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Lark vs. The State of Georgia.

onment to be at an end because the sentence has expired, would be to take for granted the validity of the sentence, which is the very matter in question.

2. We, however, think the sentence legal. It is not, as it should have been, in broad terms, to work in a chain-gang on the public works, (Code, section 4705;) but the streets of Augusta are, in a certain sense, public works, and we think they are substantially within the scope and meaning of the section of the Code which prescribes the chain-gang penalty. The county of Richmond includes the city of Augusta. The court that passed this sentence sat within the city. It has jurisdiction over misdemeanors committed therein, and for many purposes, over the inhabitants generally. Its process runs there, and, we think, there its sentences may be executed, even sentences to labor on the public works. The streets of the city being part and parcel of the public works, the sentence is within the law, though more narrow than the law would have sanctioned. It extends to a part instead of the whole. But is it, on that account, injurious to the relator's liberty ? Suppose he was subject to be confined, alternately, in several jails, would it be a violation of his liberty to sentence him to one only? Is he to be discharged from the work appointed because more is not assigned for him to do? Had he been sentenced to work three hours in each day, would he be turned loose because he was not sentenced to work all day? The sentence is undoubtedly irregular, but it is not such an irregularity as is hurtful to any right of liberty. The relator acquiesced in it when pronounced, and took no steps, we may presume, to reverse or correct it. If he wanted a wider sentence, then was the time to ask for it. It seems to us that he stands concluded inasmuch as the defect is not one that makes the sentence void.

3. The record before us indicates an arrangement between the county judge and the city council under which some of the convicts work on the streets of Augusta, without other compensation to the county than the payment of costs. As amended by the act of 1874, the 4814th section of the Code

Bryant et al. vs. Booze.

confers power on the county judge to hire out convicts, and we see no reason why the city may not hire them for working on the streets the same as other hirers for other purposes. And it is hardly possible that a convict can have the judge's contracts revised by habeas corpus. It is the convict's business to labor in the custody to which he is lawfully consigned, without concern for the terms of compensation to the county for his services. The responsibility for that matter is on other shoulders.

Judgment affirmed.

COLLATINUS W. A. BRYANT et al., plaintiffs in error, vs

THOMAS H. Booze, defendant in error.

55 438 57 556 62 678 64 708

1. If, after notice that another has made a contract for the purchase of land,

a third person cuts in, buys it, and takes a conveyance, such person stands in the place of his vendor, and a court of equity, if it would decree a specific performance of the contract against the latter, will render a like de

cree against the former, 2. The notice need not be actual nor amount to full knowledge. Informa

tion, from whatever source derived, which would excite apprehension in an ordinary mind and prompt a person of average prudence to make in

quiry, will be sufficient. 3. Notice to an agent, received while clothed with authority to promote, and

while engaged in promoting, the intended purchase, will be notice to the principal, even where the principal comes forward before the agent has concluded the negotiations, and completes the purchase in person, the agent not participating in the final stages of the transaction, but only mak

ing the opening which the principal follows up. 4. The declarations of a tenant in common derogatory to the common title

after it has become vested, are not evidence against the co-tenant. Therefore the admission of one that a certain person was the agent of both in

promoting the purchase, will affect that one only. 5. A proposition to sell, contained in a letter sent by mail to the writer's agent

or friend, with request to communicate it, may, after communication to the person for whom it was intended, be accepted by a written reply from the latter addressed directly to the maker of the proposition; and, in such case, sending the reply to the post-office through the same agent or friend, first permitting him to read it, and telling him orally that the proposition is ac. cepted, will not prevent the contract from being one made by letter; and

Bryant et al. vs. Booze.

the contract will be closed, not from the time of leaving the reply to be carried to the post-office, but from the time of its delivery into the post

office. 6. It is not unlawful to hand a business letter to another on Sunday to be

posted on Monday; and, therefore, a letter written on Saturday, left by the writer on Sunday, with request to carry it to the post-office on Monday, may be the medium of accepting a prior proposition from the person to whom it is addressed, and thus closing a lawful contract, dating from Monday, the time when the letter was posted in pursuance of the Sunday re

quest. 7. That a memorandum by counsel on a document in evidence was not erased

according to the counsel's promise in open court, but went out with the jury, is not cause for a new trial where the evidence is ample to support the • verdict on all the material elements of the issue. In this case, the irregularity was harmless.

Vendor and purchaser. Notice. Principal and agent. Tenants in common. Evidence. Contracts. Sunday. Jury. Practice in the Superior Court. New trial. Before Judge UNDERWOOD. Floyd Superior Court. January Term, 1875.

It is only necessary to a clear understanding of this case to report the testimony, introduced upon the trial, tending to show notice to Bryant and Briscoe, prior to their purchase, of the acceptance by Booze of the proposition made to him, in reference to the sale of the land, and the motion for a new trial.

Willis Bobo testified, in brief, as follows: Roberts had been corresponding with him for some time about the land in controversy. First priced it at $700 00, and asked him to see if he could find a purchaser. Saw T. F. E. Bryant, brother of Collatinus W. A. Bryant, and Booze, and told them what Roberts had written. Bryant read the letter, and said that let him out. Witness wrote to Roberts, and sent him Bryant's and Booze's bids. On Saturday, June 28th, 1873, witness went to town, (Rome,) and received the original of the letter copied in the bill.

The only material portion of this letter was as follows: “So please say to Mr. Booze, if he will pay to me $550 00 at the convention at Athens, in August next, and pay the taxes

Bryant et al. vs. Booze.

due on the lot, I will make him a title as good as can be made to any land in Georgia.”

Witness went by Booze's house that evening to give him the letter. He was not at home, but met him at the mountain, about one mile from his house; told him he had a letter from Roberts, and threw it into his carriage. On the next day, Sunday, Booze came to witness' house, bringing an open letter, in response to that of Roberts, accepting the proposition therein contained; said he was going to town on Monday to mail the letter. Witness replied that he was going to Rome on the next day, Monday, and would mail the letter for him. Booze replied that that would save him the trip; witness took the letter and mailed it as promised. As he returned from Rome in the evening met T. F. E. Bryant, at, Parish's shop, and said to him that he reckoned he had lost the land, as Booze had purchased it. Bryant asked if Booze had bought it from witness or from Roberts; told him that he had bought it from Roberts. Bryant asked how much Booze was to pay for it; replied about $600 00. Bryant then remarked that he would have it if he had to pay $750 00 for it, that $200 00 would buy most men, and be intended to have the land. Witness told him not to do that, because it would make Roberts dissatisfied with him, and he was the friend of all the parties. He, (Bryant,) then said that he would have nothing more to do with it, and if others wanted to buy it they could do so for themselves. On the evening of the next day, Tuesday, witness met Bryant in Rome, and asked him if he had sent the proposed letter to Roberts. He said that he had not. Told him he must not do so, but if he did, he, witness, would expose him; told him that he, witness, did not want him, or any one of his party, to interfere with the trade. Saw T. F. E. Bryant, Collatinus W. A. Bryant and Briscoe together in town on that day; the conduct of Tod (T. F. E.) Bryant had hurt his feelings, and on Monday night witness wrote a letter to Mr. Roberts explaining the whole matter. On Tuesday, at the interview above referred to, he offered to read the letter to Tol Bryant, when he said he did not want to hear it.

Bryant et al. vs. Booze.

Witness then destroyed it. He told Bryant what was in it; that he had written a severe letter, giving Roberts an account of the whole transaction, and stating that Booze had accepted his offer. It seems that witness was acting for all parties; went to the convention at Athens, in August, 1873, to tender Roberts the money for Booze. He was not at Athens, so witness went on to his house, in Hart county; offered' him the $550 00, but he refused to receive it. Roberts then had the letter from Booze accepting the offer made him in June, 1873. Never had any conversation with C. W. A. Bryant or Briscoe, and if they had any notice of Booze's purchase, witness does not know it; does not know that Tod Bryant was acting for them, or that he gave them notice of the purchase by Booze. C. W. A. Bryant and Briscoe live on the same lot of land. Tod Bryant lives about two miles from them.

The only material portion of the testimony of the complainant was as follows:

C. W. A. Bryant, when he came over to survey the land after it was purchased by him and Briscoe, told complainant that he must not fall out with Tod, but with him and Briscoe, because the former had been acting for them all the time. Complainant sent Bobo to Athens to tender the $550 00 to Roberts. He also offered to pay to Trout, tax collector, the taxes. Thinks this was before Briscoe left Rome on the 1st or 2d of July. On the day Briscoe left Rome, Tod Bryant asked conplainant if he would take $ 200 00 for his bargain.

The balance of the testimony of this witness was substantially as that of Bobo.

C. W. A. Bryant testified that he had no notice of the purchase by Booze until long after he and Briscoe had bought. That he had heard a rumor that Booze was trying to buy the land.

D. T. Briscoe testified, in brief, as follows: Left Rome on July 1st, 1873, and went to Hartwell, Hart county, to buy the land in controversy, for himself and C. W. A. Bryant. Bought it from Roberts on July 4th, 1873, and took a deed to the same. Never, at any time before he left Rome, had any

VOL. LV. 29.

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