurrer to Coles amended petition,
filed by w. S. Chisholm.
Mr.. Chisholm had the right TO demur
again for the reason that the petition has
been amended and IL thus becomes like a
new suit. He demwred mainly on the
ground Of the unconstitutionality Of the
act, claiming that it was class legislation
for the reason that it Disseminated be-
tween corporations, applying only to GER
tain kinds of corporations. This is the
main point upon which Judge Van Epps
of the city court of Atlanta decided that
the act was unconstitutional
Mr.. Chisholm also claimed that the ac-
tion Was penal one, and that it should
therefore have been brought by the attor-
ney general or the solicitor general. He
also referred TO the point about excessive
fines as being contrary to the constitu-
ton, and quoted some decisions to show
that that provision of the constitution
was applicable to criminal as well as to
civil cases.
Mr.. Chisholm also held that notice of
the suit had not been properly served, as
1t had been served upon j. M. Lee, treas
urer, instead Of upon the company.
Mr.. COLE REPLIES.
Mr.. Cole arose to the full hight of his
dignity, confidence of victory beaming
from his every feature, and addressed the
court.
He thought Mr. Chisholm was 'eating
his own words" Mr. Chisholm had com
plsined of his petition, and the Judge had
then notified him to amend it. He had
done so, but Mr.. Chisholm was still com
planning and still demurring to his suit.
Therefore Mr.. Chisolm was eating his
own words.
Cole didn't see how Judge MacDonell
could go back on his own decision. He
had told him that when the amendments
were made the case would be retained in
| court; now that the amendments had
been made, he said he was at loss to
| understand how Judge MacDonell could
go back on his own Judgment.
Cole argued that the attorney general S
name was not mentined in the act as the
person to bring the suit, and if it was a
criminal penalty, the money would go into
the pocket of the state and not into his,
as was intended by the act Therefore,
he thought the act was properly brought
| by the plaintiff in person. The service of
the notice he held was proper in that Mr..
! Lee had made answer to it.
Judge MacDonen reserved his decision
on the demurrer. Cole says that it will
! probably be rendered and the case go to
the jury to-day, on account of Judge Mac
| Donells holding the act constitutional
and he having amended his petition. He
says he has secured Mr.. LaRoche, who
will assist him in prosecuting the case.
A SEALED VERDICT.
The case of Hardy H Moore vs.. w. B
! Brannen, tried in the city court yester-
| day, is one very similar to the Carhart
| case against the Merchants National
! bank.
The plaintiff gave the defendanta check
to get cashed. The defendant was sick
| at the time, and had one of his
| employees to do the collecting The
employee deposited the money in
the. safe, from where it was sub
| sequently stolen. The plaintiff owed the
! defendant a small amount of money
which it is claimed was to be taken out
| of the proceeds from the check.
Tom S. Morgan, Esq, represented the
plaintiff and A. G. Wright, Esq, the de-
| PENDANT. The plaintiffs sought to show
that it was a bailment for hire, while the
! defendant held that it was a gratuitou:
! bailment and that ordinary care had beer
exercised in protecting it, The Jury were
out sometime and the attorneys consented
to a sealed verdict, which win be de-
| livered this morning.
This is one of the most amicable lawsuits
| that has been seen in the city court for
! sometime. The plaintiff boards with the
defendant and during the trial yesterdy
they embraced one another in the court
room in the true fraternal fashion.
The grand jury of the superior coutl
will meet to-day to sit as a specicl juryoe
hear the famous case of Cohen VS.. Coin t
Judge Falligant is expected back frmo
! Atlanta this morning.