Volume 1 — Charlton's Georgia Reports

<p> Indictment for a nuisance, in keeping a common Gambling House. Verdict for the State and motion for a New Trial. </p>

<p>On an indictment for keeping a common gambling house, presumptive evidence that the defendant is the keeper of the house is sufficient to convict.</p>

<p> Bill for Discovery and Relief. </p> <p>liinumr.</p>

<p>A verdict deafly against evidence, may be set aside. But an application for this purpose will not be favorably received, where there has been conflicting testimony.</p> <p>It is a question of law for the Court to determine, as to what constitutes a sufficient acknowledgment to take a case out of the statute of limitations.</p> <p>An admission from which an existing debt may be necessarily inferred, is sufficient to take the case out of the Statute, though it be accompanied with an express denial of the debt.</p> <p>A motion for a new trial on the ground of surprise, will not be sustained, where by the exercise of proper diligence, such surprise might have been guarded against.</p>

<p> Minutes of Superior Court, letter F. p. </p>

<p> Case, verdict for Plaintiff, and motion for New Trial. </p>

The attorney .general having been previously notified, Mitchell and Bulloch, attornies for William Chauvin, moved the court to quash that part of the presentments of the grand jury of the present term of the Superior court, which related to the said William Chauvin, and which is in the following words, viz : — “ We feel it a duty to present as a grievance, the violent behaviour of William Chauvin to his wife, and his separation from her, conceiving that the example may have…

<p> Debt on Judgment, verdict for Plaintiff, and motion for a New Trial. </p>

At January Term, 1805, Marco Monaquo and Joseph Segar, two Spaniards, were tried for the murder of one Georges Martin. Joseph Segar was charged in the indictment as a principal in the second degree. The attorney general produced in evidence the dying declarations of the deceased, taken before Charles Harris, Esq. Mayor of the city of Savannah, and Sheftall Sheftall, Esq. justice of the peace.

<p> Appeal from the Court of Ordinary. </p>

<p>In an action against a bailee, the question of negligence, is a question of law for the Court to determine.</p> <p>But the facts from which it is, or is not inferred must be found by the Jury.</p> <p>In contracts for conveying goods on freight, there is an implied undertaking by the carrier that he has a competent knowledge of the navigation, and he will be liable for a loss occasioned by a want of such knowledge.</p>

<p>No private contract, nor extraordinary trouble, can authorize the Sheriff to receive other or higher fees than are prescribed by law.</p> <p>ft seems that the Sheriff is entitled to charge the legal fee for dieting negroes, levied on by him under execution, although such negroes were allowed to remain in possession of defendant, and no subsistence was furnished by the Sheriff.</p> <p>In such case, the Court will not grant an attachment against the Sheriff, to compel him to bring into Court the money retained by him to answer this charge, but will leave the party to the prosecution of his ordinary remedy, by action.</p>

HABEAS CORPUS. The prisoners having been brought up yesterday, and it appearing that they were detained under an order of the court at the last terra, upon the suggestion of the attorney general, that they were charged with highway robbery ; and it also appearing, that an indictment had been preferred at the term of January preceding, for the aforesaid robbery, against the prisoners ; and that they at the last terra, to wit, on Saturday, the 4th day of May, in said town,…

<p>An ordinance of the city council of Savannah, passed under the authority of an Act of the Legislature of Georgia, imposed a tax on all goods, &c. not the produce of the Slate, sold on commission by any peison residing within the city : held, that such tax was not an impost or duty on imports, but that it was a legitimate exercise of the power of a State to regulate its internal commerce.</p> <p>The same ordinance required the city Treasurer, in default of any person to make his return of such sales within the time prescribed, to assess the value of goods sold by said defaulter, from the best information he could obtain, and to issue his warrant of distress for the amount of such assessment; held, that such arbitrary assessment was violative of private right, unauthorized by the State law, and unconstitutional.</p>

<p>INDICTMENT FOR A MISDEMEANOR IN RECEIVING STOLEN GOODS.</p>

<p>A Bank was incorporated, with the power to appoint necessary officers, to take bonds from them, and to make all necessary by-laws, rules and regulations. By one of the by-laws of such corporation it was provided, that it should be the duty of every other officer of the Bank, to perform such services as might be required of them, by the President and Cashier. In an action against principal and sureties, on a bond given by a bookkeeper of said Bank, conditioned for the faithful performance of the duties of his office, and all other duties required of him in said Bank, $*c., held, that the bond was taken in conformity to, and authorized by the charter.</p> <p>And where such bookkeeper, whilst in the discharge of “ other duties in said Bank,” fraudulently took large sums of money therefrom; held, that the securities on his official bond, were liable to the amount of their bond.</p> <p>The failure of obligee to notify to the securities of the obligor, the delinquency of their principal as soon as discovered, will not relieve them from their obligation.</p>

<p>INDICTMENT FOR A MISDEMEANOR IN RECEIVING STOLEN GOODS.</p>

ON the petition and affidavit of Walter Roe, for a certiorari to remove the proceedings of the city council of Savannah, on an information and fine on said Walter Roe, for a breach of the quarantine law ; it is ordered, that the proceedings of said council and their officers in the premises, be suspended until argument is had on the said application before me, on Friday next at 12 o’clock ; that the recorder have notice to attend, and that the said Walter Roe give,…

<p>APPLICATION FOR A CERTIOR4RI.</p>

<p> Claim, Special Verdict. </p>

The objections and arguments that have been urged against granting a certiorari, are, 1. That the judge of the Superior Court has no power to make an order to suspend the proceedings of the corporation ; or in other words, that the Superior Court has no jurisdiction over the city of Savannah. 2. That the law is conditional. 3. That the court has not the power to decide whether the law be constitutional or not. 4.

<p>What a witness who is since dead, testified in a former action between the same parlies, when the same point was in issue, may be proved in a second action by one who heard him give evidence.</p> <p>But the witness must be competent to speak to the whole, and not to a part only of the testimony of deceased witness.</p> <p>Quccre, If the second witness must be required to repeat the very words or the substance only of such testimony *?</p>

<p> Debt on Bonds—Z Cases reserved from Camden County. </p>

Agreeably to. a previous order, Mr. Noel now proceeded, in behalf of himself and the city marshal, to show cause why an attachment for contempt sho.uld not be granted against them. , Noel, Mayor, Had I been required, by the order of this court, to answer the charge of a contempt committed as a private citizen, the delicacy of my situation, whether justly chargeable or not, must have deeply impressed my mind.

<p> Attachment for Contempt. </p>

<p>A party to a negotiable instrument may testify to facts which do not prove it to have been originally void; as payment, &c.</p> <p>If the witness can neither gain nor lose. by the event of the suit, and the v erdict in the case, cannot be given in evidence either for or against him, he is competent to testify. All other objections go to his credibility.</p>

<p>J. E. W., one of tlie mercantile firm, of J. E. W. & Co. of Savannah—(whose commercial house was in Liverpool,) whilst in the latter place, drew his individual bill in favor of the Plaintiffs on his house in Savannah, who accepted the same; but afterwards suffered it to be protested for non-payment: held, that the payees of said bill were entitled to take out process of attachment, against the individual estate of the non-resident drawer, as draiocr, in addition to the remedy by action against the firm of J. E. W. & Co. as acceptors.</p> <p>The payee or indorsee of a bill of exchange, may in default of payment, sue all the parties to it at the same time, and an action against one, will not debar his remedy against the others.</p> <p>And such payee or indorsee may maintain his action against the drawer, without previously suing the acceptor.</p>

<p>Funeral expenses, regulated by tlie circumstances of the deceased, and the usage of the country, constitute a lien or debt on the estate of the deceased, superior to all other claims.</p>

<p>Where an action is brought on the official bond of a Sheriff in the name of the Governor of Georgia, in being, who is individually designated, and such Governor dies pending the action, it is not necessary to amend the suit, by the substitution of the name of his successor.</p> <p>Can such bond be put in suit, without the previous order of the Judge of the Superior Court— Qucvre.</p>

<p>Minutes of Superior Court, letter F. p. 158.</p>

<p>CAVEAT, AND APPEAL TO THE SUPERIOR COURT, FROM THE COURT OF ORDINARY.</p>

<p>Minutes of Superior Court, letter F. p. 224.</p> <p>Digest, 217.</p> <p>2 Tuck. Blk. 304.</p> <p>4 Coke, 51. 3 Mod. 64. loll. Law of Errors, ⅜5 — 87.</p> <p>11 Viner, Ab. 92. 182. et note to Wood’s Inst. 349.</p> <p>Price v. Parks. ISid. 280. Thomas vs: Butler. 1 Vent. 219, Cited in 3 Bac. 55. et vid. Go-dolph, 230.</p>

<p>The equitable powers of the Superior Courts of Georgia in supressing frauds, will be exercised in aid of a mortgagor, seeking to be relieved from a usurious contract, notwithstanding that the judiciary act points out a method by which he may, at common law, dispute the sum due.</p> <p>On the application for an injunction, a Chancellor may go into the consideration of the merits» as disclosed in the bill, and which are instrinsic and dependent upon its express allegations and charges.</p> <p>Though a bond and mortgage have been assigned, if the bill alleges that such assignment was colorable, and that the assignee had notice of the usury pervading the original contract, in the absence of a specific reputation of such allegations, the Court will grant an injunction.</p>

<p>Minutes of Superior Court, letter F. p. 225.</p> <p>Act 23d Dec. ,1189.</p> <p>2 Bac. Ab.385, 386. 11 Viner, 67. 107.</p> <p>2 Bacon, 386. 3 Dyer, 372 2 Shower, 399. 1 Vernon, 200;</p> <p>Dig. 217.</p> <p>2 Eq. Ca. Ab. 423. pi. 5.425. pi. 15.</p> <p>n Viner, 88. pl‘ 25' 3‘</p> <p>nvin, 88 pi. vvjik¡nsoninTSí Calls. Rep. I,</p> <p>3 Mod 58. Sta. 22 and 23 Car. Swinb. 224.</p> <p>2 Bl. 509.</p> <p>Dig, 21T. Sec.l.</p>

Exceptions taken by Henry Putnam to the proceedings had before William Smith, a justice of the inferior court of Chatham county, and John Pooler, a justice of the peace of said county, on a claim made by Eliza H. Scofield against the said Henry Putnam, for a forcible entry on the 4th of March last, on lot No. 37, Washington Ward, city of Savannah. 1.

<p>A creditor who had obtained judgment against one co-partner in his individual capacity, which judgment was anterior to the co-partnership, has the right to levy on the partnership effects, and to sell his debtor’s interest therein, without reference to the claims of the creditors of the firm.</p> <p>Such judgment being a lien on all the propery of the debtor, which ho had at the time of the signing thereof, or which he might thereafter acquire, supersedes the claims of all subsequent creditors.</p>

<p>5 Richard 2. c. ¡Lcí^i/ílHcnry oici9‘</p> <p>3 Bacon, 256, Rep C'l42 Sit vs. Wanlope.</p> <p>Const State Geo. 5 Sect.of</p>

<p>Minutes of Superior Court, letter F. p. 221.</p>

Upon the petition of Benjamin Burroughs, and Oliver Sturges, on the part and behalf of George, a free man of co-lour. stating, that the said George is now in confinement, in the common jail of the county of Chatham, under sentence founded upon a conviction for inveigling, or attempting to inveigle a negro; which said conviction was had before Balthazar Shaffer, Ulric Toiler, and John Pooler, Esqrs. justices of the peace of the said county, and a jury by them selected ; and…

<p> Indictment Burglary—Verdict—Guilty of stealing from the dwelling House. </p>

<p>Indictment for Burglary, Verdict—“ Guilty of Larceny by privately stealing in the house.</p>

<p>Where an offer of guarantee is made, accompanied with, a request for an answer, in order to make it binding upon the individual offering, it is necessary that he be informed by the person to whom it is offered, of his assent to such offer.</p> <p>Where no such assent is signified, and the note of the individual for whose benefit the guarantee was offered, is taken by the creditor after the debt or liability which formed the subject matter of the offer, has been incurred, it is a complete waiver of the guarantee.</p>

<p>A defendant lias a right to demand the trial of the caiTse, unless it can be continued on legal grounds, and the Court will not continue the cause from motives of delicacy, in opposition to such right.</p> <p>It is not a sufficient ground for continuance of a cause, that the presiding Judge had in another capacity, expressed an opinion on one of the points involved.</p>

<p> In Equity—Bill for an account—Discovery and injunction. </p>

IN EQUITY. The bill in this case states, that the Rev. Edward Ellington, late of the city of Savannah, was in his life time, and at the time of his death, possessed of $10,000 ; that he died in 1796, intestate, leaving no heirs lineal or collateral entitled to his estate ; that in consequence of his thus dying intestate and without heirs, his estates became vested in the state, by virtue of the escheat act ol 1801, Laws of the state of Georgia, and a right accrued to the…

<p> Appeal from the Court of Ordinary. </p>

<p>If an. appeal be entered from the verdict of the Petit Jury, although it is prudent to enter up final judgment, within the four days after the adjournment of the Court, an omission to do so will not defeat the verdict, upon such appeal being set aside or withdrawn.</p> <p>The judgment may be filed, nunc pro tunc¡ after the appeal is set aside.</p>

<p>The necessary equipments of a militia soldier, the implements of trade, necessary wearing apparel, and bedding for self and family, cannot be made liable for debt by any process, particularly a distress warrant.</p>

Proceedings removed into the Superior Court by cer-tiorari . It appears, from the proceedings in this case, that an attachment was issued on the 3d ot February, 18Ó2, and by a return of the sheriff, that he did attach some dry goods, and a negro boy, and served J. M Mounox (a garnisher) with a copy on the same day.

<p>A Court of chancery, on sufficient grounds being shewn, will remove a trustee under a marriage settlement, and appoint a new one. v</p> <p>If the original trustees are dead, the fact that the representative of one is temporarily absent, and the representative of the other unwilling to act, is not per se,, sufficient to justify the substitution of new trustees. The Court has power to compel such representatives to assume the trusts.</p> <p>But the Court may with the assent of all parties, substitute new trustees.</p> <p>But to justify the removal of such representatives as trustees, their refusal or incapability must be shewn, either by answer to the petition for substitution, by affidavits of petitioners, or ne* gleet of representatives to shew cause, on proper citation.</p>

<p>A copy of a receipt is not admissible, without proper notice to produce the original, or proof of its loss or destruction.</p> <p>Upon an issue formed between an insolvent debtor and his creditors, of “fraud or not fraud,” the Jury should find the affiimative or negative of the issue. A general verdict of “ guilty” is improper and illegal.</p> <p>The “ Inferior Court” as established by the Constitution of Georgia, and distinguished from other inferior judicatories ordained and established by the General Assembly, has the power to grant new trials.</p> <p>The Constitutional writ of Certiorari is applicable to the errors of inferior jurisdictions, contra-distinguished from the “ Inferior Courtthe Judicial writ of Certiorari is-alone applicable to the Inferior Court” as before distinguished.</p> <p>The necessity of exceptions and 20 days notice applies only to the judicial writ.</p> <p>It seems, that where improper evidence has been received by the justices of che Inferior Court, on the trial of an insolvent debtor for fraud, or where the'Jury have not found a verdict conformable to the issue, upon the refusal of said justices to grant a new trial, a mandamus to them will be awarded.</p>

CERTIORARI. This was a rule to show cause why a writ of certiorari should not issue, to remove this case and its proceédings from the mayor’s court.

<p>APPEAL.</p> <p>This was an action of trespass on the case, brought by the plaintiff, Thomas Gibbons, against the defendant, John Gibbons, and the declaration states, “ That John Gibbons, Tax Collector for the county of Chatham, hath, in quality of tax collector, claimed of the plaintiff, under the tax laws of this state, the sum of thirty-six dollars for taxes on two lots, Nos. 8 and 9, in Franklin Ward, within the city of Savannah.” The plaintiff then avers, “ that he hath not the fee simple in the said lots, but only a leasehold, and that the fee simple is in the corporation of the city of Savannah, for and in behalf of the whole body of citizens in the said city ; that in and by the laws of this state and custom immémorial the city were not at any time liable to pay the state any tribute or tax prior to the leasing of the said property ; and that the plaintiff by becoming a lessee hath not varied the principles or changed the right of exemption.” The declaration then concludes, “that the defendant is not ignorant of the premises lqvied on said lots to the amount of $36, and great injury done to the plaintiff, &c.”</p> <p>The second section of the ordinance of the corporation of Savannah, passed the 2Sth September, 1790, ordains, 1. That the city lots shall be sold in arithmetical progression, at public auction ; 2. That they shall be set up at a valuation contained in a schedule ; 3. That the sum bid upon that valuation shall be considered as increase money, and paid down in cash, and that the highest bidder of increase money shall J be considered the purchaser.</p> <p>4. That it shall be at the option of the purchaser to pay the valuation and increase money down, or to retain the valuation in his bands, or the hands of his heirs and assigns for ever, on a ground rent of 5 per cent. But that it shall be in the power of the purchaser, his heirs or assigns, to pay in the valuation money, with the rent then due, and extinguish the ground rent.</p> <p>below, purchased upon these conditions the city lots, Nos. 8 and 9, and he now resists the payment of the state tax upon these lots, upon the ground of his being only the lessee of the corporation.</p> <p>He contended, that the deed of conveyance from him to the corporation created only a leasehold estate, so long as he thought proper to pay a ground rent of 5 per cent, quarterly, upon the valuation money, according to the terms of his deed, which recited the conditions of the ordinance of 1790 ; and that until the ground rent was extinguished by the payment of the valuation money, the fee simple vested in the corporation, of Savannah ; which by custom and the law could not be liable to the payment of the public taxes.</p> <p>The plaintiff below states in his declaration, that John. Gibbons, then tax collector of Chatham county, claimed $36 for taxes on lots No. 8 and 9, situated in Franklin Ward, in the city of Savannah ; that he hath only a leasehold estate in the said lots ; that the fee simple is in the city of Savannah ; that by the laws of this state and Custom immemorial the city was not liable at any time, to pay the state any tribute; that he as a lessee had not varied the principle of exemption ; and that the defendant below hath levied on the premises to satisfy the aforesaid assessment.</p>

<p> Habeas Corpus. </p>

<p>A person charged with a felony in another State, and fleeing to this, may upon a principle of comity between sovereign States be detained for a reasonable period, for the purpose of af fording an opportunity to the proper authority, to demand the prisoner.</p> <p>Where a felony of a high grade is charged upon a prisoner, it rests in the sound discretion of the Court, whether he shall be admitted to bail, and where on such a charge, the affidavits against him are very positive, and there are no extrinsic circumstances in his favor, bail will be refused.</p>

<p> Habeas Corpus. </p>

HABEAS CORPUS. Major Edward White, had been appointed in the year -, Clerk of the Court of Ordinary of Chatham County, and received a commission for that appointment, from the then governor of Georgia.

<p>The references of a bill in chancery are a part thereof. Where a bill in chancery, seeking an injunction, refers to another bill pending in same Court, in pari materia, and intimately connected with it, the Court may invoke the allegations of the latter bill and the answer thereto, in deciding upon the prayer of the former.</p> <p>The powers of the u Superior Courts” of Georgia, as Courts of equity, are co-extensive with those of a Court of chancery in England.</p> <p>Is a Jury required by law in a chancery case in Georgia.—Qucere.</p> <p>The Judge of the Superior Court acting as Chancellor, has the power to appoint a master in chancery, pro hac vice.</p> <p>And where the title is in dispute, and facts are necessary to be ascertained to determine such dispute, it will be referred to such master to examine and report thereon.</p>

JUDGMENT. It is stated, that the plaintiff obtained a judgment in the inferior court, od the 24th February, 1801, against the late James Mossman, on his bond, dated 23d May, 1775, conditioned for 297 dollars. The judgment was for the penalty, the principal, and interest, on that day, amounting to the penalty, to wit, for 5956 dollars and 20 cents. On this judgment the plaintiff issued execution, and claimed interest on the judgment up to the time of payment.

<p> Habeas Corpus. </p> <p>THE prisoner being brought up, his counsel moved that he be admitted to bail upon the grounds, that it appeared from an examination of the affidavits returned, as taken before the com- . • mitting Magistrate, and the Coroner, that the offence- with which the prisoner stood charged was manslaughter,-and-that if such should not be the impression of the Court, yet there was a presumption of innocence, and many favorable circumstances, which called upon the Court to exercise its discretion, to the extent of the prisoner’s application—and that he was prepared to give any bail and security the Court might require.</p>

<p>Minutes of Superior Court, letter F.p. 375.</p>

<p>If the mortgagee of personal property fail to record his mortgage, a bona fide purchaser, claimiug under mortgagor without notice, will be entitled to retain the property.</p> <p>A purchaser for valuable consideration without notice, actual or constructive, will be pro* tected, though he purchase from one who had notice.</p> <p>Possession of personal property is prima facie evidence of title.</p>

<p>HABEAS CORPUS.</p>

<p> Indictment passing Counterfeit Bank Notes. </p>

JUDGE. Thomas U. P. Charlton, now one of the Judges of the Superior Courts of this state, and presiding in this court during the present term, having, when a member of the bar, been retained as of counsel for the defendant, William Smith, it is contended* that that is a species of interest contemplated by the act of the General Assembly, authorising the interposition of the justices of the inferior court, in ajl cases where the judge of the Superior Court is a ‘‘party, or…

<p>Minutes of Superior Court, letter F. p. 420.</p>

ADMINISTRATION. Br an order of the 9th January, 1806, administration on the estate of Thomas and William Smith was granted by the court of ordinary unto Susan M. Smith, widow of William Smith, and Joseph Welscher, a creditor of Thomas Smith. On the 6th February, the court, being notified of the death of Joseph Welscher, one of the administrators, directed a settlement of his accounts by his attorney, and the administration bond of the said William Welscher to be cancelled.

<p>The presentment of a Grand Jury, will on motion, founded on sufficient reasons, be expunged from the minutes.</p> <p>The justices of the Inferior Court are eligible to legislative and military appointments, in addition to their judicial duties, and if so elected, and the respective duties happen to be contemporaneous, may elect which to perform.</p>

<p>Minutes of Superior Court, letter F. p. 460,</p>

<p> Indictment for passing Counterfeit Forged Notes. </p>

IN EQUITY. This was a bill in equity, stating, that several judgments had been obtained at law, against the complainant, Paul Grimball, for nearly 5000 dollars, while he had a judgment in his favour for 8000 dollars, suspended by an appeal; that executions had been issued against him,'and a sale threatened, which, if it took place, would prove ruinous to the complainant, inasmuch as nearly double the property would be sacrificed now, at a forced sale, which it would have…

<p>Minutes of Superior Court, letter F. p. 521.</p>

GARNISHEE. In this case returns were made by garnishées residing in different counties, and upon motion of Davis and Berrien to enter up judgment against them for the amount of their returns, it was objected by Harris, for the garnishees, in arrest of this motion, that the 3d section of the attachment law was unconstitutional, because no person could, (except in the case of joint obligors,) be sued out of the county in which he resided : and these garnishees resided in the…

CHARTER PARTY. This was an action of covenant brought upon a charter party, signed and sealed thus, — “ Thomas and Robert Newell. A verdict has been rendered for the administrator, and a motion is now made to arrest the judgment, upon the ground, that one partner cannot execute a deed to bind the other.

BLACK ACT. This indictment is founded upon the 9th Geo. 1, common» ly called the Black Act, passed 1722. It was moved by Mitchell and Bulloch, to quash this indictment for the following reasons : 1. Because the statute 9 Geo. 1, is inapplicable to our country, and contrary to the nature and genius of our government. 2.

<p>Minutes of Superior Court, letter F. p. 351,</p>

<p>.. , Minutes of Superior Court, letter F. p. 543.</p>

CERTIORARI. The petitioners, Samuel and Charles Howard, obtained a rule to show cause why a writ of certiorari should not issue, to remove into the Superior Court the proceedings of the corporation against them, upon the following grounds : 1.

<p>Liberty County. — Superior Court.</p>

<p>A manumission subsequent to the Act of 1801, not sanctioned by legislative authority is abso* lutely void, and produces no change in the condition of the slave.</p> <p>Penal statutes cannot have a retrospective operation.</p> <p>The Act of 1818, passed in relation to the attempt to manumit slaves illegally, being a penal statute, cannot be so construed, as to accumulate the penalties of the statute of 1801 to an act committed before the passage of the former statute.</p>

<p>S. was a co-partner with M. under the firm of M. & S., and with T. under the style of S. & T.: after the death of S., M. as surviving co-partner of M. & S., suedT. at common law, as surviving co-partner ofS. & T., upon transactions which had been held between the two firms in the life time of S.—held, that such action could not be maintained.</p> <p>As a general rule, one partner cannot sue another at common law.</p> <p>The same person 'cannot be plaintiff and defendant in the same suit, at common Taw.</p>

<p>HABEAS CORPUS.</p>

<p> In Equity—Petition for a, rehearing. </p>

<p> Ejectment, Special Verdiet, Judgment of the Court and Appeal. </p>

<p> Sci. fa-, against Bail. </p>

<p>The practice and rule of Court requiring that a bill of revivor should be filed, to make the legal representative of a deceased complainant a party to the suit in chancery, may be waived by agreement between such representative and defendant.</p> <p>And a replication will be dispensed with under similar circumstances.'</p> <p>An agreement to submit the controversy to arbitration, is an admission that the pleadings in the cause are perfect. When the proper pleadings have been dispensed with by agreement between the parties, they may be entered at any time, nunc fro tunc, for the sake of the record.</p> <p>A Its pendens, either in chancery or common law, may be submitted to arbitration by agreement. without an order of Court.</p> <p>And where by the agreement entered into, the award was to be made a rule of Court, and judgment entered thereon, and judgment was entered without objection, all pre-requisites will be presumed to have been complied with.</p>

<p> Petition to establish lost Notes. </p>

<p>Money may be taken in execution, if in possession of defendant.</p> <p>Where money is made by a Sheriff at the suit of A. who has a legal or equitable claim to it, the Court, on the return of the writ, will, on motion, direct the Sheriff to pay the money oyer to an execution against A.</p> <p>And when such money was made at the suit of A., as administrator of B., the Court will direct it to be paid over to an execution against A., as administrator of B., where it appears to bo the eldest j udgment against the estate of B., and no interfering or conflicting claims by administrator or other parties are shewn to exist.</p>

<p>Minutes of Superior Court, letter G. p. 345.</p>

<p> Case from Liberty County. </p>

HABEAS CORPUS. John Lorton, Martin Welch, Francis Corderin, and James Smith, were this day brought up agreeably to the mandate of a writ of habeas corpus, directed to P. C. Wederstrandt, Esq. Commander of the United States’ Brig Argus, now lying in the river Savannah : Upon which writ the following return has been made, viz. “ I have the bodies of John Lorton, Francis Corderin, Martin Welch, and James Smith, as within commanded, who were seamen, and late on board the Brig…

<p>An entire contract connot be divided for the purpose of maintaining several suits, and bringing them within the jurisdiction of a Magistrate,</p>

<p>Minutes of Superior Court, letter G. p. 2.</p>

<p>Minutes of Superior Court, letter G. p. 10.</p> <p>Sayre’s Rep. 160‘</p>

<p>The death of one defendant to a suit in equity, only abates the proceeding quoad him.</p>

<p> Appeal from the Court of Ordinary. </p>

<p>INSOLVENT DEBTOR.</p>

<p>Minutes of Superior Court, letter G. p. 83.</p>

<p> Minutes of Superior Court, letter G. p. 83. </p>

<p>Modem decisions of Courts of England, subversive of the ancient common law, or Statutory principles adopted in Georgia, are of no authority m this State.</p> <p>An action for a malicious prosecution, in cases of/e/ont/j cannot be maintained, without previously obtaining the order of the Court for a copy of the Indictment.</p> <p>Felony, in Georgia, is the commission of a crime, which subjects to infamous punishment. Forfeiture of lands or goods, is not in Georgia, a component part of the punishment offelony. Perjury is felony, under the criminal laws of Georgia.</p> <p>Perjury at common law is abrogated in Georgia.</p> <p>An action for a malicious prosecution cannot be sustained in Georgia, on an indictment for per* jury at common law.</p> <p>To bring an offence under a statute, one of these two courses must be adopted: to prefix to the general conclusion, “contrary to the form of the statute in such cate made and picvidcd,5* or, to recite the tenor and substance of the statute, upon which the indictment was founded.</p>

<p>Minutes of Superior Court, letter G. p. 94.</p>

<p>Service of petition and process on agent of defendant is null and void, under the law of Georgia. Where the service of process is null and void, appearance and plea t© merits will not cure it. And objection may be taken to such process at any lime.</p>

<p>Any Judge of the Superior, or Justice of the Inferior Court in Georgia, (without reference to the residence of defendant,) may issue the fiat for the foreclosure of a mortgage of persona* property.</p> <p>When suchjiai is granted by a Judge of the Superior Court, the Clerk of the Superior Court of a different County and Circuit from that in which ilaefiat was granted, may issue the execution.</p> <p>And it seems, that the execution may be directed to all and singular the Sheriffs of the State.</p> <p>In general, a statute which introduces a new rule of law, and directs a particular method of proceeding under it, will, although it has no negative words, debar any other mode.</p> <p>Where one section of a statute without negative words, introduced a new mode of foreclosing a mortgage of personal property, and pointed out a method by which the mortgagor might dispute the sums due on the execution founded on such foreclosure, and a subsequent section of íhe same statute, also without negative words, allowed a defendan to make an affidavit of illegality in all cases where execution had issued illegally; held, that the remedy in the latter section was not cumulative to the former, and that it referred to executions, other than those mentioned in the first section.</p> <p>Jt seems, that under the mode prescribed by the 18th section of the Judiciary Act of 1799, the mortgagor may enter into any defence which may entitle him to relief from the executioi).</p> <p>There is nothing unconstitutional in said section.</p>

<p>Minutes of Superior Court, letter G. p. 120.</p> <p>(Case reserved from Bryan county.)</p>

<p>The Judges of the Superior Court in Georgia have a discretionary power, (governed by the cir cumstances of the case ) to bail in all cases whatsoever.</p> <p>It is not a sufficient ground for bail that the verdict of the Coroner's Jury does not charge the prisoner with felonious homicide, if the affidavits and depositions taken by Coroner and the committing Magistrate, taken in connexion with the verdict, shew that a felony has been committed, or is charged.</p> <p>And where on such charge, it appears that the prisoner has confessed that the death was caused by him, he will not be bailed, unless there be the existence of some special cause to induce it.</p> <p>Though the prisoner on hi& trial is entitled to have the whole of his confessio i given in evidence, if any pan is offered, yet on applicaii ms for 6ai/, the excu'puory circumstances stated by him in such confession, will not be sufficient to sustain the application, unless supported by other testivn my, or stro \g intrinsic presumptions of their truth</p> <p>A person charged wi'h felony cannot make, the omission of a public officer to prosecute at the succeeding term, a ground for bail, unless such omission has'operated or may operate oppressively.</p>

<p>Minutes of Superior Court, letter G. p. 201.</p>

<p>The Jail in the City of Savannah, must, under the Legislative Act of 1822, taken in connexion with prior acts and circumstances, be considered as the County Jail, and as such, liable to che control of the Legislature, and the possession of the Sheriff.</p> <p>If a party & return to an alternative mandamus, shew cause against the admission or restoration'bf a person to an office on the ground of non -election, he must make a direct and issuaable denial of t her fact.</p> <p>Private Corporation* er.nnm he deprived of their franchises, but by ajudicial judgment upon a quo warranto, but public Corporations created for the purposes of City government, may be controlled and have their Con-'titutions amended and altered by the Legislative power.</p> <p>If a statute destroys the character in which persons have acted in a civil or public trust, without pointing out a new mode in which the trust is to be performed, the latter is also atan end. If a Corporation he dissolved or surrendered, the offices under it share its fate.</p> <p>The Legislature have power to destroy all offices, (except those held by Constitutional officers,) which are made for Civil government, and thus to put an end to the functions of the incumbents, before their term of office shall have expired.</p>

<p>Minutes of Superior Court, letter G. p. 208.</p>

<p>(A case reserved from Camden county.)</p> <p>ADMINISTRATION.</p>

<p>If the capital of a Bank cannot be usefully employed in loans, there can be no objection to investing a portion thereof in the purchase of its own stock. And the Directors of the Bank have a right to dispose of the stock so purchased by them.</p> <p>And on the re-sále of such stock, the Stockholders of the Bank have no right to a preference in, the purchase.</p> <p>The Managers or Directors of the affairs of a Corporation cannot be considered as Trustees, or prohibited as such, from the purchase of the trust property or stock, belonging to the Corporation.</p> <p>In general, an injunction will not be granted ex parte and before answer.</p> <p>But in cases of great urgency, or where irreparable injury may ensue, as in waste, &c- r where the application follows quickly after the injury complained of, the Court will grant the injunction without notice, or appearance, or subpoena served.</p> <p>And it will not be granted ex parte and before answer, where it would deprive defendant of a right, for which no redress could be given, and where its refusal though productive of possible injury to complainant, could not divest him of any right.</p>

<p>Minutes of Superior Court, letter G. p. 135.</p> <p>(Case reserved from Glynn county.)</p>

<p>Minutes of Superior Court, letter G.p. 216.</p>

<p>Minutes of Superior Court, letter G. p. 217.</p>

<p>Minutes of Superior Court, letter G. p. 221.</p>

<p>In Equity, the payment by, or tho release and discharge of one joint debtor, will not operate aa a discharge of the debt as to all, unless the intention of the parties and the justice of the case require such a construction of the payment.</p> <p>A surety who pays the debt, is entitled to be substituted in the place of the cieditor, as to all the security or means possessed by him, against the principal debtor, and all the co-sureties.</p> <p>A judgment creditor who has given indulgence to his debtor, for 1, 2, and 3 years, upon a mort* gage being executed by a third person to secure the payment of such judgment, has a right to proceed on his judgment to collect the instalments as they become due.</p> <p>If a specific consideration bé mentioned in a deed, proof of another consideration inconsistent with that mentioned, is not admissible.</p> <p>But under the words “ divers good and sufficient considerations,” any sufficient consideration may be shewn.</p>

<p>Minutes of Superior Court, letter G. p. 229.</p>

<p> Habeas Corpus. </p>

<p>Minutes of Superior Court, letter G. p. 246.</p>

<p>Minutes of Superior Court, letter G, p, 251.</p>

<p>Relief may be granted under the'general prayer of a bill, where it is consistent witli the case made by the bill, and not inconsistent with the specific relief prayed.</p> <p>The doctrine of the equitable lien of vendor of land for unpaid purchase money recognized, where no title had passed, and the intention of the parties to look to the property itself, was manifest.</p> <p>And where no title had passed, the lien will be preserved against purchasers by act of law, as assignees of a Bankrupt, and creditors claiming under a conveyance from vendee.</p>

<p>CASES REMOVED BY CERTIORARI.</p>

The prisoner being brought up, Jones, of counsel for him, moved for his discharge upon the irregularity of the warrant, and the chief grounds assigned by him were, that it had no seal, and that it did not specifically charge any offence.

<p>Where a defendant answers part of a bill, such answer will over-rule a demurrer on the record, or ore ienus, going to tho whole bill.</p> <p>If the cause assigned on the record for demurrer bo bad or insufficient, other cause may bo assigned ore ienus.</p> <p>A. creditor at large, or one whose debt has not been carried to judgment, cannot call upon a Court of Equity to afford its aid in setting aside conveyances, alleged to bo voluntaiy and fraudulent, made by the supposed debtor, of his property.</p> <p>Giucerc, if a bill charges combination, must a demurrer so far answer as to deny the charge,</p>

<p>Minutes of Superior Court, letter G. p. 257.</p>

<p>If a case is made out in which a Court of Equity gives relief, a demurrer cannot be sustained ¡Secus whore the equity of píáiníi/Fis not stated with sufficient certainty.</p> <p>There was no law of Georgia in force in 1795, requiring a deed oí personal property to Imí recorded.</p> <p>A purchaser cannot be bound by the constructive notice afforded by the record of a deed, not required by law to be recorded.</p> <p>Whore upon a bill for discovery and relief the discovery sought will afford no ground for equitable relief, a demurrer to the relief is good to the discovery also.</p>

<p>Minutes of Superior Court, letter G. p. 261.</p>

<p>It seems, that if a party seek to avail himself of an error of the Court, so as to-carry up hie case by cortiorari, he must reduce his exceptions to writing at the time, and tender them, during the trial.</p> <p>And where no exceptions had been tendered during tire term, but were presented to the individuals composing the Court, separately, and on succeeding day, and were thus signed by them, and such exceptions were contradicted by a statement signed by the same Judges, the rule was refused a upon the great irregularity of the proceedings.”</p>

<p>All persons materially interested in the subject matter of the suit, must be made parties to tr "bill in equity.</p> <p>But this rule is to be enforced under the discretion of the Court, and is subject to exception and modification, according to the circumstances of the case.</p> <p>The common exception in favor of creditors and legatees, will not extend, -unless under special circumstances, to residuary legatees or distributees, all of whom must be made parties.</p> <p>Where a bill seeks discovery and relief only against the acts of one of the executors of an estate, it is not necessary to make the other executor a party in the first instance.</p> <p>But it seems, that the co-executor may be made a party, during the progress of the suit, if it shall prove to be expedient or necessary.</p> <p>A mere witness ought nut to be made a party to a suit in chancery.</p>

<p>Minutes of Superior Court, letter G. p. 265.</p>

<p>Mitmtes of Superior Court, letter G. p. 268.</p>

<p>Where a new jurisdiction is created by statute, proceeding according to the course of the common law, the Superior Court can cause its proceedings to be brought up, and correct its errors. But where such newly created jurisdiction its summary, and does not proceed according to the common law, tho Superior Court will, on certiorari, confirm or quash its proceedings.</p> <p>The neglect or refusal of a Pilot to board a vessel, by which damage ensues to her, may be proceeded against under the 5th See. of the Act of 1799, if the claim for damage does not exceed $100.</p> <p>And the claim, and not the measure of damages assessed by the Commissioners, is the test of the jurisdiction.</p> <p>But the non-payment of the fine assessed under the 5th Sec. will not authorize the Commissioners to suspend the Pilot, from the exercise of his duties.</p> <p>Where a new jurisdiction is created by statute, without prescribing its form of proceeding, such jurisdiction may pursue its own forms and regulations, if not inconsistent with the laws of the land. . ,</p> <p>But notice to a defendant, is an implied and Indispensable pre-requisite to the exercise of jurisdiction.</p> <p>Neither consent, nor the act of one party, can confer jurisdiction.</p>

<p> Minutes of Superior Court, letter G. p. 288. </p>

<p>In tribunals of special and limited jurisdiction, every fact or thing essential to confer the jurisdiction, must in some manner appear in their proceedings.</p> <p>Tribunals of summary and extraordinary jurisdiction, are to be reviewed with the utmost liberality as regards regularity and form.</p> <p>The 7th Sec. of the Legislative Act of 1799, directs that the license of a Pilot shall be revoked by the Commissioners of Pilotage, “if he shall be found not sufficiently skilled, or shall become incapable of acting, or shall be negligent, or misbehave in his duty towards the Commissioners $” held, that the neglect of a Pilot, in not boarding a vessel when he ought to have done so, would authorize his suspension under this section.</p> <p>And it is not necessary to make the sentence of suspension legal, that a formal judgment should be entered up.</p> <p>The office of a Pilot is not a public one; it is a private profession, trade or calling.</p> <p>If a party suffers improper evidence to be admitted without objecting at the time, it is a waiver of the objection.</p> <p>So, if after an adjournment irregularly granted, he appears and goes to trial.</p> <p>It seems, that the right of adjournment may be exercised by any tribunal, when essential to the ends of justice.</p> <p>The Legislative Act of Georgia, authorized the Corporation of Savannah to elect Commissioners ef Pilotage: several of the Commissioners were afterwards appointed by the Corporation,r.by resolution: held, that as the statute prescribed no mode of election, this was a good exercise of the power conferred.</p> <p>The States retain the power to legislate upon the subject of Pilotage, within their own territories and over their own citizens, unless such legislation interfere with, or is contrary to an Act of Congress, passed in pursuance of the Constitution.</p> <p>It seems, that the constitutionality of a legislative act cannot be decided on, on application for certiorari, or other summary way.</p> <p>The negligence of a Pilot, which authorizes his suspension, is not a “ crime” or “ criminal proceeding,” within the meaning of the Constitution of the United States, or the amendments thereof.</p> <p>Neither is the proceeding against him under the Legislative Acts of Georgia, a “suit at common law,’5 within the meaning of the VII Art. of the amendments of the Constitution U. S.</p> <p>The provision of the Constitution of Georgia, which directs that “tiial by Jury as heretofore used in this State, shall remain inviolate,” does not apply to a summary jurisdiction, (such as •the Commissioners of Pilotage) existing in Georgia, before the adoption of tho Constitution, and recognized by contemporaneous legislation, judicial exposition, and continual acquiescence.</p> <p>If there be a doubt upon the constitutionality of a law, the law ought to bo sustained.</p>

<p>Minutes of Superior Court, letter G. p. 327.</p>

<p>Minutes of Superior Court, letter G. p. 329.</p>

<p>Minutes of Superior Court, letter G. p. 343.</p>

<p>Minutes of Superior Court, letter G. p. 355.</p>

<p>Minutes of Superior Court, letter G. p. 361.</p>

<p>Minutes of Superior Court, letter G. p. 363.</p>

<p>Minutes of Superior Court, letter G. p. 368.</p>

<p> Motion for new trial. </p>

<p> Fi. Fa. Levy on land, and claim interposed by Mulford MarsTc. </p>

<p>The owner of land appropriated for a highway retains the freehold in the soil, and subject to the easement, and not interfering with it, may use the land in any manner, and may maintain ejectment, trespass or waste for any exclusive appropriation of it by another.</p> <p>And the statute of Georgia, which directs compensation to be made to the owners of land laid out for a highway, must be taken to provide for the purchase of the easement, and not of the land.</p> <p>As a general rule, the freehold in the highway must be taken to belong to the proprietors of the adjoining soil.</p> <p>But this rule being founded on the presumption, that such way was originally taken out of the lands of the party who hath other lands adjoining, is not applicable when such presumption cannot arise from the facts shewn.</p> <p>A Legislative Act appropriating property to the public is an irrevocable grant of such property.</p> <p>A political corporation, created for the purpose of municipal government, is liable to the superintendance and control of the Legislature, which may enlarge, modify, change or restrain its charter.</p> <p>But the Legislature cannot divest such corporation, without its consent, of the property legally acquired by it.</p> <p>Nor can such corporation aliene or grant the public property, for purposes different from the object of its original appropriation.</p> <p>Upon a re-organization of a corporate body, which is essentially changed thereby, in order to transfer to the new, the particular powers of the old corporation, there must be an enabling clause empowering the new corporation to act in the particular case, or a general clause which might embrace the particular case.</p> <p>Where the legal title to the soil is in a corporation, (or the public,) it may maintain an action of ejectment to recover the possession of a street.</p> <p>But it seems, that where only the easement, and not the freehold is in the public, the only remedy for a violation of the right is by public prosecution.</p> <p>By a Legislative Act passed in 1760, the town common, streets, lanes, &c. in the town of Savannah, were declared to be the common property of the lot-holders in said town, and Commissioners were appointed to carry the Act into execution. By an Act of 1787, a President and</p> <p>, Wardens were directed to be chosen, with power to make bye-laws, assessments, and to lease or sell any public lots, &c. By Act of 1789, the town is styled the city of Savannah, and a Mayor and Aldermen were directed to be elected, and were declared to be a b ody politic, witli the power of acquiring and holding property, real and personal, for the benefit of said city ; held, that by the Act of 1760, the legal title to the town common, streets, &c. vested in the lot-holders or public, in their collective capacity, and as a corporation sub modo, which became transferred by the Act of 1787 to the President and Wardens as (he legal representative of the public, and for its benefit, and finally, by Act of 1789, became vested in the “Mayor and Aldermen of the city of Savannah.”</p> <p>Held, further, that if the legal title did not pass by the Acts of 1760 and 1787, to the public or lot-holders, as a corporation, sub modo, then as it could not vest in them individually, and there was no one capable of taking and holding at the time of the grant, such grant of the town common, streets, &c. must he considered as a dedication to public uses, which by operation of law became vested in the Mayor and Aldermen of the city of Savannah, as soon as they were incorporated.</p> <p>Held, further, thatybr the purpose of sustaining the action of ejectment,the term “lots” used in the Act of 1787 and which the Wardens were authorised “ to let, lease or rent,” might be construed to embrace the streets, town common, &c. so as to enable the corpoiation of Savannah to mate a demise of a public street.</p> <p>&.nd it seems, that the corporation having the legal title and possession of the street, might there • fore, (apart fr om the construction given to the Act of 1787) have made a demise of it, for the purpose of sustaining ejectment.</p>

<p>When the process of the Court Is attempted to be used oppressively, and against justice, as by levying an execution after judgment had been satisfied, the Court will grant relief upon moiion.</p> <p>And if it requires information of matters of fact, it will cause an issue to be made up for that purpose.</p> <p>And where the party moving, was not prepared with his proofs, and modified his motion by asking for a rule on the plaintiff to shew cause at the next term, the 'Court granted the motion, but without stay of proceedings.</p> <p>A Court of Equity under such circumstances, is the proper tribunal to grant relief.</p>

<p>Injunction granted to restrain the Sheriff from paying over money made on sale of an estate, under executions issued by individual creditors thereof, where such injunction was prayed for by bill in the Superior Court, alleging that complainants had filed a bill in the Circuit Court of the United States, for the District of Georgia, claiming a specific lien on said estate, and preference over individual creditors, which claim was still pending and undetermined*</p>

<p> In Equity. Motion to dissolve Injunction. </p>

<p>Inspection laws may be constitutionally applied not only to the produce of the country to be exported, but to imports brought in for the purpose of sale within the State.</p> <p>And therefore, an Ordinance of the city of Savannah made under the authority of an Act of the Legislature of Georgia, inflicting a penalty on any person who should sell domestic liquors within the limits of the city, without having them gauged and inspected by the City Inspector, to whom a email compensation was to be paid by the vender, was held to be an inspection law, and constitutional, both as to the thing to be done, and the compensation to be made, and that its penalties might be properly enforced against the importer of the liquors, in the original casks, who had sold the same, without having them gauged, &c.</p> <p>The Constitution of Georgia declares that no bill or ordinance shall pass containing any matter different from what is expressed in the title thereof; held^ that although under this clause so much of a statute as contains matter different from what is expressed in the title thereof, will be void, yet that it was enough if the title was descriptive generally of the purposes of the Act, and that it was hot necessary that it should particularize the several provisions and amendments contained in the body of the act.</p>

<p>The term '‘State” when used in the Constitution of the United States, is confined to a member of the American Confederacy.</p> <p>So much of the Act of Congress of 27th March, 1804, as extends the provisions of the Act of 1700, regulating the mode of proving in one State the judicial proceedings, &c in another State,) to the Territories of the United States, so as to prescribe the mode of proof or the effect to be given to a judgment of a Court of a Territory, in the Courts of a State, is unconstitutional.</p> <p>Tne States possess the right of legislating on the subject.</p>

<p> In Equity. Bill for discovery, relief, S$c. </p>

<p>A Bond was made- payable* at a distant day, wilk lawful interest payable annually ^ to secure ■which, a mortgage was given with a proviso, that in default of payment of the principal sum y or the interest, at any time when the same should become due, it should be lawful to foreclose the same i held, that the mortgagee had the right, from the contract of the parties, to foreclose the mortgage, and collect the whole debt, principal and interest, on. the-failure of the mortgagor to pay the first year’s interest when i t became due.</p> <p>An injunction may be retained under the special circumstances of the case, though the defendan t has filed his answer, fully denying the- equity set up* by the bill-</p>

<p>It seems ,that where possession of goods is taken by a vendee, after the death of vendor, under a deed fraudulent as to creditors, the vendee is liable to the creditors of deceased vendor as executor de son tort.</p> <p>And where the vendor remained in possession of the goods after the execution of the deed, and the vendee took possession the day before the death of the vendor, and whilst he was in ex* tremis, and the Jury found by their verdict that such deed was fraudulent} held, that the vendee was chargeable to the creditors of deceased vendor as executor de son tort.</p> <p>But it seems, in such case, that the vendee can only be charged at the suit of creditors of vendor and that his legal representative has no remedy.</p> <p>And it seems, that the vendee is not chargeable as executor de son tort, if he took possession under mistake, or without fraud.</p> <p>If one takes possession of the goods of a deceased person, claiming to be executor, or does those acts wnich only an executor can do, he may be charged as executor de son tort, though there be a rightful executor or administrator.</p> <p>So if the intermeddling he before probate, or grant of administration to rightful repiesentative.</p> <p>D. sued as executor of B., pleaded, 1st. “ Neunques executor ; 21y Outstanding debts of equal dignity with plaintiffs.” The acts done by him having made him executor de son tort, and the Jury having therefore found the first plea against him } held, that having plead a plea false within his own knowledge, he was liable to plaintiffs’ demand, however small the assets in his hands; that he was not entitled to reduce the plaintiffs’ verdict against such assets, by proof of outstanding debts of equal dignity, and that the verdict of de lonis testaloris, si vel non de bonis propriis, for the whole of plaintiffs’ demand, was proper.</p>

<p>A creditor who has obtained judgment against his debtor, and levied his execution upon property mortgaged to another person anterior to his judgment, and which mortgage has been properly recorded, can only sell the equity of redemption, ofhis debtor.</p> <p>And therefore, such creditor, and not the mortgagee, is entitled to the proceeds of the sale under such execution.</p> <p>A foreclosure of a mortgage, under the statute of Georgia, does not vest the absolute estate in the mortgagee; it only authorises a sale of the property, and the surplus, after payment of the mortgage and costs, belongs to the mortgagor.</p>

<p>A Court hag the discretion to allow a Writ to be amended, by the insertion of the name of a party, aa defendant, even after plea of abatement filed for the want of proper parties.</p>

<p>An Act of tlie Legislature of Georgia passed in 1834, appointed the Mayor and Aldermen of Savannah, commissioners of the Jail of Chatham County, with power to appoint a Jailor. The custody of the Jail before the passage of this Act, was vested by law in the Inferior Court and Sheriff of the County. The Corporation of Savannah having appointed ihe Jailor, D. the then Sheriffwho had been elected before the passage of the Act of 1834, refused to deliver the possession of the Jail and the custody of the prisoners therein, on the ground that his term of office had not expired ; that he was entitled by law to the possession of the Jail during such term as incidental to his office, and that the Act of 1834 was unconstitutional, so far as it related to him: held, (on application by the Jailor appointed by the Corporation for Mandamus, to obtain possession,) that said Act was not the exercise of judicial power, and therefore did not infringe the Constitution of the State, and that it did not violate the Constitution of the United States, by impairing the obligation of a contract; and Mandamus granted.</p> <p>Definition of, and distinction between legislative nab judicial power.</p> <p>Public officers under our Government, are but the naked agents of the body politic, and act only for its benefit. Such officers have no proprietary interest in their offices, and their duties, and rights which are the mere consequence of such duties, may be changed during their continuance in office, by the Legislature, without violating that clause of the Constitution of the United States, which forbids the passage of a law impairing the obligation of a contract.</p> <p>A Sheriff in the Slate of Georgia is entirely a ministerial officer whose province is to execute duties prescribed by law, and which duties may be contracted or enlarged at the will of the Legislature.</p> <p>Laws passed in the exercise of the ordinary legislative power of a State, are not contracts within the purview of the Constitution of the United States.</p> <p>And laws which repeal or amend them, do not fall beneath the constitutional inhibition.</p>

The facts of this case were, briefly, as follows s Goldie, the master of a vessel consigned to William Gaston, wrote a letter to Mr. Gaston, by Harden, the Pilot who carried the vessel out, informing Mr, G. that the ship had crossed the bar in safety, and adding, “ you will please pay Mr. Harden the sum of $35, the amount of his pilotage, and oblige your obedient servant.” Harden endorsed on the letter, “ Pay to John Low, or order.” Dibble, the plaintiff-, who was a creditor…

Fi. Fa. Affidavit of illegality. The action out of which arose the question submitted for the decision of the Court, was debt upon a bond, dated 26th April, 1825, in the sum of $400, conditioned to collate, arrange, and publish, the papers relating to the original settlement, and political history of Georgia, to be found in the Executive or Secretary of State's offices.

<p>Motion for new trial and supersedeas.</p>

<p>A creditor is not compelled to join ihe legatees in a sui.t in equity, brought against the executor of the debtor; it is his privilege, not his d%ty to join them. The executor is to sustain the person of the testator, and to defend the estate for creditors and legatees.</p> <p>And the fact that the estate has been distributed, and is in possession of the legatees, does not vary the rule.</p> <p>A creditor having established his claim and obtained a decree against the estate of his debtor, authorising a levy upon said estate, in whosever hands it might be, will not be enjoined, at the instance of specific legatees, from proceeding against that portion of the estate in their hands, on the ground that the testator had set apart a particular portion .of his estate for the payment of his debts. Creditors having superior claims to volunteers, cannot be embarrass* ed or retarded by such a provision.</p>

<p>Where two distinct felonies are charged upon the prisoner in one indictment, the Court may before plea, quash the indictment, or after plea, compel the prosecutor to elect, on which-charge he will proceed.</p> <p>But this rule is to be exercised by the Court in its discretion, and will Be enforced, when the prisoner may be confounded in his defence, or prejudiced in his challenges, or where the attention of the Jury will be distracted by such joinder.</p> <p>And it does not apply, unless the charges are actually distinct, and grow out of different transactions.</p> <p>The Court will not compel the piosecutov to elect upon an indictment charging prisoner with larceny, and receiving stolen goods, 6fc. where it appears by the indictment, that the charges relate to the same transaction, modified to meet the proof.</p>

<p>A payment to a person who has no power to receive, becomes valid, by a subsequent ratification by the creditor.</p> <p>But where the creditor does not ratify the act of an individual, receiving money for him without authority, but merely assents to receive the liability of a third person, for the payment of the debt due by his debtor, the latter will not be discharged, unless it be expressly agreed to run the risk of the solvency of the person who comes in aid of the debtor, and to discharge the latter, or unless the creditor has thereby received payment of his debt, or has debarred himself from recovering by some laches.</p> <p>Thus, where M., without any authority from the creditor D. for his own convenience, entered into an arrangement with the debtor P. (his partner,) by which M. assumed the payment of the money due to D., but there was no agreement in relation to this settlement, between P. the debtor, and P. the creditor, and the only evidence of assent shewn on his part, was, a charge made by him against M. of the amount of the due bill of P. in an account exhibited for the purpose of submitting all matters between them for arbitration, held, that these facts did not constitute a legal payment of the debt from P to D.</p> <p>Where neither debtor nor creditor has directed the application of the payment made, the Court is vested with the discretion to apply it, according to the justice of the caso.</p>

<p>On a habeas corpus at common law, the Court, (or Judge presiding) on Return, has the power to change the custody of an infant child, if its interests require it.</p> <p>And this discretion is more properly to be exercised, when the infant is too young to make a proper election»</p> <p>The writ of habeas corpus at common law, applies as well to cases of illegal detention as ille* gal confinement or restraint.</p> <p>The father has the legal right to the custody of his children*</p> <p>But Courts of justice may control this right, when the safety or interests of the child imperiously require it.</p>

<p>The fact that fraud has been committed, will not per $e, entitle complainants to redress in á Court of Equity, if a plain ami adequate remedy at law can be afforded them.</p> <p>Demurrer sustained for want of equity, where it appeared by complainants’ bill, that they held the senior grants to the land in dispute, and that the junto?' grants issued by the State erf Georgia to defendants, were examinable collaterally at law, the State having no title to the lands thus granted, and such grants having issued contrary to the prohibition of a statute.</p> <p>Neither the legal nor equitable title to the vacant lands in the town of Brunswick resides in the Commissioners. If the State has made an improvident or mistaken grant thereof, the State only can take advantage of it.</p>

<p>Upon the death of one member of a firm, the representatives of deceased partner, become tenants in common with the survivor, ami are entitled to an account.</p> <p>But the survivor is alone icsponsible at law, for the joint debts, and therefore the right to the possession and disposition of the joint effects remains with him.</p> <p>An injunction will not be granted at the instance of representatives of deceased partner, to restrain survivor from selling joint effects at public sale, where there is no charge of fraud, Insolvency, or misconduct, alleged against such survivor, and where there is no proof that the account has been withheld for an unreasonable time.</p> <p>There can be no objection to a public sale of the joint effects, made after public notice, and at a proper time and place.</p>

<p>Indictment for stabbing another, not in his own defence.—Yer* diet, Guilty.</p>

Indictment, privately stealing in a dwelling house. Verdict, Guilty on both counts of Indictment. Motion in arrest of judgment, and for new trial.

<p>Art injunction may issue to restrain trespass, where irreparable injury would follow its denial; as where defendant is insolvent.</p> <p>33ut it seems, that it will not be granted, where the title is in dispute.</p> <p>&n& -where the answer set forth, jhat there -was an actual adverse possession by defendant, at ¿the time of the purchase of the'land by complainant, the injunction was refused.</p>

<p>The Act of December 16th, 1811, in reference to injunctions, applies to all persons^ in whatever capacity they apply for the writ. An Executor or Administrator cannot obtain the injunction, without giving bond and paying costs as required by such statute.</p>

<p>If no time be fixed byu statute for it to go into operation, it takes effect from its date.</p> <p>Where an attachment was directed to the “Sheriff of the county of Chatham,’5 instead of, “ to all and singular the Sheriffs and Constables of this State,” held} that it might be amended, it haying been addressed to one of the individuals entrusted bylawwithits execution, and therb being something, therefore, to amend by.</p> <p>All the statutes relating to attachments, being in pari materia, must be taken together.</p>

<p>A Certiorari may issue to bring up a decision of the Court of Ordinary, notwithstanding, that by the law of Georgia, an appeal is given from the same tribunal to the Superior Court.</p> <p>The petitioner for Certiorari must either be a party to the record, or one who has a direct and immediate interest in it, or is privy thereto.</p> <p>The writ of Certiorari issues as well at common latot as by statute. It is a Constitutional writ. The Judiciary Act of 1799, so far as it relates to Certiorari is an affirmative statute without a negative, express or implied. The mode prescribed by it is accumulative ; at all events, so far as relates to the proceedings of other Courts than the 11 Inferior Court.”</p> <p>It is not necessary, that exceptions should be taken in the Court below, in order to bring up a decision of a Court of Ordinary.</p> <p>Construction of the laws of Georgia concerning manumission.</p> <p>A will which directs the executor to apply to the Legislature for the manumission of certain slaves, and if that cannotbe accomplished, in thatmanner, that they should be sent out of the State, to where it can be done, is not illegal and does not controvene the policy of our statutes,</p>

<p> Application for Certiorari. </p>