Lackey vs. The Georgia Company.

gers the property of his neighbor. The object of the law is to prevent double insurance; to stop, if possible, the existence of property-holders, with over-insurance upon their property.

Now, it is just as entirely within this public policy to have a second insurance, which one thinks is good as to have one which is really good. The danger of a burning is the same in both cases-nay, the very fact that one has fraudulently procured an over-insurance is, prima facie, a suspicious circumstance. The public evil, which the law intended to prevent, is just the same, perhaps greater, if the second insurance be a fraudulent one.

Technically, it may be true that there is no second insurance; but to give this construction to the statute, would, as it seems to us, be indeed sticking in the bark. Such is not the usual mode of construing even criminal statutes. Our law against bigamy provides a punishment for one who marries having at the time another wife living. But, says this mode of reasoning, the second marriage is void, one cannot marry with a wife living. So, too, we make it penal to alter a promissory note; yet, in fact, the alteration is void, and if detected can hurt no one.

Laws are not to be so construed. We must look to the manifest intent of the law, and take care not to give it such a construction as will make the intent fail. The manifest intent in this law is to prevent the existence of persons in the community who have an inducement to set their houses on fire. To say that this law does not apply to the case of a man, who, in fact, has this inducement, but who, if his fraud is discovered, cannot get the benefit of it, is, as it seems to us, making the law of very little effect. We can easily see how this insurer might get the benefit of both policies. His failure turns only on his being found out. Perhaps, even now, this second company does not know of the existence of the first policy, and if the plaintiff recovers from the Home, he may yet sue the other. In a suit against them he would

Wallace vs. Tumlin & Stegall.

not be bound by anything he now sets up. Perhaps he can, notwithstanding his present plea, show that he did give the second company notice. Are they parties here? Do they know all he now admits?

We are clear that the taking out the second policy without the consent of the first company "voids the policy," and that the other fact, to-wit: that this second policy, as appears from the proof, is capable of being resisted and treated as null by the company that issued it, in consequence of the misrepresentations of the insured, does not help the case. Judgment affirmed.

C. WALLACE, Superintendent Western & Atlantic Railroad, plaintiff in error, vs. TUMLIN & STEGALL, defendants in

error.

1. Where a suit was pending in a Court of this State against the Superintendent of the Western & Atlantic Railroad, upon the Act of 24th of October, 1870, to authorize the lease of said road, and before said lease was consummated:

Held, Under the 8th section of such Act, which provides for the settlement of the liabilities of said road by a Board of Commissioners therein named, or until the claim has been verified by a judgment of the Court having jurisdiction of the case, that the Court having jurisdiction of the case may proceed, under such jurisdiction, to a hearing, and by an appeal to this Court, under the rules of law.

2. Where a suit was instituted against the Western & Atlantic Railroad for damages, growing out of a breach of contract, and the declaration alleged that the contract was in writing and had been lost: Held, first, The remedy, under the Code, section 3910, is cumulative, and does not deprive a party of his right to sue at law.

3. Where proof of a loss of an original paper is made before the Court, and he admits secondary proof thereof:

Held, Under sections 3714 and 3779 of the Code, questions of diligence in exhausting the means of information for primary evidence, accessi ble to the party, is one addressed to the sound discretion of the Court below, with which this Court will not interfere, except where it has been flagrantly abused.

Wallace vs. Tumlin & Stegall.

4. Where the evidence upon the breach of contract exhibits the fact that the plaintiff was to receive a certain price, and the amount necessary for the performance, after such alleged breach, is a matter of fixed computation, and the Court charged the jury on the measure of damages that plaintiff was entitled to recover the whole amount sued for, less what would have been his expenses in performing the contract: Held, That the actual damages which the plaintiff was entitled to recover, embraces the difference between the cost of doing the work and the price to be paid for it. The law requires the utmost good faith in relation to contracts, and where parties refuse to carry out contracts into which they have entered, the party injured may pursue his remedy for damages, and the measure of the damages for such breach or refusal to carry out the contract will be computed by ascertaining the profits of the enterprise, after deducting the legitimate and actual costs of its execution; and, in the view we entertain of the law of this case, the charge of the Court below was error.

5. When a motion is made for a new trial, on the grounds of newly discovered evidence, in the discovery of a letter, testified to as the contract of the parties, and such letter referred to matters of defense proven on the trial:

Held first, That applications for new trial on this ground, and the question of diligence and materiality, and whether it is cumulative only or goes to the impeachment of a witness, and whether it would have changed the result, will be closely, if not critically, scanned by the Court:

Held again, Where the newly discovered evidence is reconcilable with the other proof in the case, or if there appears, on the whole, sufficient evidence to support the verdict, the Court will not grant a new trial, especially where the Court below has violated no rule of law in submitting the case to the jury, and there is sufficient evidence to support it, and he has refused a new trial.

6. Judgment affirmed, with instructions to deduct from the amount of the verdict $200 per month, with the interest thereon for three years.

Effect of Repeal. Western & Atlantic Railroad. Secondary Evidence. Measure of Damages. Profits. New Trial. Cumulative Evidence. Before Judge HOPKINS. Fulton Superior Court. November Term, 1870.

In August, 1867, Tumlin & Stegall averred that, on the 1st of December, 1857, Spullock, then Superintendent of the Western & Atlantic Railroad, in his official capacity as such, employed them to supply with water a tank, at Shanghai

Wallace vs. Tumlin & Stegall.

station, on said road, for five years from the completion of the necessary works therefor, to-wit: An hydraulic ram, pipes and fixtures, all to be furnished by plaintiffs, for which Spullock, as Superintendent, agreed to pay them $1 00 per day, payments to be made per month; that they erected said works at a cost of $700 00, which were sufficient to perform the service for five years, and on the 1st of March, 1858, began to supply water, and continued so to do till March, 1860, when defendant discontinued the use of said tank and tore it down. Because they were ready to go on and were prohibited by defendant, they claimed pay, at said rate, for the whole time. They averred that this contract was in writing, but had been lost, that the defendant refused to pay on demand, etc. The defendant pleaded the general issue and Statute of Limitations, four years. The defendant's counsel moved to dismiss the suit, because it was based upon a lost instrument, which had not been established according to the statute for such cases provided. This motion was overruled.

Plaintiffs introduced evidence as follows:

LEWIS TUMLIN, one of the plaintiffs, testified as follows: In 1857 or 1858, Tumlin & Stegall, through me, made a contract with James M. Spullock, then the Superintendent of the Western & Atlantic Railroad. Said contract was reduced to writing, and signed. I had the writing in my possession, and afterwards (perhaps about 1861)-but I do not remem ber the year exactly-handed it to Hawkins F. Price, one of the members of a legislative committee appointed to investigate the affairs of the Western & Atlantic Railroad. He received it as a member of the committee, and not as a private individual. A copy of said contract was subsequently included in the printed report of said committee. The original is not now in my possession, and I know not where it is. I believe it to be lost. Have never seen it since I handed it to Price. I have inquired of Price for it several times, and he answered that he did not have it, and did not know what had become of it. Have not inquired of any other

Wallace vs. Tumlin & Stegall.

member of the committee, nor at any office in the StateHouse, nor had any search made among the papers of the Legislature. Have mentioned it to Campbell Wallace while he was Superintendent, who could neither find the original nor one of the reports containing a copy. He said he would get a copy of the report, if possible, but stated afterwards that none could be found, or that he had failed to find any. My impression is that Price was the person to whom I gave the writing-that is my best recollection. He was from my own county, (Bartow) and was on the committee. The contract, as agreed on and set out in the writing, was this: Tumlin & Stegall were to lay down pipes, etc., and keep up a running stream of water at Shanghai Station on the Railroad for the term of five years, for which the road was to pay them one dollar a day for the whole term, Sundays included, the days of each month to be paid for at the end of each month.

The plaintiffs went on to perform their part of the contract. They bought a piece of land with a good spring upon it, and by means of pipes carried the water from said spring to the station, about a hundred and fifty yards, and kept up a running stream for something like two years. The stream was still running when the tank was pulled down by the authorities of the road, and the plaintiffs were ready and willing to have kept it running from that time to the end of the five years. The works as then existing were apparently sufficient, without other expense than the wages paid Mrs. Reeves for attending to them, to supply the stream for the whole term. The plaintiffs paid Mrs. Reeves about two dollars per month. Her business was to see that no trash washed into the pipes, and that the stream was kept running. She was employed and attended to the business as long as the tank stood and the road would use the water. The plaintiffs gave no consent to the act of the road in taking down the tank and ceasing to receive water.

The land purchased was either ten or forty acres, I do not