A * tf cj A » <1 H § N h p! -Ho 0 H HO J J o o cs o E H Y £ - ^ 3 O —J o ,c ^ « — £ tu ~ ^ 2 —* 5J ■— •*-J "2 W J3 bfi S f: § j <> s®* 1 ■*-• C — 0J -r Z) £ C « C • o o ' v 5 d D rt o £ tJ bxi ^ rt ^ Ph O 0 k rQ O to e G CU > 2 £*-» >—t 2 <: 00 3 &o ^ o ~^OG g 'A < 2 . . bo 03 Tt" lo 'C THE GEORGIA JUSTICE: BEING A CONVENIENT DIRECTORY FOB THE JUSTICES OF THE PEACE, AND VARIOUS OTHER CIVIL OFFICERS KNOWN TO THE LAWS OF THE STATE OF GEORGIA. CONTAINING A DIGEST OF THE STATUTES RELATING TO THE DUTIES OF SAID OFFI- CEES, AND OTHER LAWS OF A GENERAL NATURE, ILLUSTRATED AND EX- PLAINED BY QUOTATIONS FROM THE MOST EMINENT WRITERS AND EXPOUNDERS OF THE COMMON LAW. IN FOUR PARTS. AN APPENDIX, CONTAINING THE CONSTITUTION OF THIS STATE, AND THE CONSTITUTION OF THE UNITED STATES AS AMENDED. BY RHODOM A. GREENE AND JOHN W. LUMPKIN. MILLEDGEVILLE : P. ;L. & B. H. ROBINSON, PRINTERS. 183 5. UNITED STATES, District of Georgia, ss. Be it remembered, That on the twenty-fifth day of May, in the fifty-ninth year of the independence of the United States of America, A. D. 1835, Rhodom A. Greene and John W. Lumpkin, of said district, have deposited in this oflice the title of a hook, the right whereof they claim as proprietors, in the words following, to wit " The GEORGIA JUSTICE : being a convenient Directory for the Justices of the Peace, and various other civil officers known to the Laws of the State of Georgia. Containing a Digest of the Statutes re- lating to the duties of said officers, and other laws of a general nature, illustrated and explained by quo- tations from the most eminent writers and expounders of the Common Law. In four Parts. With an Appendix, containing the Constitution of this State, and the Constitution of the United States, as amended. By Rhodom A: Greene and John W. Lumpkin." In conformity to the act of congress of the United States, entitled, " An act for the encouragement of learning, by securing the copies of maps, charts, and books to the authors and proprietors of such copies during the times therein mentioned and also to the act entitled, " An act supplementary to an act en- titled ' An act for the encouragement of learning, by securing the copies of maps, charts, and books to the authors and proprietors of such copies during the times therein mentioned,' and extending the benefits thereof to the arts of designing, engraving, and etching historical and other prints." GEORGE GLEN, Clerk District Court, Georgia. PREFACE. Sixteen years have elapsed since the publication of Mr. Clayton's " Georgia Justice," and more than eleven years since its revision by the late Judge Lamar. So high has been the estimate placed upon that work, that it is still sought after by the county officers, notwith- standing by far the greater part of the statutes it contains have either been mutilated by amendments, or wholly repealed. This circum- stance alone affords abundant evidence of the usefulness and import- ance of such a work to the people of Georgia; and from the defect- ive condition of the one alluded to, great inconvenience has been experienced by the county officers for several years past. It was at first contemplated only to revise Clayton's Justice by ex- punging the repealed statutes, and inserting those enacted since its revision. But upon examination of some modern works of the kind published in other states, it was believed that a considerable improve- ment might be made by an entirely new arrangement of the titles, and that by introducing several new subjects, judiciously selected, the usefulness of the work might be greatly enhanced. It is not difficult to perceive, that the adoption of such a plan involved the compilers in all the labour incident to an entirely new production. By reference to the Table of Contents, the reader will see the details of the plan which has been adopted, and which is believed to be the most natural order of presenting the subjects properly falling within the scope of the work. One principal convenience of this arrangement is, that very much useless repetition, indispensable to the former plan, is avoided; thereby leaving considerable space for the introduction of new matter, without a proportionable enlargement of the size of the volume. Great care and attention have been bestowed in the collection and arrangement of the most approved forms: and the index, it is confi- dently believed, will add greatly to the convenience and usefulness of the work ; as the county officers, by consulting it, will be admonished of various duties and responsibilities which, otherwise, might escape their notice. Indeed, the whole work has been prepared and arranged iv PREFACE. with a view of affording the best possible assistance and security to that class of citizens, who, without study or preparation, are often called to official stations, involving the most intricate duties and the most weighty responsibilities. Among the chief of such, is the Jus- tice of the Peace, whose convenience has been an object of pecu- liar regard in the arrangement of this work. It has also been a principal design of the compilers to make the " Georgia Justice" useful and interesting to the citizens generally, by making such selections and incorporating all such general inform- ation as might tend to an acquaintance with the laws of the country —such as is the interest and duty of every citizen to possess. To this effort to serve the public, the compilers have summoned their best ability; the result of their labours is now before their fellow-citizens, in whose justice and liberality they have the utmost confidence. THE COMPILERS. Milledgeville, 20th Oct., 1835. Note.—The common law authorities imbodied in this volume will be distinguished from the statutes by the size of the type—the former, as also the occasional remarks of the compilers, appearing in smaller type. TABLE OF CONTENTS. PART I. DEFINITION AND PUNISHMENT OF CRIMES AND OFFENCES AGAINST THE LAWS OF GEORGIA. Page CHAPTER I.—Persons capable of committing crimes - 11 CHAP. II.—Principals and accessories in crimes 13 CHAP. III.—Crimes against the state and people 15 CHAP. IY.—Crimes and offences against the persons of citizens or individuals - - - - 16 CHAP. V.—Crimes and offences against the habitations of persons - 26 CHAP. YI.—Of crimes and offences relative to property 29 CHAP. VII.—Forgery and counterfeiting 39 CHAP. VIII.—Crimes and offences against the public justice 43 CHAP. IX.—Offences against the public peace and tran- quillity 50 CHAP. X.—Offences aga4nst the public morality, health, police, and decency ... 56 CHAP. XI.—Offences committed by cheats and swindlers, and offences against public trade - - 6.4 CHAP. XII.—Fraudulent or malicious mischief - - 66 CHAP. XIII.—Offences relative to slaves - - - 69 CHAP. XIY.—Of contempts of court ... 74 PART II. THE SEVERAL STAGES OF PROCEEDINGS IN PROSECUTIONS UNDER THE CRIMINAL LAWS OF GEORGIA. CHAPTER I.—Of the prosecutor 76 CHAP. II.—Of warrants ------ 77 CHAP. III.—Of arrests 89 CHAP. IV.—Of the examination and incidents - - 98 CHAP. V.—Of the habeas corpus - - - - 118 CHAP. VI.—Of indictments, arraignments, trial, verdict, judgment, and execution - - - 122 CHAP. VII.—Evidence—witnesses—interrogatories - 130 CHAP. VIII.—Cost in criminal cases - 144 CHAP. IX.—Rules of practice in the superior courts - 145 vi CONTENTS. PART III. DUTIES OF VARIOUS OFFICERS KNOWN TO THE LAWS OF GEORGIA. CHAPTER I.—Justices of the peace .... 161 CHAP. II.—Justices' courts - 168 CHAP. III.—Constables 189 CHAP. IV.—Sheriffs 193 CHAP. Y.—Jailers 209 CHAP. VI.—Coroners 211 CHAP. VII.—Jurors 220 CHAP. VIII.—Grand jury 227 CHAP. IX.—County treasurer 230 CHAP. X.—Receiver of tax returns - - - 231 CHAP. XI.—Collector of tax 235 CHAP. XII.—Subjects of taxation 244 CHAP. XIII.—Justices of the inferior court - - - 249 CHAP. XIV—Courts of ordinary ib. CHAP. XV.—Clerks of the superior and inferior courts - 291 CHAP. XVI.—Attorneys 303 PART IV. A COLLECTION OF STATUTES OF THE STATE OF GEORGIA UPON VA- RIOUS SUBJECTS OF INTEREST, BOTH TO THE PUBLIC OFFICERS AND CITIZENS GENERALLY. CHAPTER I— CHAP. CHAP. CHAP. CHAP. CHAP. CHAP. CHAP. CHAP. CHAP. CHAP. CHAP. CHAP. CHAP. CHAP. CHAP. CHAP. CHAP. XVIII.- CHAP. XIX.- II.- III.- IV.- V.- VI- VII.- VIII- IX- X- XI- XII- XIII- XIV- XV- XVI- XVII- Attachments - Bastardy ■Certiorari ■Courthouses, prisons, &c. Deeds and mortgages Dower ... ■Endorsers and securities ■E strays - Fences - Free persons of colour General elections ■Insolvent debtors •Interest - -Limitation of actions -Marks and brands - ■Mills ■Naturalization - -Oaths - -Pedlers - 306 319 324 329 332 338 341 343 348 349 361 367 373 374 376 377 378 382 383 CONTENTS. CHAP. XX.—Public worship CHAP. XXI.—Quarantine - CHAP. XXII.—Rent - CHAP. XXIII.—Roads, bridges, &c. CHAP. XXIV.—Sabbath CHAP. XXV.—Slaves and patrols CHAP. XXVI.—Trial of slaves CHAP. XXVII.—Taverns - CHAP. XXVIII,—Weights and measures vii Page - 384 - 385 - 389 - 391 - 399 - 402 - 411 - 416 - 417 PART I. OF THE DEFINITION AND PUNISHMENT OF CRIMES. CHAPTER I. Perso?is capable of committing Crimes. 1. A crime or misdemeanor shall consist in a violation of a public law, in the commission of which there shall be a union or joint operation of act and intention; or criminal negligence. Misdemeanor,* as distinguished from crime, (by the common law,) is the term used to denote minor offences, comprehending all minor offences not amount- ing to felony.—4 Blackstone, 5. Felony is now defined by statute to mean an offence punishable by death or confinement in the penitentiary. See sec. 13 of this chapter. 2. Intention will be manifested by the circumstances connected with the perpetration of the offence, and the sound mind and discre- tion of the person accused. If the intention cannot be implied from the facts and circumstances which, together with it, constitute the offence, other acts of the defendant, from which it can be implied to the satisfaction of the jury, must be proved at the trial.—Arch. Crim. Law, 65. 3. A person shall be considered of sound mind, who is neither an idiot, a lunatic, or afflicted by insanity; or who hath arrived at the age of fourteen years, or before that age, if such person know the distinction between good and evil. 4. An infant under the age of ten years, whose tender age renders it improbable that he or she should be impressed with a proper sense of moral obligation, or be possessed of sufficient capacity deliberately to have committed the offence, shall not be considered or found guilty of any crime or misdemeanor. Thus it appears that an infant under the age of ten years is not indictable for any offence, nor are they to be presumed innocent of an offence which they may commit after they have arrived at the age of fourteen. An infant between the age of ten and fourteen may be indicted, and if, upon the trial, it appear that there was such a hiding or concealment as manifested a consciousness of guilt, such infant may be convicted and suffer capital punishment. By the Englishlaw, the capacity of doing ill, or contracting guilt, is not so much measured by years and days as by the strength of the delinquent's understanding and judgment; for one lad of eleven years old may have as much cunning as another of fourteen.—4 Black. 23. But the same author, * By our pnnal code some felonies are called misdemeanors. See 37, 39, 40, 41, 42, 43 sections, sixth chap. &c. 12 PERSONS CAPABLE OF CRIMES. [Part I. after instancing cases of the infliction of capital punishment on infants, adds, (page 24,) " In all cases, the evidence of that malice, which is to supply age, ought to be strong and clear beyond all doubt and contra- diction." With regard to civil cases, an infant cannot be sued without joining the name of his guardian ; but he may sue by his guardian, or next friend who is not his guardian, which may be by any person who will undertake his cause. Generally speaking, he cannot alien his lands, nor do any legal act, nor make a deed in writing under seal, nor indeed any manner of contract that will bind him : but this is subject to some exceptions, for he may purchase lands; but the purchase is incomplete, for when he conies of age he may either agree or disagree thereto as he thinks prudent or proper, without alleging any reason; and so may his heirs after him, if he dies without having com- pleted his agreement. And he may by deed or will appoint a guardian to his children, if he has any. Also, he may bind himself to pay for his necessary meat, drink, ap- parel, physic, and such other necessaries, and likewise for his good teaching and instruction, whereby he may profit himself afterward. But if he bind himself in a bond, with a penalty, for the payment of any of these necessa- ries, that bond shall not bind him. If he borrows money to pay for the necessaries, and applies it accordingly, he is not liable at law, because he might have wasted it. If he is an execu- tor, he may give an acquittance on payment; not without payment. No Inches or lack of diligence, or negligence, can be imputed to him during his infancy. 5. A lunatic, or person insane, without lucid intervals, shall not be found guilty of any crime or misdemeanor with which he or she may be charged : Provided, the act so charged as criminal was com- mitted in the condition of such lunacy or insanity; but if a lunatic hath lucid intervals of understanding, he shall answer for what he does in those intervals, as if he had no deficiency. 6. An idiot shall not be found guilty or punished for any crime or misdemeanor with which he or she may be charged. If there be a doubt, whether the party be compos or not, this shall be tried by a jury.—4 Black. 25. 7. Any person counselling, advising, or encouraging an infant under the age of ten years, a lunatic, or an idiot, to commit on offence, shall be prosecuted for such offence, when committed, as princi- pal; and if found guilty, shall suffer the same punishment as would have been inflicted on said infant, lunatic, or idiot, if he or she had possessed discretion and been found guilty. 8. A feme covert, or married woman, acting under the threats, command, or coercion of her husband, shall not be found guilty of any crime or misdemeanor, not punishable by death or perpetual imprisonment; and, with this exception, the husband shall be prose- cuted as principal, and, if convicted, shall receive the punishment which otherwise would have been inflicted on the wife if she had been found guilty; Provided it appears, from all the facts and cir- cumstances of the case, that violent threats, command, and coercion were used. If the husband be in company with the wife when the offence is committed, this the law construes a coercion, and the wife is protected.—4 Black. 28. And see sec. 12 of this chapter, where the wife is protected even in crimes punishable with death. Chap. l.J principals and accessories in crimes. 13 9. Drunkenness shall not be an excuse for any crime or misdemean- or, unless such drunkenness was occasioned by the fraud, artifice, or contrivance of other person or persons, for the purpose of having a crime perpetrated ; and then the person or persons so causing said drunkenness for such malignant purpose, shall be considered aprinci- pal, and suffer the same punishment as would have been inflicted on the person or persons committing the offence, if he, she, or they had been possessed of sound reason and discretion. 10. A person shall not be found guilty of any crime or misde- meaner committed by misfortune or accident, and where it satisfacto- rily appears there was no evil design or intention, or culpable neglect. 11. A slave committing a crime or misdemeanor, which, if com- mitted by a free white person would not be punishable by this act with death, by the threats, command, or coercion of his or her owner, or any person exercising or assuming authority over such slave, shall not be found guilty; and it appearing from all the facts and circumstances of the case; that the offence was committed by threats, command, and coercion of the owner, or the person exer- cising or assuming authority over such slave, the said owner, or other person exercising or assuming authority over such slave, shall be prosecuted for the said crime or misdemeanor ; and, if found guilty, shall suffer the same punishment as he or she would have incurred if he or she had actually committed the offence with which the slave is charged. 12. A person committing a crime or misdemeanor under threats or menaces, which sufficiently show that his or her life or member was in danger, or that he or she had reasonable cause to believe, and did actually believe, that his or her life or member was in danger, shall not be found guilty ; and such threats and menaces being proved and established, the person or persons compelling by said threats and menaces the commission of the offence, shall be considered a princi- pal or principals, and suffer the same punishment as if he, she or they had perpetrated the offence. 13. The term "felony," when used in this act, shall be construed to mean an offence for which the offender, on conviction, shall be liable by law to be punished by death or imprisonment in the peni- tentiary, and not otherwise. CHAPTER II. Principals and Accessories in Crimes. 1. A person may be principal in an offence in two degrees. A principal in the first degree, is he or she that is the actor, or absolute perpetrator of the crime. A principal in the second degree, is he or she who is present, aiding and abetting the fact to be done; which presence need not always be an actual immediate standing by, within sight or hearing of the fact; but there may be also a constructive presence, as when one commits a robbery, murder, or other crime, and another keeps watch or guard at some convenient distance. 14 PRINCIPALS AND ACCESSORIES IN CRIMES. [Part I Lord Mansfield observes, the word " aiding" does not necessarily imply that the person actually did anything. The mere presence may be an aiding, as in taking prizes at sea. The number of persons present and inciting, de~ ters others from opposing; though the persons present and inciting may not do any particular and personal act themselves.—Mac Nally's Ev. 364. So, where several persons assemble for an unlawful purpose, or where the object is intended to be carried into effect by unlawful means—particu- larly if intended to be carried into effect notwithstanding any opposition that might be offered against it, and a man be killed, will be murder in all who were present, whether they actually aided and abetted or not: Provided the death were caused by the act of some of the party in the course of his en- deavours to effect the common object of the assembly.—Arch. Crim.Law, 396. 2. An accessory is one who is not the chief actor in the offence, nor present at its performance, but is someway concerned therein, either before or after the fact committed. 3. An accessory before the fact is one who, being absent at the time of the crime committed, doth yet procure, counsel, or command another to commit a crime. It is settled, that whosoever procureth a felony to be committed, though it be by the intervention of a third person, is an accessory before the fact. It is likewise a rule, that he who in anywise commands or counsels another to commit an unlawful act, is accessory to all that ensues upon that unlawful act; but is not accessory to any act distinct from the other. As if A com- mands B to beat C, and B beats him so that he dies ; B is guilty of murder as principal, and A as accessory. But if A commands B to burn C's house, and he in so doing commits a robbery; now A, though accessory to the burning, is not accessory to the robbery, for that is a thing of a distinct and unconsequential nature.—4 Black. 37. 4. An accessory after the fact is a person who, after full know- ledge that a crime has been committed, conceals it from the magis- trate, and harbours, assists, or protects the person charged with, or convicted of the crime. The felony must be complete at thelime of the assistance given, else it makes not the assistant an accessory. As, if one wounds another mortally, and after the wound given, but before the death ensues, a person assists or receives the delinquent, this does not make him an accessory to the homi- cide ; for, till the death ensues there is no felony committed. But so strict is the law when a felony is actually complete, in order to do effectual justice, that the nearest relations are not suffered to aid or receive one another. If the parent assists his child, or the child the parent, if the brother receives the brother, the master his servant, or the servant his master, or even the husband receives his wife, who have any of them committed a felony, the receivers become accessories ex post facto. But a feme covert cannot be- come an accessory by the receipt and concealment of her husband; for she is presumed to act under his coercion, and therefore she is not bound, neither ought she to discover her lord.—4 Black. 38. 5. A principal in the second degree, and an accessory before the fact except where it is otherwise provided for in this code, shall receive the same punishment as is directed to be inflicted on the principal in the first degree, or perpetrator of the crime. 6. Accessories after the fact, except where it is otherwise ordered in this code, shall be punished by fine, or imprisonment in the com- mon jail of the county, or both, at the discretion of the court. Chap. 3.] CRIMES AGAINST THE STATE AND PEOPLE. 15 CHAPTER III. Crimes against the State and People. 1. Crimes against the state and the people shall consist in treason in the first degree, and second degree ; exciting, or attempting to excite, an insurrection or revolt of slaves. 2. Treason in the first degree shall consist in levying war against the state in the same, or being adherent to the enemies of the state within the same, giving to them aid and comfort in this state or else- where, and thereof being legally convicted of open deed, by two or more witnesses, or other competent and credible testimony, or volun- tary confession : these cases shall be adjudged treason against the state and people; and when the overt act of treason shall be com- mitted without the limits of this state, the person charged therewith may be arrested and tried in any county of this state, within the limits of which he may be found ; and being thereof convicted, shall be punished in like manner as if the said treason had been committed and done within the limits of said county. Treason in the first de- gree shall be punished with death. Levying war, cfc.—In order to constitute a levying of war, the number of persons assembled is not material; three or four will constitute it as fully as a thousand.—3 Inst. 9. Nor is it necessary that they should be armed with military weapons, with colours flying, &c.—Arch. Crim. Law, 269. Or being adherent to the enemies of the state, cfc.—As by giving them intelli- gence, by selling them arms, or the like ; but if a person be under circum- stances of actual force and constraint, through well-grounded apprehension of injury to his life or person, this fear or compulsion will excuse his even joining with either rebels or enemies in the state : Provided he leaves them whenever he hath a safe opportunity.—4 Black. 83. And whether the per- sons adhered to be enemies or not, is a matter of fact to be determined by the jury.—Arch. Crim. Law, 273. Giving to them aid, 22. Daughter's son's wife, 23. Wife's son's daughter, 24. Wife's daughter's daughter 25. Brother's daughter, 26. Sister's daughter, 27. Brother's son's wife, 28. Sister's son's wife, 29. Wife's brother's daughter, 30. Wife's sister's daughter. 5. Mother's brother, 6. Father's sister's husband, 7. Mother's sister's husband, 8. Husband's father's brother, 9. Husband's mother's brother 10. Father, 11. Stepfather, 12. Husband's father 13. Son, 14. Husband's son, 15. Daughter's husband, 16. Brother, 17. Husband's brother,* 18. Sister's husband, 19. Son's son, 20. Daughter's son, 21. Son's daughter's husband, 22. Daughter's daughter's husband, 23. Husband's son's son, 24. Husband's daughter's son, 25. Brother's son, 26. Sister's son, 27. Brother's daughter's husband, 28. Sister's daughter's husband, 29. Husband's brother's son,; 30. Husband's sister's son. 5. Any man and woman who shall live together in a state of adul- tery, or fornication, or of adultery and fornication; or who shall other- wise commit adultery, or fornication, or adultery and fornication, shall be severally indicted, and, on conviction, such offenders shall be sev- erally fined, or imprisoned in the common jail of the county, or both, at the discretion of the court: Provided, that the fine shall not ex- ceed the sum of five hundred dollars, and the imprisonment shall not extend beyond the term of sixty days. But it shall at any time be in the power of the parties to prevent or suspend the prosecution, and the punishment by marriage, if such marriage can be legally solemnized. The plaintiff must bring proof of the actual solemnization of a marriage; nothing shall supply its place.—1 Epinasse, 210. The confession of the adulteress will be no proof against the adulterer; but a discourse between them maybe proved; so letters written to her by him may be read against him, though her letters to him will be no evidence for him.—Ibid 212. The right of dower is forfeited by the adultery of the wife.—Christian's note on 2 Black. 139. The crimes of incest, adultery, and fornication, in England are left to the feeble coercion of the spiritual courts, according to the rules of the canon law. The temporal courts, therefore, take no cognisance of the crime of adultery, otherwise than as a private injury. * These prohibitions are to be understood with the qualifications expressed in the 18th verse of the chapter, which verse Dr. Adam-Clarke paraphrases thus: "Thou shalt not marry two sisters at the same time, as Jacob did Rachel and Leah;fbut there is nothing in this law that rendered it illegal to marry a sister-in-law, when her sister was dead; therefore the text says, Thou shalt not take her in her life time to vex her; alluding, probably, to the case of the jealousies and vexations which sub- sisted between Leah and Rachel; and by which the family peace was so often disturbed." H 58 CRIMES AGAINST [Part I, 6. Any person who shall be guilty of open lewdness, or any no- torious act of public indecency, tending to debauch the morals; or of keeping open tippling-houses on the sabbath day or sabbath night, shall, on conviction, be fined, or imprisoned in the common jail, or both, at the discretion of the court. 7. If any person shall maintain and keep a lewd .house, or place for the practice of fornication, or adultery, either by himself or her- self, or others, he or she so offending shall, on conviction, be punished by fine, or imprisonment in the common jail, or both, at the discretion of the court. 8. Any person who shall keep and maintain, either by himself or herself, or others, a common ill-governed and disorderly house, to the encouragement of idleness, gaming, drinking, or other misbeha- viour, or to the common disturbance of the neighbourhood or orderly citizens, such person so offending shall, on conviction, be punished by fine, or imprisonment in the common jail, or both, at the discretion of the court. 9. If any person shall, by himself, servant, or agent, keep, have, use, or maintain, a gaming house or room ; or shall in any house, place, or room, occupied by him, permit persons with his knowledge to come together and play for money, or any other valuable thing, at any game of faro, loo, brag, bluff, or any other game played with cards, such person so offending shall, on conviction, be fined in a sum not exceeding five hundred dollars, and imprisoned in the common jail of the county for any time not exceeding three months. 10. If any person shall, by himself, or servant, or any other agent, keep or employ any faro table, E. O. table, or A. B. C. table, or other table of like character, and shall, either by himself or agent, preside or deal at any faro table, or use any E. O. or A. B. C. table, or other table of like character, for the purpose of playing and bet- ting at the same, such person so offending shall, on conviction, be fined in a sum not exceeding five hundred dollars, or be imprisoned in the common jail of the county, for any time not exceeding six months, or both, at the discretion of the court. 11. If any person shall play and bet at any game of faro, loo, brag or bluff, or shall play and bet at any E. O. or A. B. C. table, or any other table of like character, such person so offending shall, on con- viction, be fined in a sum not less than twenty, nor more than one hundred dollars. 12. On the trial of any person for offending against the three pre- ceding sections of this division, any other person who may have played and betted at the same time or table shall be a competent witness, and be compelled to give evidence, and nothing then said by such witness shall at any time be received or given in evidence against him in any prosecution against the said witness, except on an indictment for perjury, in any matter to which he may have testified. 13. It shall be the duty of the judges of the superior courts of this state, at the opening or commencement of every court, to give in charge to the grand juries, respectively, the substance of the sections contained in this code relative to gambling. Chap. 10.] PUBLIC MORALITY, &C. 59 14. It shall be lawful for any lawful officer, with legal authority, to break open suspected rooms or houses, where it is commonly known that gaming is carried on, and to take any persons found gaming, and bind or cause them to be bound over to the next superior court to be held in and for the county where such offences may be committed ; and if such person or persons so found gaming, shall fail or refuse to give security for his or their appearance at court to answer for such offences, then it shall be lawful to commit such person or persons to jail. 15. Any butcher, or other person, selling the flesh of a diseased animal, or other unwholesome provisions, shall be indicted, and, on conviction, shall be punished by fine, or imprisonment in the common jail, or both, at the discretion of the court. 1G. Any baker, brewer, distiller, merchant, grocer, or other person, selling unwholesome bread, drink,or pernicious and adulterated liquors, knowing them to be so, shall be indicted, and, on conviction, shall be fined or imprisoned in the common jail, or both, at the discretion of the court. Though the law does not in general imply a warranty as to the goodness and quality of any personal chattel, it is otherwise with regard to food and liquors, in which, especially in the case of a publican (a victualler or inn- keeper,) the law implies a warranty.—Chitty's note on 3 Black. 122. 17. If any person shall practise physic or surgery, or any of the branches thereof, except midwifery, or in any case prescribe for the cure of diseases, for fee or reward, without a license first had and obtained for that purpose from the Board of Physicians of the state of Georgia, such person shall be indicted for a misdemeanor, and, on conviction, shall be fined in a sum not exceeding five hundred dollars for the first offence ; and for the second offence, be fined in a sum not less than two hundred nor more than five hundred dollars, and imprisoned in the common jail of the county, not longer than two months ; one half of the said fine in either case for the use of the informer, and the other half for the use of the county : Provided, nev- ertheless, that this section shall not apply to o-r operate on any person who was practising medicine or surgery within this state on the twenty-fourth day of December, in the year eighteen hundred and twenty-five. The law implies a contract on the part of a medical man, as well as those of other professions, to discharge their duty in a skilful and attentive manner, and the law will grant redress to the party injured by their neglect or ignorance, by an action on the case, as for tortious, misconduct.—1 Saund. 312, n. 2; 1 Ld. Raym. 213; 4 Reg. Brevium, 105, 6; 2 Wils. 359; [East. 348. And in that case the surgeon could not recover any fees. 18. If any apothecary, unless he is a licensed physician, shall vend or expose to sale drugs or medicines without previously obtaining a license to do so from the Board of Physicians of the state of Georgia, such apothecary shall be indicted for a misdemeanor, and, on convic- tion, be punished as is prescribed in the preceding section: Provided, that nothing herein contained shall so operate as to prevent mer- chants and shopkeepers from vending or exposing to sale any medi- cines or drugs already prepared: And provided also, that this section 60 CRIMES AGAINST [Part I. shall not operate against or upon any person or persons who has or have been engaged in the sale of drugs or medicines as apothecaries previous to the twenty-fourth day of December, in the year eighteen hundred and twenty-five. 19. On the trial of any indictment for either of the offences men- tioned in the two preceding sections, it shall be incumbent on the defendant to show that he has been acting under a license from the Board of Physicians of the state of Georgia, to exempt himself from the penalties of the section under which he may be indicted. 20. Any physician, surgeon, or other person, wilfully endeavouring to spread the small-pox, without inoculation, or by inoculation with matter of the small-pox, or using any other inoculation than that called vaccination, unless by special commission or authority from the inferior court of the county where the small-pox shall make its appearance, shall be indicted, and, on conviction, fined in a sum not exceeding one thousand dollars, and be imprisoned in the common jail at the discretion of the court. 21. Any person who shall come into this state by land or water from any place infected with a contagious disease, and in violation of quarantine regulations, shall be indicted in any county in this state in which he may be found, and, on conviction, sentenced to pay a fine not exceeding five hundred dollars, and also be imprisoned in the common jail at the discretion of the court. 22. Any person wandering or strolling about, or leading an idle, immoral, profligate course of life, who has no property to support him, and who is able to work, or otherwise to support himself in a respectable way, shall be deemed and considered a vagrant, and may be arrested by a warrant issued by any justice of the peace, mayor, or alderman, and bound in sufficient security for his good behaviour and future industry for one year; and upon his refusal or failure to give such security, he shall be committed and indicted as a vagrant, and, on conviction, shall be punished by confinement and labour pn the penitentiary for any term not less than two years, nor longer than four years.* 23. If any person shall be apprehended, having upon him or her any picklock, key, crow, bit, or other instrument, with intent to break and enter into any dwelling-house, warehouse, store, shop, coachhouse, stable, or outhouse, in order to steal, or commit any other crime; or shall have upon him any pistol, hanger, cutlass, bludgeon, or other offensive weapon, with intent to commit a crime on any person, which, if committed, would be punishable by death or confinement in the penitentiary; or shall be found in or upon any dwelling-house, warehouse, store, shop, coachhouse, stable, or outhouse, with intent to steal any goods or chattels, every such person shall be deemed a rogue and vagabond, and, on conviction, shall be punished by confine- ment and labour in the penitentiary for any time not less than one * In China it is a maxim,- that if there be a man who does not work, or a woman that is idle, in the empire, somebody must suffer cold or hunger; the produce of the lands not being more than sufficient, with culture, to maintain the inhabitants; and therefore, though the idle person may shift off the want from himself, yet it must in the end fall somewhere. Chap. 10.] PUBLIC MORALITY, &C. 61 year, nor longer than five years, or by imprisonment in the common jail of the county, at the discretion of the court. 24. All nuisances not here mentioned, which tend to annoy the community, or injure the health of the citizens in general, or to cor- rupt the public morals, shall be indictable, and punishable by fine, or imprisonment in the common jail of the county, or both, at the dis- cretion of the court. And any nuisance which tends to the imme- diate annoyance of the citizens in general, is manifestly injurious to the public health and safety, or tends greatly to corrupt the manners and morals of the people, may be abated and suppressed by the order of any two or more justices of the peace of the county, founded upon the opinion and verdict of twelve freeholders of the same county, who shall be summoned, sworn, and empanelled for that purpose; which order shall be directed to and executed by the sheriff of the county, or his deputy. And if the nuisance exist in town or city, under the government of a mayor, intendant, aldermen, war- dens, or a common council, or commissioners, such nuisance, by and with the advice of said aldermen, wardens, or council, or commis- sioners, may be abated and removed, by order of said mayor, or in- tendant, or commissioners, which order shall be directed to and executed by the sheriff or marshal of said town or city, or his deputy ; and reasonable notice shall in every case be given to the parties in- terested, of the time and place of meeting of such justices and free- holders, or of such mayor, intendant, and alderen, wardens, or; council, or commissioners. Provided always, that when the nuisance complained of, is a grist or saw mill, or other water machinery of valuable consideration, the same shall not be destroyed or abated, except upon the affidavits of two or more freeholders, before one or more of the justices of the inferior court of the county in which the nuisance complained of may exist, testifying that the health of the neighbourhood, according to their opinion and belief, is materially injured by such mill-dam, or other obstruction to a water-course by other machinery, as may be complained of; whereupon it shall be the duty of such inferior court, as soon as practicable, to cause a jury of twelve men to be drawn from the jury-box, and summoned for the trial of the case, who together with the said court shall attend at the courthouse of said county to adjudge the case of nuisance com- plained of; and both parties shall have a reasonable time allowed them to summon their witnesses and procure their attendance. Nuisances are the doing a thing to the annoyance of all the citizens, or the neglecting to do a thing which the common good requires. Common nuisances are such inconvenient or troublesome offences as annoy the whole community in general, and not merely some particular person; and therefore are indictable only, and not actionable, as it would be unreasonable to multiply suits, by giving every man a separate right of action for what damnifies him in common only with the rest of his fellow-citizens. Of this nature are all annoyances in roads, bridges, and public rivers, by rendering the same inconvenient or dangerous to pass by actual obstruc- tions, or by want of reparations, for both of these the person so obstructing, or such persons as are bound to repair and cleanse them, may be indicted and fined, and distrained to amend and repair them.* * But where a traveller or common carrier receives an injury from the bad condition 62 CRIMES AGAINST [Part I. Where a house is erected or enclosure made upon any part of the public lands, or of a road or common street, or public water, it is called pur presiure. All those kinds of nuisances which, when injurious to a private man, are actionable, are, when detrimental to the public, punishable by public prose- cution, and subject to fine according to the quantity of the misdemeanor; particularly the keeping of hogs in any city or market town is indictable as a public nuisance. All disorderly inns or ordinaries, tippling-houses, bawdy- houses, gaming-houses, booths, and stages for rope-dancers, mountebanks, and the like, are public nuisances, and may, upon indictment, be suppressed and fined. Inns or ordinaries, in particular, may be indicted, suppressed, and the keeper thereof fined, for refusing to entertain a traveller without a very sufficient excuse. The making and selling of fireworks and squibs, or throwing them about in any street, is, on account of the danger that may ensue, declared to be a common nuisance by statute 9 & 10 W. III. c. 7, and is indictable on the statute, or at common law.—Chitty's note on 4 Black. 168. Also, eaves-droppers, or such as listen under walls or windows, or the eaves of a house, to harken after discourse, and thereupon to frame slanderous or mischievous tales, are indictable as a nuisance, and punishable by -fine and finding sureties for their good behaviour. Also, a common scold, communis rixatrix, (for our law Latin confines it to the feminine gender,) is a public nuisance to her neighbourhood, for which, if convicted, she shall be placed on the cucking stool, or ducking stool, and be plunged in the water.* The master or head of the family is liable if any of his family lay or cast anything out of his house into the street, or common highway, to the damage of any individual, or to the common nuisance of the citizens; for he hath the superintendence and charge of all his household. 25. If any person or persons shall remove the dead body of any human being from the grave, or other place of interment, or from any vault, tomb, or sepulchre, or from any other place, without the consent of the friends of said deceased, except malefactors executed under sentence of the law, for the purpose of selling or dissecting the same, or from mere wantonness, such person or persons so of- fending shall be punished by fine or imprisonment in the common jail of the county, or both, at the discretion of the court; and any person who shall receive or purchase such dead body, knowing it to have been disinterred or removed from any tomb, vault, or sepul- chre, or such other place, for the purpose,-aforesaid, shall, on con- viction, receive the same punishment. 26. If any putative father of a bastard child or children, shall refuse or fail to give security for the maintenance and education of such child or children, when required to do so in terms of the law, such putative father shall be indicted for a misdemeanor, and on conviction of the fact of .being the father of such bastard child or children, and of his refusal or failure to give such security, he shall be punished by a fine of seven hundred dollars for each child, which said fine shall be paid over to the inferior court of the county, to be by them improved and applied from time to time, as occasion may require, for the maintenance and education of such child or chil- of a bridge or road, or the misconduct of a ferryman, &c. he has a right of action against the person who may be bound to keep the same in repair, or who attends the ferry; this remedy in Georgia is given by particular statutes in some cases. * This most ludicrous penalty was actually inflicted on a female, in the county af Baldwin, about the time of the first settlement of the county. Chap. 11.] PUBLIC MORALITY, &C. 63 dren; and if the offender is unable to pay the said fine or fines, he shall be punished by imprisonment in the common jail for the space of three months. 27. If any person shall keep a tippling-shop, retail liquors, or sell by retail in quantities less than one quart any wine, brandy, rum, gin, whiskey, or other spirituous liquors, or any mixture of such liquors, in any house, booth, arbour, stall, or other place whatever, without license from the inferior court of the county, except in cor- porate towns or cities, where, by law, authority to grant licenses is vested in the corporate authorities of such towns or cities, such person so offending shall be guilty of a misdemeanor, and, on con- viction, shall be fined in the sum of fifty dollars ; and on failure to pay such fine, shall be imprisoned in the common jail for the space of thirty days. 28. If any minister of the gospel, judge, justice of the inferior court, or justice of the peace, shall join together in matrimony any man and woman without a license, or publication of banns as provided by law, or where either of the parties within his own knowledge shall be an idiot or lunatic, or subject to any other disability which would render such contract or marriage improper and void, such minister, judge, justice of the inferior court, or justice of the peace, shall be guilty of a misdemeanor, and, on conviction, shall be fined in a sum not less than one hundred dollars, nor more than five hundred dollars, which said fine, when collected, shall be paid over to the jus- tices of the inferior court of the county where the offence was com- mitted, for the use of the poor school fund of said county. 29. If any person shall hereafter vote more than once at any elec- tion which may be held in any county of this state, or vote out of the county in which he may usually reside, for members of the legisla- ture, or for county officers, such person shall be indicted for a misde- meanor, and, on conviction, shall be punished by imprisonment and labour in the penitentiary, for any time not less than one year, nor more than two years. 30. If any person being twenty-one years of age or upward, shall hereafter buy or sell a vote, or be concerned in buying or selling a vote, or shall unlawfully vote at any election which may be held in any county in this state, such person shall be indicted for a misde- meanor, and, on conviction, shall be punished by imprisonment and labour in the penitentiary for a term not less than one year, nor more than four years. 64 CRIMES AGAINST [Part I. CHAPTER XI. Offences Committed by Cheats and Swindlers, and Offences against Public Trade. 1. If any person by false representation of his own respectability, wealth, or mercantile correspondence and connections, shall obtain a credit, and thereby defraud any person or persons of any money, goods, chattels, or any other valuable thing; or if any person shall cause or procure others to report falsely of his honesty, respecta- bility, wealth, or mercantile character, and by thus imposing on the credulity of any person or persons, shall obtain a credit, and thereby fraudulently get into possession of goods, wares, or merchandise, or any other valuable thing or things, such person so offending shall be deemed a cheat and swindler, and, on conviction, shall be pun- ished by fine, or imprisonment in the common jail of the county, or both, at the discretion of the court; and such person shall, more- over, be compelled by the order and sentence of the court to restore to the party injured the property so fraudulently obtained, if it can be done. 2. If any person or persons shall, by any fraud or shift, circum- vention, deceit, or unlawful trick, or device, or ill practice whatever, in playing at cards, dice, or any game or games, or in or by bearing a share or part in the stakes, wagers, or adventures; or in or by bet- ting on the sides or hands of such as do or shall play, obtain, or acquire to him or themselves, or to any other or others any money or other valuable thing or things whatever, such person or persons so offending shall be indicted, and, on conviction, shall be deemed a cheat, and shall be sentenced to pay a fine of five times the value of the money or other thing so won as aforesaid, and shall also be imprisoned in the common jail of the county, at the discretion of the court. 3. Any baker, or other person, selling bread under the assize established by the corporation of any city, town, or village, or the rules laid down by any law, shall be deemed a cheat, and, on con- viction, shall be punished by fine, or imprisonment in the common jail of the county, or both, at the discretion of the court. 4. If any person shall sell by false weights or measures, he or she shall besdeemed a common cheat, and,on conviction, shall be punished by fine or imprisonment in the common jail of the county, or both, at the discretion of the court. 5. The offences of forestalling, regrating, and engrossing, are hereby abolished. It may not, however,be amiss to show the nature of these offences. Fore- stalling was described by statute 5 6, Edward YI. c. 14, to be the buying or contracting for any merchandise or victual coming in the way to market; or dissuading from bringing their goods or provisions there; or persuading them to enhance the price when there: any of which practices may make the market dearer to the fair trader. Regrating was described by the same Chap. 11.] PUBLIC TRADE. 65 statute to be the buying of corn, or other dead victual, in any market, and selling it again in the same market, or within four miles of the place. En- grossing was also described to be the getting into one's possession, or buy- ing up large quantities of corn, or other dead victual, with intent to sell them again.—4 Black. 158. 6. If any person shall fraudulently counterfeit, or be concerned in fraudulently counterfeiting any brand or mark directed by law, or shall fraudulently cause or procure the same to be done, or shall use, export, sell, exchange, barter, or expose to sale, any bale, cask, barrel, hogshead, or vessel of any kind, or any other thing upon which a brand or mark is directed by law to be made, with such counterfeit brand or mark, knowing the same to be false and counter- feit, such person so offending shall, on conviction, be deemed a cheat, and be punished by a fine not exceeding two hundred dollars, and imprisonment in the common jail of the count)7 for a term not exceed- ing six months. 7. Any person who shall put or cause to be put into any bale or bales of cotton, hogshead or hogsheads, barrel or barrels, cask or casks of sugar or rice, or pork, beef, or other provisions, any dirt, rubbish, or other thing, for the purpose of adding to and increasing the weight or bulk of said cotton, sugar, rice, beef, pork, or other pro- visions or things, shall be deemed a common cheat, and, on conviction, shall be punished by a fine equal to the value of the thing thus fraud- ulently packed or put up, and imprisonment and labour in the peni- tentiary for any time not less than one year, nor longer than five years. The bare possession or ownership of such commodities so fraudulently packed or put up, shall not of itself authorize a conviction where sufficient evidence of knowledge or privity on the part of the owner, or the person in possession, may not be produced before the court and jury. 8. If any person shall falsely personate another, and thereby fraud- ulently obtain any money, goods, chattels, or other thing or things of value; or with the intention of thereby fraudulently obtaining any money, goods, chattels, or other valuable thing, such person so offend- ing shall be deemed a cheat and swindler, and, on conviction, shall be punished by imprisonment and labour in the penitentiary, for any time not less than one year, nor longer than five years; or in trivial cases, by fine and imprisonment in the common jail, at the discretion of the court. 9. Any person using any deceitful means or artful practice, (other than those which are mentioned and provided against in this code,) by which individuals or an individual, or the public, are or is defrauded and cheated, such person so offending shall be deemed a common cheat and swindler, and, on conviction, shall be punished by fine or imprisonment in the common jail, or both, at the discretion of the court. To constitute the offence of cheating, there must be an artful contrivance, and not a bare naked lie.—1 Nac Nally's Ev. p. 440. There must be either a false token or a conspiracy; for a false affirmation alone is not sufficient: as where a person falsely affirmed, on selling a sack of corn, that it contained a "Winchester bushel.—lb. 441. 66 CRIMES AGAINST [Part I. The distinction laid down and proper to be attended to, in all cases'of this kind, is this; that in such impositions or deceits, where common prudence may guard persons against their suffering from them, the offence is not in- dictable, but the party is left to his civil remedy for the redress of the injury that has been done to him.—Burr. Reports, 1125. If, however, a minor goes about the town, pretending to be of age, defrauds many persons by taking credit for considerable quantities of goods, and then insist on his non-age; the persons injured cannot recover the value of their goods, but they may indict and punish him for a common cheat.—Barl. 100. 10. If any person shall falsely represent or personate another, and in such assumed character shall answer as a witness to interrogatories, or do any other act in the course of any suit, proceeding, or prosecu- tion, or in any other way, matter, or tiling, whereby the person so personated or represented, or any other person, might suffer damage, loss, or injury, such person so offending shall, on conviction, be pun- ished by confinement and labour in the penitentiary, for any time not less than one year, nor more than five years. 11. If any person, by false representation of his or her solvency, shall induce another to become his or her bail, endorser, or security upon any recognisance, bond, note, bill of exchange, or other instru- ment for the payment of money, or performance of any personal du- ty, knowing at the time that he or she is insolvent; and such bail, en- dorser, or security shall suffer loss or damage in consequence of such undertaking and liability on his part, such person so offending shall be guilty of a misdemeanor, and on conviction, shall be punished by fine, and imprisonment in the common jail, at the discretion of the c< urt. 12 If any pedler or itinerant trader shall sell or vend any goods, v are , or merchandise, except such as are excepted by law, within this state, without a license from the proper authority for that pur- pose, such pedler or itinerant trader shall be guilty of a misdemeanor, and, on indictment and conviction thereof, shall be fined in a sum not less than one thousand dollars, nor more than three thousand dollars, to be applied as pointed out by law ; and the defendant shall stand committed until the said fine be paid. CHAPTER XII. Fraudulent or Malicious Mischief. 1. If any person shall fraudulently or maliciously tear, burn, or in any other way destroy any deed, lease, will, bond, or other writing, sealed ; or any bank bill or note, check, draft, or other security for the payment of money or the delivery of goods ; or any certificate, or other public security of this state, or of the United States, or any of them, for the payment of money; or any receipt, acquittance, re- lease, discharge of any debt, suit, or other demand ; or any transfer or assurance of money, stock, goods, chattels, or other property ; or any letter of attorney or other power ; or any daybook, or other book of accounts; or any agreement or contract whatever with in- Chap. 12.] PUBLIC TRADE. 67 tent to defraud, prejudice, or injure any person or body politic or corporate, such person so offending shall, on conviction, be punished by imprisonment and labour in the penitentiary for any time not less than one year, nor longer than four years ; or in trivial cases, by im- prisonment in the common jail, or by fine, or both, at the discretion of the court. 2. If any person shall knowingly, maliciously, or fraudulently Be it remembered, that on the tenth day of Au' Baldwin County. > gust, in the year of our Lord one thousand eight hundred and. thirty-five, George Huntsville, of Milledgeville in the said county, came before me, Isaac T. Cushing, one of the justices of the peace of and in the said county, and did acknowledge himself to owe to his excellency the governor of said state, and his successors in office, the sum of five hundred dollars current money of this state, under condition, that if he shall personally appear before the judge of the superior court, at the next superior court to be holden in and for the said county of Baldwin at the court in Milledgeville on the second Monday in January next, in the year of our Lord one thou- sand eight hundred and thirty-six, then and there to give evidence in behalf of the state against Richard Roe, late of Baldwin county, who being arrested and suspected of forgery, is now committed to the common jail of and for the said county, then this recognisance to be void, otherwise of force. Taken before me, the day and year aforesaid, I. T. Cushing, J. P. George Huntsville. (L. ►>.) Chap. 4.] PRECEDENTS. 115 55. Form of a Recognisance without Sureties. Georgia, ) Be it remembered, that on the tenth day of Baldwin County. \ August, in the year of our Lord one thousand eight hundred and thirty-jive, John Doe, of Milledgeville in the county aforesaid, personally came before me, Isaac T. Gushing, one of the justices of the peace for the said county, and acknowledged himself to owe to his excellency the governor of said state, and his successors in office, the sum of fifty dollars, of good and lawful mo- ney of the said state, to be made and levied on his goods and chattels, lands and tenements, to the use of the said state, if he, the said John Doe, shall fail in the condition under written (or endorsed) {Insert the condition required by the charge.) Acknowledged before me, J. T. Cushing, J. P. 50. Recognisance for the Peace or Good Behaviour. Georgia, ) Know all men by these presents, that we, Baldwin County. ) Richard Roe and Thomas Goodman, axe held and firmly bound unto his excellency the governor of said state for the time being, and his successors in office, in the just and full sum of one thousand dollars, for the true payment, of which we bind our- selves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this tenth day of August, one thousand eight hundred and thirty-five. The condition of this recognisance is such, that if the above bound Richard Roc shall personally appear at the superior court to be held for the said county on the second Monday in January next, to do and receive what then and there shall be enjoined him by the court, and in the mean time shall keep the peace (or be of good behaviour) towards this state and the citizens thereof, and especially towards John Doe of the said county, then said recognisance shall be void, or otherwise remain in full force. Acknowledged before me, Richard Roe. (L. S.) I. T. Cushing, J. P. Thomas Goodman. (L. S.) 57. Mittimus for want of Security for Good Behaviour. Georgia, ) By Isaac T. Cushing, one of the justices of the Baldwin County. ) peace of and for the said county. To the keeper of the common jail of the said county, greeting. Whereas, Richard Roe hath been complained against by John Doe, as a vagrant, and as a person who hath no apparent means of subsist- ence, and who neglects applying himself to any honest calling, but wanders about, though able to work and support himself in a repu- table way, and endeavours to maintain himself by gaming or other undue means, leading an idle, immoral, and profligate course of life ; and thereupon the said Richard Roe hath been brought before me, and hath been examined, and proofs heard by and before me concerning the premises; and upon such proofs I, the said justice, have been 116 PRECEDENTS. [Part II. convinced of the truth of the said charge, and have required the said Richard Roe to provide and produce sureties for his good behaviour and future industry; and he the said Richard hath refused and ne- glected to produce the same. These are, therefore, to command you to receive into your said jail the said Richard Roe for the crime afore- said, there to remain until he gives security for his good behaviour and future industry; and Upon failure so to do, until the next superior court for said county, then and there to answer the aforesaid charge, according to law. Given under my hand and seal, the tenth day of Jlugust, in the year of our Lord one thousand eight hundred and thirty-jive. I. T. Cushing, J. P. (L. S.) 58. Form of a Mittimus, where one fails to find Sureties for the Peace or Good Behaviour. Georgia, ) By Isaac T. Cushing, & justice of the peace for Baldwin County. $ said county. To Chappell Boulwell, one of the constables of the said county, and to the keeper of the common jail of and for said county. Whereas. Richard jRoe.of the said county, is now brought before me, requiring him to find sufficient sureties to be bound with him in a re- cognisance for his personal appearance at the next superior court to be held in and for the said county, and in the mean time to keep the peace (or be of the good behaviour) towards the said state and all the citizens thereof, and especially towards John Doe of the said county. And whereas he, the said Richard Roe, hath refused and doth now refuse before me, to find such sureties. These are, therefore, to command you, the said constable, forthwith to convey the said Richard Roe to the common jail of the said county, and to deliver him to the keeper thereof there, together with this precept. And I also hereby command you, the said keeper, to receive the said Richard Roe into your custody in the said jail, and him there safely to keep until he shall find such sureties as aforesaid. Given under my hand and seal, at Milledgeville in the said county, the tenth day of Jlugust, 1835. I. T. Cushing, J. P. (L. S.) If afterward, or while the warrant is out against him, he finds sure- ties before a justice of the peace, then the justice issues a supersedeas, thus:— 59. Supersedeas. Georgia, ) By Isaac T. Cushing, one of the justices of the Baldwin County. ) peace in and for the said county. To the sheriff, constables, and other the ministers and citizens of this state. Forasmuch as Richard Roe, of the said county, hath personally been before me, at Milledgeville in the said county, and hath found sufficient surety, that is to say, Thomas Goodman, of the said county, who hath undertaken, jointly with the said Richard Roe, under the pain of five hundred dollars, that he the said Richard Roe shall personally appear Chap. 4.] PRECEDENTS. 117 at the next superior court to be held for the said county, then and there to do and receive what shall be enjoined him by the said court, and in the mean time shall well and truly keep the peace (or be of the good behaviour) towards the said state and all the citizens thereof, and especially towards John Doe, of the said county. These are, therefore, to command you, and every of you, that you utterly forbear and surcease to arrest, take, imprison, or otherwise by any means for the said cause to molest the said Richard Roe; and if you have for the said occasion and none other taken and imprisoned him the said Richard Roe, that then him you deliver or cause to be delivered and set at liberty, without further delay. Given at Milledgeville in the said county, under my hand and seal, the tenth day of August, 1835. I. T. Cushing, J. P. (L. S.) CO. Recognisance of Rail in a criminal Case. Georgia, > Know all men by these presents, that we, John Baldwin County. ) Doe and Richard Roe, are held and firmly bound unto his excellency the governor of said state for the time being, and his successors in office, in the just and full sum of one thousand dol- lars, for the true payment of which we bind ourselves, our heirs, ex- ecutors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this tenth of August, eigh- teen hundred and thirty-five. The condition of the above obligation is such, that if the above John Dos shall personally appear before the superior court, to be held for said county on the second Monday in January next, then and there to answer to the state aforesaid, for and concerning {the felonious taking and stealing a black sheep,) the property of Robert Smith, with which the said John Doe stands charged before me, and shall not de- part thence without the leave of said court, then the above obligation to be void, else to remain in full force. Acknowledged before me, John Doe. (L.S.) I. T. Cushing, J. P. Richard Roe. (L.S.) CI. Form of an Affidavit to obtain a Bail Warrant. Georgia, ^ Before me, Isaac T. Cushing, a justice of the Baldwin County. ) peace for said county, personally appeared John Lookout, and being duly sworn, saith that Nathan Neverpay is justly indebted to him by note, in the sum of seventy-five dollars, and that he has reason to apprehend the loss of said sum, or some part thereof, unless the said Nathan Neverpay is held to bail. Sworn and subscribed before me, John Lookout. this tenth day of August, eighteen hundred and thirty-five. Isaac T. Cushing, J. P. [If the process is requested on the Sabbath, the party must swear, in addi- tion to the above, as follows :—"And further, that he apprehends such loss unless such process shall issue on the Sabbath day."] 118 HABEAS CORPUS. [Part II. 62. Bail Bond in Civil Cases. DCf3 ( The penalty must be double the debt.) Georgia, ) Know all men by these presents, that we, John Baldwin County. i Doe and Richard Roe, are held and firmly bound unto John Safeguard, sheriff of the cOunty aforesaid, in the sum of one thousand dollars, for the true payment of which we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this tenth day of August, eighteen hundred and thirty-five. The condition of the above obligation is such, that whereas a civil process, requiring bail at the suit of Charles Smith against the said John Doe, in an action of debt, returnable to the superior court of said county on the second Monday in January next, hath been served upon the said John: Now if the said John, in case he is cast in the said suit, shall well and truly pay and satisfy the condemnation of the court, or render his body to prison in execution of the same, in terms of the law in such cases made and provided, and upon failure thereof, the said Richard Roe will do for him, then the above obligation to be void, else to remain in full force. John Doe. (L. S.) Richard Roe. (L. S.) CHAPTER Y. Of the Habeas Corpus.* 1. In the four preceding chapters we have traced the several stages of the proceedings incident to criminal prosecutions in the natural order in which they occur,—from the obtainment of the warrant for the arrest of the offender to the final commitment. After the commitment of the accused to prison under a mittimus, the jurisdiction of the justice of the peace ceases; unless, indeed, he chooses to accept bail subsequently offered, in which case he may, as has been shown, (ante, c. 4, sec. 30,) liberate the party from prison by warrant to the jailer. The general method, however, of obtaining release after commitment is by the writ of habeas corpus, which is now to be examined. Of these writs there are' various kinds used by the English courts, for the purpose of removing prisoners from one court to another for the more easy administration of justice, (Schley's Dig. p. 262,) but which have no relation to the subject of illegal confinement, and therefore not necessary to be considered in this work; our principal object being to show the power of this writ in the liberation of the citizen from illegal im- prisonment. The principal statutory authority for this writ is found in the famous habeas corpus act, passed during the thirty-first year of Charles II., A. D. 1679, (Prin. Dig. 571,) and which, according to Blackstone, has in subsequent times reduced the general method of proceeding on these writs to the true standard of law and liberty. The one we propose now to examine, is called the habeas corpus ad * See Con. U, S., art. 1, s. 9; and Con. Georgia, art. 4, s. 9. Chap. 5.] habeas corpus. 119 subjiciendum, which is " the citizen's writ of right, and the great constitutional remedy against illegal confinement in whatever form it may be imposed. Of this there are two kinds—by common law and by statute."—See Schley's note on 31 Chas. II., p. '262. 2. The writ of habeas corpus at common law extends to all cases of illegal confinement, whether in a public prison or elsewhere ; therefore it lies for a wife confined by her husband—for a husband to have his wife brought up who is confined by another—for a father to bring up his child from the custody of a relation or other person, and generally for all persons who are illegally confined or detained by another, under any pretext or excuse whatever. Anciently, and before the statutes of 31 Chas. II. c. 2, the person to whom the writ was directed might have refused obedience to the first writ, and stood out an alias and pluries writ; but after this statute the courts determined to enforce obedience to the first writ in cases at common law, in the same manner as is required by the statute in cases of criminal, or supposed criminal matter ; and therefore, now the party to whom any writ of habeas corpus is directed, is compelled to make a return to the first writ, or an attachment will issue against him: and such return must be certain, and not equivocal, else an attachment will immediately issue.—Schley's Dig. 263. 3. The writ of habeas corpus as authorized, or rather commanded by this statute, (31 Ch. II., ch. 2,) extends only to the case of com- mitments for such criminal charge as can produce no inconvenience to public justice by a temporary enlargement of the prisoner; all other cases of unjust imprisonment being left to the habeas corpus at common law.—1 Black. 137. This statute was passed in conse- quence of the delays which frequently arose from sheriffs, jailers, and other officers, having the king's subjects in their custody, neglecting to make return to writs of habeas corpus by standing out an alias and pluries habeas corpus, and sometimes more, and by evading obe- dience to writs directed to them from superior tribunals.—1 Chit. Crim. Law, 120. The law of our state upon this subject provides,, that the judges of the superior courts, or any one of them, and the justices of the inferior courts, or any of them, in the absence of the judges of the superior courts, shall have power to issue writs of habeas corpus ; and in all cases to discharge, admit to bail, or remand to jail any prisoner, according to their discretion and the law of the land: Provided, that in all cases of a capital nature where a writ of habeas corpus shall be issued by a justice of the inferior court, it shall be necessary that one or more of the justices of such inferior court shall associate with the justice granting the same at the return thereof, and a majority of such justices shall concur in opinion on any decision or order aforesaid: and it shall be the duty of such justices to attend on one day's notice being given of the time and place of the return of such writ.—Prin. Dig. 206. This section is amended by act of 1823, which declares that it shall not be lawful for any one or more of the justices of the inferior courts of this state to discharge or admit to bail any person under a writ of habeas corpus, unless a majority of the justices of said court concur in opi- nion.—Daw. Comp. 211. 120 HABEAS CORPUS. [Part II. 4. In place of copying the entire act which is found in both Prince's and Schley's Digests, the following compendium of its provisions, relating to the bailment of prisoners, (and which is all that concerns our present inquiries,) is taken from Lamar's edition of Clayton's Ga. Justice, page 50. " If the commitment is for treason or felony, plainly and specially expressed in the warrant of commitment; also if any person is committed and charged as accessory before the fact to any petty treason or felony, or upon suspicion thereof, or with suspicion of petty treason or felony, which petty treason or felony shall be plainly and specially expressed in the warrant of commit- ment: in such cases the person shall not be bailed on a writ of habeas cor- pus ;* otherwise he may be bailed. " Also, if a person is committed for treason or felony specially expressed, yet if he shall in open court the first week of the term, or first day of assize, petition to be tried, and shall not be indicted some time in" the next term or assize after the commitment, he shall, upon motion the last day of the term or assize, be bailed unless it shall appear to the judge upon oath that the state's witnesses could not be produced within that time, and then, if he is not tried in the second term or assize, he shall be discharged. How a pris- oner may be discharged and acquitted in Georgia after indictment and for want of prosecutor, see post, c. 6, s. 18. " Previous to the aforesaid bailment, the prisoner, or some person on his behalf, shall demand of the officer or keeper a true copy of the warrant of commitment, which he shall deliver in six hours, on pain of one hundred pounds to the party grieved, for the first offence ; and two hundred pounds, and forfeiture of his office, for the second. " Then application is to be made in writing by the prisoner, or any person for him, attested and subscribed by two witnesses who were present at the delivery thereof, to any one of the judges of the superior or justice of the inferior court, either out of term time or whenever the said courts may be sitting, and a copy of the warrant of commitment shall be produced before them, or oath made that such copy was denied. But if any person hath wilfully neglected by the space of two terms to apply for his enlargement, he shall not have a habeas corpus granted in vacation. " This being done, any one of the judges shall award a habeas corpus under the seal of the court, on pain of five hundred poundsf to be marked in this * This part of this statute, I presume, is altered by our own act, which gives power to the judges of the superior courts, and, in their absence, to the justices of the inferior courts, to issue writs of habeas corpus, and in all cases to discharge, admit to bail, or remand the prisoner, according to their discretion and the law of the land.—See ante, s. 3. I apprehend, therefore, from the wording of our statutes, that it was intended to give power to the judge of the superior court, and justice of the inferior court, to issue a writ of habeas carpus in all cases, as well capital as others, either in vacation or in term time. If so then a habeas corpus lies in this state, and may be granted in vacation, to bring up a prisoner charged with treason or felony, plainly and specially expressed in the commitment, and that the officer to whom such writ is directed is bound to obey it, and bring up the prisoner, notwithstanding this clause of the statute.—Schley's Dig. p. 264. t But this section of the act relates only to cases of application to a judge in vacation time : for the judges may refuse such writ at their discretion if applied for in term time, and the penalty will not attach. It is only when they refuse in a ministerial capacity to allow a writ, that they are made responsible : for the allowance of a writ in vacation is not a judicial act. This section of the statute, then, does not in the least violate the common law principle, that " no suit or action lies for a judicial act."—Sch. D. 276, n. And further, in the construction of this statute, this obligation to issue a habeas corpus can only exist when the commitment is so general that the court cannot know its real occasion from the terms in which 'it is worded; for the courts are not compelled to award it without some reasonable ground be shown for further interference, 1 Chit. Crim. Law, 123 ; for although the writ of habeas corpus is, unless in excepted cases, (and there are no such in Georgia,) demandable of right, it does not issue as a mere matter of course, but must be obtained by motion to the court in term time, and by ap- plication to a judge in vacation. In support of this application, unless it be founded Chap. 5.] HABEAS CORPUS. 121 manner,—Per statutum tricesimoprimo Caroli Secundi Regis, (By the statute of the thirty-first of King Charles the Second,) and signed by the person that avail's the same ; and shall be directed to the officer or keeper,* returnable immediately. And the charges of bringing the prisoner shall be ascertained bv the judge, or court, that awards the writ, and endorsed thereon, not exceed- ing twelve pence a mile. " Then the writ shall be served on the keeper, or left at the jail with any of the under officers; and the charges so endorsed shall be paid or ten- -d( red to him: and the prisoner shall give bondt to pay the charges of carry- ing him back, if he shall be remanded, and that he will not make any escape by the way. " This done, the officer shall within three days after service (if it is within twenty miles) return the writ and bring the body,J and shall-then likewise certify the true cause of the imprisonment if above twenty miles and less than one hundred, then within ten days ; if above one hundred, then within twenty days, on like pain as before. "•Then if it shall appear to the judges that the prisoner is detained on a legal process, order, or warrant out of some court that hath jurisdiction of criminal matters, or by warrant of a judge or justice of the peace, for matters for which, by law, he is not bailable ; in such case the prisoner shall not be disehaiged.|| on an apparent defect in the commitment, an affidavit should be made stating the cir- cumstances under which the applicant considers himself entitled to relief; for if on a hare request this writ was issued, any person, even a felon when under sentence of death, might procure a temporary suspension of his confinement. And this writ, it is said, will not be granted on the mere affidavit of the prisoner ; but the application must be supported by other evidence.—1 Chit. Crim. Law, 124, 125. And it is said that none are to make request for the writ, but such as are committed by warrant of a ma- gistrate, and not those committed by rule or order of court.—lb. 123. * A habeas corpus directed in the disjunctive to the sheriff or jailer is bad, 1 Chit. Crim. Law, 126; for the obvious reason that the person having the custody of the prisoner is personally liable to an attachment in case of refusal to obey the writ; and because the writ must be returned by the very same person to whom it is directed.— Schley's Dig. 205, (n.) T " His own bond" are the words of the statute.—See Prin. Dig. 571. t By the English law there are some cases in which the person is warranted in re- turning, instead of the body, the reasons of the prisoner's detention. But as these cases of exception are the same in which by the statute the issue of the writ is pro- hibited, i. e. where the charge is for treason or felony, plainly expressed in the warrant, and as it has been shown that the writ issues in Georgia, in all cases, without exception, the jailer should not, when the judge has thought proper to issue the writ, venture to make any other return than that of the body. And it is no excuse for not complying with the requisition of the writ, that the pris- oner has not paid to the jailer the charges allowed by the act for his conveyance, but the court will allow them on the return.—1 Chit. Crim. Law, 127 ; and see Schley's Dig. 205, (n.) S> IS'o one can in any case controvert the truth of the return to a habeas corpus, or plead or suggest any matter repugnant to it. The court, therefore, cannot go out of the return in order to hear evidence and inquire into the truth of the fact; and there- fore, if enough appear on the return, to justify the detention of the party, he cannot be discharged. But the prisoner may confess and avoid such return by admitting the truth of the matters contained in it, and suggesting others not repugnant, which take olF the ell'cct of them. But although the court or judge sitting on the return of the haluus corpus, cannot examine into facts in order to discharge the party; yet such court or judge may examine by affidavit the circumstances of the fact on which the prisoner has been committed, in order to determine, on examination of the whole matter, whether it be reasonable to bail him or not, and what amount of bail ought to be required. If the returning officer, or other person, make a false return, the party grieved may obtain redress at law by an action on the case, and also by indictment or inf irmation on the criminal side of the court.—Schley's Dig. 276, 277, and the cases there cited. The court may refuse to bail or discharge the prisoner, although the commitment is informal and defective, if it appear from the depositions taken before the committing magistrate, and returned upon the habeas corpus, that there is a felony ; and in such Q 122 indictments, &c. [Part II " If he shall be discharged, he shall thereupon enter into recognisance to appear on his trial; and the writ and return thereof, and recognisance, shall be certified into the court where the trial must be. " But persons charged in debt, or other action, or with process in any civil cause, after their discharge for a criminal offence, shall be kept in custody for such other suit. " Any person so set at large shall not be recommitted for the same offence, unless by order of court, on pain of five hundred pounds to the party grieved."* CHAPTER YI. Of Indictments, Arraignments, Trial, Verdict, Judgment, and Execution. 1. Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which stales the offence in the terms and language of this code, or so plainly that the nature of the offence charged may be easily understood by the jury. The form of every indictment or accusation shall be as follows:— " GEORGIA, County. " The grand jurors sworn, chosen, and selected for the county of , to wit: , in the name and behalf of the citi- zens of Georgia, charge and accuse A. B. of the county and state aforesaid, with the offence of , for that the said A. B., (here state the offence and the time and place of committing the same, with sufficient certainty,) contrary to the laws of said state, the good order, peace, and dignity thereof." If there should be more than one count, each additional count shall commence with the following form:—"And the jurors afore- said, in the name and behalf of the citizens of Georgia, further charge and accuse the said A. B. with having committed the offence of , (here state the offence as before directed,) for that, &c." 2. All exceptions which go merely to the form of an indictment, case he will be remanded under a new and more formal mittimus; the court doing what the court or magistrate below ought to have done.—Schley's Dig. p. 266 ; and see ante, c. 4, s. 13. The doctrine contained in this note has been sustained by the present judge of the superior court in the Ocmulgee circuit, in the case of a habeas corpus, by William Hudson, in the county of Jones. * This section does not apply to a recommitment by a court or person having jurisdiction of the cause; and therefore if a justice of the peace or other judicial officer, should commit a person to jail for a crime, and the judge of the superior court, or justices of the inferior court, should on habeas corpus discharge such person without bail, because the warrant of commitment was not sufficient in law to hold him ; yet the same justice or any other, may recommit the same person for the same offence, upon a new and more perfect warrant. But if such prisoner had been discharged on bail', then a recommitment by such justice would be illegal, and he would be subject to the penalty of this act : because in such case he would have no jurisdiction, the party having been recognised to appear before a higher tribunal. Again, where one court commits a person for contempt, and a judge upon habeas corpus discharge such person from confinement: in such case the court which committed him may recommit for the same offence, and no action lies against such judge, for this statute applies only to individuals acting ministerially out of court, or to courts and magistrates having no jurisdiction of the cause.-^See the case of Yates vs. Lansing, 5 John. Rep. 282; Schley's Dig. 271, 272, note. Chap. G.] INDICTMENTS, &c. 123 shall he made before trial; and no motion in arrest of judgment shall he sustained for any matter not affecting the real merits of the of- fence charged in such indictment. 3. Upon every indictment, the prosecutor's name shall be endorsed, who, upon the acquittal or discharge of the person accused, shall be compelled to pay all costs which have accrued, if the grand jury by their foreman, upon returning " no bill," express it as their opinion that the prosecution was unfounded or malicious; or if the petit jury, upon returning a verdict of " not guilty," shall express a sifnilar opinion. 4. A person against whom a bill of indictment shall be preferred, and not found true by the grand jury, or who shall be acquitted by the petit jury of the offence charged against him or her, shall not be liable to the payment of the costs; and in all such cases, as also where persons liable by law for the payment of costs shall be un- able to pay the same, it shall and may be lawful for the officers sev- erally entitled to such costs, to present an account therefor to the judge of the court in which the said prosecutions were depending, which account being examined and allowed him, it shall and may be lawful for said judge, by an order of said court, to authorize and direct the sheriff or clerk to retain for his own use, and to pay to the attorney or solicitor general, and other officers of the court, the amount of their respective accounts, out of any moneys by him re- ceived for fines inflicted by the said court, or collected or forfeited recognisances. 5. It shall be the duty of the attorney or solicitor general to pros- ecute on all presentments of grand juries, where such presentment or presentments is or are for offences indictable by law ; and the en- dorscmcnt on the indictment by the attorney or solicitor general, that the same is founded on the presentment of a grand jury, shall be sufficient without any prosecutor's name appearing on the indictment. G. No person indicted, unless it be for an offence which may, on conviction, subject him or her to death, or imprisonment in the peni- tentiary for the term of three years or more, shall be put for his or her arraignment in the bar dock, or other place set apart in the court- room for the arraignment of prisoners. 7. livery person charged with a crime or offence which may sub- ject him or her, on conviction, to death, or imprisonment in the peni- tentiary for the term of three years or more, shall be furnished pre- vious to his or her arraignment with a copy of the indictment, and a list of the witnesses who gave testimony before the grand jury. 8. Every person charged with an offence shall, at his or her re- quest, or the request of his or her counsel, be furnished with a copy of the indictment, and a list of the witnesses who gave evidence be- fore the grand jury. 9. Upon the arraignment of a prisoner, the indictment shall be read to hiin or her, and such prisoner shall be required to answer whe- ther he or she is guilty or not guilty of the offence charged in the said indictment, which answer or plea shall be made orally by the prisoner, or his or her counsel: and if he or she shall plead guilty, such plea shall 124 INDICTMENTS, &C. [Part II. be immediately recorded on the minutes of the court by the clerk, to- gether with the arraignment; and the court shall pronounce upon such prisoner the judgment of the law, in the same manner as if such pris- oner had been convicted of the offence by the verdict of a jury; but at any time before judgment is pronounced, such prisoner may withdraw the plea of "guilty," and plead not guilty, and such former plea shall not be given in evidence against him or her, on his or her trial. 10. If the prisoner upon being arraigned shall plead "not guilty," or shall stand mute, the clerk shall immediately record upon the minutes of the court the plea of not guilty, together with the arraign- ment, and such arraignment and plea shall constitute the issue be- tween the prisoner and the people of this state. 11. If the prisoner upon being arraigned shall demur to the in* dictment, or plead to the jurisdiction of the court, or in abatement, or any special plea in bar, such demurrer or plea shall be made in writing; and if such demurrer or plea shall be decided against such prisoner, then such prisoner may nevertheless plead and rely on the general issue of not guilty. 12. If the clerk shall fail or neglect to record the arraignment and plea of the prisoner at the time the same is made, it may and shall be done at any time afterward by order of the court, and this shall cure the error or omission of the clerk. 13. The arraignment and plea or answer of the prisoner shall be entered on the indictment by the attorney or solicitor general, or other person acting as prosecuting officer on the part of the people of this state. 14. No prisoner shall be brought into court for arraignment or trial, tied, bound, or fettered, unless the court shall deem it necessary during his or her arraignment or trial. And if the health of the pris- oner, or other circumstances, should render it more convenient to the prisoner and his counsel that he or she should not be placed for his or her arraignment, or during his or her trial, within the bar-dock or other place assigned in the courtroom for prisoners, the court may grant the indulgence of removing the prisoner to any other place in the courtroom, or contiguous to it, requested by the prisoner or his or her counsel. 15. Every person indicted for a crime or offence which may sub- ject him or her, on conviction, to death, or four years imprisonment or longer in the penitentiary, may peremptorily challenge twenty of the jurors empanelled to try him or her. And every person indicted for an offence which may subject him or her, on conviction, to impris- sonment in the penitentiary for any time less than four years, may peremptorily challenge twelve of the jurors empanelled to try him or her. And the state shall be allowed one half the number of per- emptory challenges allowed the prisoner. 16. On every trial of a crime or offence contained in this code, or for any crime or offence, the jury shall be judges of the law and the fact, and shall in every case give a general verdict of "guilty," or " not guilty," and on the acquittal of any defendant or prisoner, no new trial shall on any account be granted by the court. Chap. 6.] INDICTMENTS, &C. 125 17. Every person against whom a bill of indictment is found, shall be tried at the term of the court the indictment is found, unless the absence of a material witness or witnesses, or the principles of justice, should require a postponement of the trial, and then the court shall allow a postponement of the trial until the next term of the court: and the court shall have power to allow the continuance of criminal causes from term to term, as often as the principles of justice may re- quire, upon sufficient cause shown on oath. IS. Anv person against wThom a true bill of indictment is found lor an offence not affecting his or her life, may demand a trial at the term when the indictment is found, or at the next succeeding term thereafter, which demand shall be placed upon the minutes of the court; and if such person shall not be tried at the term when the demand is made, or at the next succeeding term thereafter, Pro- vith (I, that at both terms there were juries empanelled and qualified to trv such prisoner, then he or she shall be absolutely discharged and acquitted of the offence charged in the indictment. 1!). No nolle prosequi shall be entered on any bill of indictment, after the case has been submitted to the jury, except by the consent of the defendant. 20. In all criminal cases, the following oath shall be administered to the petit jury, to wit:—"You shall well and truly try the issue formed upon this bill of indictment, between the state of Georgia and A. B. who is charged, (here state the crime or offence,) and a true verdict give according to evidence: So help you God." 21. The following oath shall be administered to witnesses in crim- inal cases, viz :—" The evidence you shall give to the court and jury upon the trial of this issue between the state of Georgia and A. B. who is charged with , (here state the crime or offence,) shall be the truth, the whole truth, and nothing but the truth: So help you God." 22. And the following oath shall be administered to witnesses intended to be sent before the grand jury:—" The evidence you shall give the grand jury on this bill of indictment, (or presentment, as the case may be, here state the case,) shall be the truth, the whole truth, and no-thing but the truth : So help you God." In every case in this code, the person whose property has been stolen, injured, destroyed, taken away, or fraudulently converted or conveyed, or whose name hath been forged to any instrument, or who hath re- ceived a personal injury, shall be a competent witness on the trial of the offender or offenders. 2.'f Where a person shall be prosecuted and convicted on more than one indictment, and the sentences are imprisonment in the penitentiary, such sentences shall be severally executed, the one after the expiration of the other; and the judge shall specify in each the time when the imprisonment shall commence, and the length of its duration. 21. All fines imposed by this act, not otherwise appropriated by this code, shall be paid over by the clerks of the superior court to the county treasurer, or in counties where there are no treasurers to clerks 1*20 INDICTMENTS, &C. [Part II. of the inferior courts for county purposes, except the county of Chatham, where the said fines shall be paid over to the corporation of the city of Savannah ; and the clerks of the inferior courts shall keep a fair account of the fines so received, and the time when re- ceived, and the names of the persons from whom the said fines were collected. 25. Every fine imposed by the court under the authority, and by virtue of this act, shall be immediately paid, or within such reasonable time as the court may grant. 26. In all cases where the term of punishment in the penitentiary is discretionary, the court shall determine that punishment, paying due respect to any recommendation which the jury may think proper to make in that regard. 27. Every person convicted in any county of this state of any crime or offence punishable with confinement in the penitentiary, shall, as soon as possible after conviction, together with a copy of the record of his or her conviction and sentence, be safely removed and con- veyed to the said penitentiary, by a guard to be sent therefrom for that purpose, and therein be safely kept during the term specified in the judgment and sentence of the court. 28. In all cases where persons are convicted and (Sentenced to imprisonment in the penitentiary, it shall be the duty of the clerks of the superior courts of the respective counties where such persons may be convicted and sentenced, to inform the principal keeper of the penitentiary immediately thereafter by mail, or by private con- veyance, where there is no post-office in the county, of the convic- tion and sentence of said convict, and that he or she is detained in the county jail, or under guard, as the case may be, subject to the order of the keeper aforesaid. 29. The trial of prisoners escaping from the penitentiary shall be had for such escape before the superior court of Baldwin county, and prisoners so escaping shall remain in the penitentiary, and be treated as other convicts, after their apprehension, until such trial shall take place ; and upon such trial, the copies of the records trans- mitted to the keeper of the penitentiary relative to the former trials of such prisoners, shall be produced and filed of record in the said superior court of Baldwin county. 30. When any person may be convicted of any offence which may subject him or her to confinement in the penitentiary, it shall be the duty of the presiding judge by his sentence to order the convict into custody, to be safely kept in jail, or if there be no jail in the county then in the nearest jail, or under a suitable guard, until he or she shall be demanded by a guard to be sent from the penitentiary, for the purpose of conveying such convict to the said penitentiary. 31. No person convicted of a crime in this state shall be allowed the benefit of clergy ; and in all cases where the penalty of death is annexed to a crime, the convict shall suffer that punishment. 32. The sentence of death shall be executed by publicly hanging the offender by the neck, until he or she is dead. 33. It shall be the duty of the judges of the superior courts to fhap. G.] INDICTMENTS, &C. 127 make a special report annually to the governor of this state previous to the meeting of the General Assembly, and by him to be sub- initted to the legislature, of all such defects, omissions, and imper- feetii nis in this code, as experience on their several circuits may suuiiest. 31. All crimes and offences committed shall be prosecuted and punhhed under the laws in force at the time of the commission of such crime or offence, notwithstanding the repeal of such laws before mi h trial takes place. .'Jo. Indictments for murder may be found and prosecuted at any time after the death of the person killed. In all other cases (except murder) where the punishment is death, or perpetual imprisonment, indictments shall be filed and found in the proper court within seven y«*ars next after the commission of the offence, and at no time there- aft< r. In all other felonies, the indictments shall be found and filed in the proper court within four years next after the commission of the offence, and at no time thereafter. And in all other cases where the punishment by law is fine or imprisonment, or fine and imprison- ment in the common jail of the county, indictments shall be found and filed in the proper court within two years after the commission of the offence, and at no time thereafter: Provided nevertheless, that if the offender shall abscond from this state, or so conceal himself that he cannot be arrested, such time during which such offender has been absent from the state, or concealed, shall not be com- puted or constitute any part of the said several limitations: Pro- riiJcd also, that all crimes heretofore committed shall be governed by the like limitations, to be computed from the first day of June next. 3G. When a person shall be convicted on circumstantial evidence alone, of a crime, the punishment of which is death, the judge before whom the conviction takes place, or who passes the sentence of the law on the convict, shall have the power to commute the punishment of death for that of imprisonment and labour in the penitentiary during the natural life of the said convict. 37. If after any convict shall have been sentenced to the punish- ment of death he shall become insane, the sheriff of the county, with the concurrence and assistance of the inferior court thereof, shall summon a jury of twelve men to inquire into such insanity ; and if it be found by the inquisition of such jury that such convict is insane, the sheriff shall suspend the execution of the sentence directing the death of such convict, and make report of the said inquisition and suspension of execution to the presiding judge of the district, who shall cause the same to be entered on the minutes of the superior court of the county where the conviction was had. And at any time thereafter, when it shall appear to the presiding judge, either by inquisition or otherwise, that the said convict is of sound mind, the said judge shall issue a new warrant, directing the sheriff to do execution of the said sentence on the said convict, at such time and place as the said judge may appoint and direct in the said warrant, v\ hich the sheriff shall be bound to do accordingly. And the said 128 INDICTMENTS, &C. [Part II. judge shall cause the said new warrant and other proceedings in the case to be entered on the minutes of the said superior court. 38. If a female convict, sentenced to the punishment of death, shall be found pregnant with child, the sheriff, with the concurrence and assistance of the inferior court, shall select one or more physician or physicians, who shall make inquisition ; and if upon such inquisition it appear that such female convict is quick with child, the sheriff shall sus- pend the execution of the sentence directing the death of such female, and make report of the said inquisition and suspension of execution to the presiding judge of the district, who shall cause the same to be entered on the minutes of the superior court of the county where the conviction was had. And at any time thereafter, when it shall appear to the said presiding judge that the said female convict is no longer quick with child, he shall issue a new warrant, directing the sheriff to do execution of the said sentence, at such time and place as the said judge may appoint and direct in the said warrant, which the sheriff shall be bound to do accordingly. And the said judge shall cause the said new warrant and other proceedings in the case to be entered on the minutes of said superior court. 39. Whenever, for any reason, any convict sentenced to the pun- ishment of death shall not have been executed pursuant to such sen- tence, and the same shall stand in full force, the presiding judge of the superior court where the conviction was had, on the application of the attorney or solicitor general of the district, or other person prosecuting for the state, shall issue a habeas corpus to bring such convict before him ; or if such convict be at large, said judge, or any judicial officer of this state, may issue a warrant for his appre- hensron; and upon the said convict being brought before the said judge, either by habeas corpus, or under such warj-ant, he shall pro- ceed to inquire into the facts and circumstances of the case ; and if no legal reason exist against the execution of such sentence, such judge shall sign and issue a warrant to the sheriff of the proper county, commanding him to do execution of such sentence at such time and place as shall be appointed therein, which the said sheriff shall do accordingly. And the judge shall cause the proceedings in such case to be entered on the minutes of the superior court of the county. 40. Whenever any convict shall be sentenced to the punishment of death, the court shall specify the time and place of execution in such sentence, which time shall not be less than twenty days, nor more than sixty days from the time of the sentence, except in the case of a female convict who is quick with child at the time ; in which case, the court may and shall appoint some day that will arrive after she shall have been delivered of such child. 41. When an offence shall be committed on the boundary line of two counties, it shall be considered and adjudged to have been corn- mitted in either county, and an indictment for such offence may be found and tried in, and conviction thereon may be had in either of said counties. 42. When any mortal wound shall be given, or any poison shall Chap. 6.] INDICTMENTS, &C. 129 be administered, or any other means shall be employed in one county by which a human being shall be killed, who shall die thereof in another county, the indictment shall be found, and the offender shall be tried in the county where the act was performed or done, from which the death ensued. 43. No lunatic or person afflicted with insanity shall be tried, or put upon his trial for any offence during the time he is afflicted with such lunacy or insanity. 44. No person shall be convicted of an assault with intent to com- mit a crime, or of any other attempt to commit any offence, when it shall appear that the crime intended, or the offence attempted, was actually perpetrated by such person at the time of such assault, or in pursuance of such attempt. 45. Upon the trial of an indictment for any offence, the jury may find the accused not guilty of the offence charged in the indictment, but guilty of an attempt to commit such offence, without any special count in said indictment for such attempt: Provided the evidence before them will warrant such finding. 46. If any person who has been convicted of an offence, and sen- tenced to confinement and labour in the penitentiary, shall after- ward commit a crime, punishable by confinement and labour in the penitentiary, and be thereof lawfully convicted, such convict shall be sentenced to undergo and suffer the longest period of time and labour prescribed for the punishment of such offence, of which he stands convicted. 47. On the trial of any convict in the penitentiary for the crimes of escape and mutiny, or either of them, any other prisoner or con- vict not included in the same indictment, shall be a competent wit- ness ; and the infamy of his character, and of the crime of which he has been convicted, shall be exceptions to his credit onty. 48. On all trials for crimes or offences on the criminal side of the court, where the punishment is death, or imprisonment and labour in the penitentiary, any juror may be put upon his voir dire ; and the following questions shall be propounded to him, viz.:—" Have you formed and expressed any opinion in regard to the guilt or innocence of the prisoner at the bar ?" If the juror shall answer in the nega- tive, then the following question shall be propounded to him:— " Have you any prejudice or bias resting on your mind, either for or against the prisoner at the bar?" And if the juror shall so answer these questions as to make him a competent juror, the state or the prisoner may nevertheless have the right to put such juror upon his trial in the manner pointed out by law, and to prove such juror in- competent. 49. Any person sentenced to confinement and labour in the peni- tentiary, is, and shall be thereby rendered incapable of holding or exercising any public or private office, trust, power, or authority, and any such held by him, shall become and be vacant by virtue of such sentence. 50. When two or more defendants shall be jointly [indicted for any offence, any one defendant may be tried separately, except- R 130 EVIDENCE. [Part II. such offences as require the action and concurrence of two or more to constitute the crime ; and, in such cases, the defendants shall be tried jointly. 51. On the trial of any indictment for an assault, or an assault and battery, the defendant may give in evidence to the jury any opprobrious words, or abusive language used by the prosecutor, or person assaulted or beaten ; and such words and language may or may not amount to a justification, according to the nature and extent of the battery; all which shall be determined by the jury.* 52. On the trial of the question of insanity, arising after the per- son shall have been condemned to die, provided for by the thirty- seventh section of this code, the following oath shall be administered to the jury, to wit:—" You and each of you do solemnly (swear or affirm) that you will well and truly try this issue of insanity between this state and (A. B.) now condemned to die, and a true verdict give according to evidence : so help you God." 53. That on the trial of all cases where the party, if found guilty, would be subjected to confinement in the penitentiary, or to any greater punishment, it shall be the duty of the presiding judge to have the testimony given in said cases taken down ; and in the event of the jury returning a verdict of guilty, the testimony shall be entered on the minutes of the court, or a book to be kept for that purpose. CHAPTER VII. Evidence— Witnesses—Interrogatories. 1. The party who makes an affirmative allegation, which is denied by his adversary, is in general required to prove it. For the nega- tive not admitting in its nature of direct proof, the party who denies a fact is not called upon to give that evidence which can only be cir- cumstantial, till some evidence has been given to prove the fact alleged. But in cases where a man is charged with not doing an act which by law he is liable to do, a different rule prevails; for the law presumes that every man does his duty to society, until the con- trary is proved.—Bull. n. p. 298. 2. The evidence must be applied to the particular fact in dispute. The best evidence which the nature of the case will admit of, must be produced. Thus, no parol testimony can be received of the contents of a contract in writing, which is in existence and in the * A question has arisen in some of the courts as to the time when the " opprobrious words, or abusive language," mentioned in this section should have been uttered, so as to authorize them to be given in evidence. We have not understood what was the construction given to the statute ; but would it not be the better opinion, that the words should have been used at the time of the assault, or during the altercation between the parties, to admit them as justification 1 Otherwise, any remote period of their ut- terance may be resorted to, as a justification for breaking the peace, Chap. 7.] EVIDENCE. 131 custody of the party.* The subscribing witness to a deed, if he be living in the state, is alone competent to prove its execution ; but if he be dead, or out of the state, or not to be found, (and therefore presumed to be dead or out of the state,) or become executor, ad- ministrator, heir, or legatee, (but not if become assignee,) or become blind, or mad, then his handwriting may be proved, as being the next best evidence. And if the handwriting of such subscribing witness cannot be proved, then proof of the handwriting of the obligor may be admitted.—Clayton's Justice, 121. 3. The law never gives credit to the bare assertion of any one, however high his rank, or pure his morals; but always requires the sanction of an oath. The few instances in which hearsay evidence can be admitted, are such as are in their very nature incapable of positive and direct proof. Of this kind are all those which can only depend on reputation. The excluding of hearsay evidence in ques- tions of pedigree, would generally prevent all testimony whatso- ever.—lb. 4. There is no other way of knowing the evidence of deceased persons, but by the relation of others, of what they have been heard to say.—3 T. It. 707 ; Peake's L. E. 172. 5. What a party admits, or that which another asserts in his pres- ence, and he does not contradict, is received as evidence against him; but not what is said by his wife, or any other member of his family in his absence.—Peake's Ev. 11. The admissions of a party are the highest evidence against him; and though his not contradicting an assertion made against him in his presence is admis- sible evidence, it is generally the weakest grade of evidence. 6. But a distinction must be made between an admission and an offer of compromise, after a dispute has arisen. An offer to pay a sum of money in order to get rid of an action (which the law calls buying one's peace) is not received as evidence of a debt: but ad- missions of particular articles of an account are good evidence.— Bull. n. p. 236. 7. The confession of a felon, voluntarily made, is evidence against him on his trial. Not so if threats or promises have been made to induce him to confess. Yet, if in consequence of the confession so obtained, stolen property is found, evidence of that fact may be ad- mitted.—Leach, Cro. L. 299. 8. Where positive and direct evidence is not to be looked for, the proof of circumstances and facts consistent with the claim of one party, and inconsistent with that of the other, is deemed sufficient to presume the particular fact which is the subject of controversy. Long and undisputed possession of any right or property, affords a * Nor can the contents of a written contract in existence, but not in the custody of the party seeking to use it, be given in evidence by parol, till the party shall have com- plied with the sixth section of the judiciary act and the fifty-seventh rule of court, if in the superior or inferior court; if in a justice's court, with such rules as the justice may have adopted agreeably to law, for the production of written testimony in the posses- sion of the opposite party. When the written evidence is in the possession of a person not a party to the cause, a subpoena duces tecum should be obtained directed to such person, requiring him to produce it.—See post, s. 15, 25, 26, and 27. 132 EVIDENCE. [Part II. presumption that it had a legal foundation ; and rather than disturb men's possessions, even records have been presumed. But all such cases as rest on presumption, and not on positive proof, very slight evidence is sufficient to rebut and overturn, and to call on the different parties to establish their respective rights, by the ordinary rules of evidence.—Peake's Ev. 13. 9. Presumptions are of three sorts; violent, probable, and light and timerary. Violent presumption often amounts to full proof; as if one be run through the body with a sword in a house, whereof he instantly dieth, and a man is seen to come out of that house with a bloody sword, and no other man was at that time in the house. Probable presumption moveth little; but light or timerary, moveth not at all.—Clayton's Justice, 122. 10. This class of evidence, where the subject is treated of at large, and knbodied into a system, is usually divided and sub- divided into appropriate and technical parts, for the sake of order and perspicuity. But to follow that course on this occasion, would lead far beyond the necessary limits of the present work. There- fore, nothing more will be here attempted, than a general outline, and a few familiar rules.—Clayton's Justice, 122. 11. Acts of the assembly and judgments of our courts are de- nominated records, and are so respected by the law, that no evi- dence whatever can be received in contradiction of them ; but being the precedents of the law, to which every man has a right to have recourse, they are not permitted to be removed from place to place, to serve a private purpose, and are therefore proved by copies of them,* which, in the absence of the original, is the next best evidence. But a copy of a copy will not do.—lb. 12. A verdict of a jury in a civil cause is no evidence whatever, as against third persons, except where a man merely uses the name of another for his own benefit. And verdicts are no evidence, until final judgment is entered upon them.—lb. - But the representative of a party, such as his executor, administrator, heir, or assign, is not considered as a third person within this rule; for such representative is permitted to give the verdict in evidence.—Clayton's Jus- tice, 123. It is a general rule, that parties, and privies in blood or estate, are not considered as third persons, but verdicts and judgments in civil cases may be given in evidence either for or against them. 13. In the case of private deeds, or other instruments, the pro- duction of the original, if in existence, and in the power of the party using it, is always required; till which done, no evidence whatever of the contents can be received ; but where the original has been destroyed, or lost, by accident; or the party swears that it is not in his power, custody, or possession, and that he has used due diligence to procure it, then a regular copy may be received in evidence.—Clayton's Justice, 123. * How these records should be certified, when coming from another state, see post, sec. 23 of this chapter. How when in Georgia, see post, sec. 20 of this chapter. See deeds, post. Chap. 7.] E\1DENCE. 133 11. No person is permitted to deny any deed, bond, bill, single or penal note, draft, receipt, or order, but upon oath.—Prince's Dig. 2117. Endorsements by our law are not required to be proven, by virtue of this statute. 15. The courts shall have power, on the trial of causes cognisa- ble before them respectively, on ten days notice, and proof thereof being previously given to the opposite party, or his, her or their attorney, on motion, to require either party to produce books and other writings, in his, her or their possession, power or custody, which shall contain evidence pertinent to the cause in question, under circumstances where such party might be compelled to pro- duce the same, by the ordinary rules of proceeding in equity ; and if the plaintiff shall fail or refuse to comply with such order, it shall be lawful for the court, on motion, to give judgment against such plaintiff, as in case of nonsuit; and if the defendant shall fail or refuse to comply therewith, the court, on motion, shall give judgment against such defendant, as in case of judgment by default.—Prin. Dig. 206. See the act of 1829, post, sec. 25. 16. A note of hand may be proved, by proving the handwriting of the maker ; but if the subscribing witness is to be had, he ought to be produced.*—Clayton's Justice, 124. But handwriting cannot be proved by comparison of hands.—Peake's L. E. 69. 17. The book of a merchant or trader is no good evidence of itself for him ; but is good evidence to prove a debt against him. —Clayton's Justice, 124. 18. The merchant or trader, in order to make his books evi- dence for him, must prove the actual delivery of the goods in the account, or he must prove that such a one was his clerk, and that he is now dead, or removed to parts unknown, and that the entries are in his handwriting. It will not be sufficient to prove that the clerk has gone to another state or country.—lb. 19. It has been ruled in the superior courts, that where a book account for goods sold, is in the handwriting of the party himself; upon the production of said book; and the same appearing to be a regular book of accounts; and the entries fairly made; (that the party had no clerk,) and also proof by one or two respectable customers, that the party has been in the habit of keeping fair and just accounts, it shall be good evidence of such account.—Clayton's Justice, 124. 20. The certificate, or attestation of any public officer, either of the state, or any county thereof, shall give sufficient validity or authenticity to any copy or transcript of any record, document, or paper of file, in the respective offices under their control, manage- ment, or to which they may be lawfully attached, to admit the same as evidence before any court of law or equity of this state : Provided nevertheless, that nothing herein contained, shall be so construed, as to prevent any of the judges of the superior or infe- rior courts to require the original, or that it be accounted for.— * In Georgia this evidence can be necessary only, where the note is denied by the defendant on oath. 134 EVIDENCE. [Part II. Prin. Dig. 148. This section is amended by the act of 1830, as follows:— The certificate of any public officer, under his hand and seal of office, if one is attached thereto, either of this state or any county thereof, in relation to any matter or thing pertaining to their respective offices, or which by presumption of law, properly pertains thereunto, shall be admitted as evi- dence, before any court of law or equity in this state.—Acts of 1830, p. 121. 21. The certificates, protests, and other acts of public notaries un- der the hand and seal of such notary, in relation to the non-accept. ance of any bill of exchange, draft, or other order, made for the payment of money or other thing, and also in relation to the non- payment of any bill of exchange, draft, order, bond, or note for the payment of money or other thing, where such certificates probatis, or other acts, are required by law, shall be deemed and received by the several courts of law and equity in this state, as sufficient prima facie, or presumptive evidence, of the facts therein stated, without any further or other proof: Provided always, that nothing in this act contained, shall prevent either party from having the benefit of the testimony of such notary, should they deem it necessary: and Provided also, that the party relying on such notarial act, shall at the first term file in the court either a copy or the original of such protest or other act.—Daw. Comp. p. 209, 220. 22. In all causes now pending, or which may hereafter be insti- tuted in any of the courts of law or equity in this state against the principal and securities, or either of them, on any official bond, given by any executor, administrator, or guardian, or any public officer of this state, it shall be lawful for the said courts to receive as evidence of the fact of the due execution of said bond, a certified copy thereof, made by the proper officer, when such bond is of file or re- corded, which copy shall be sufficient testimony in the cause, unless the same shall be denied on oath.—Daw. Comp. 213. 23. The acts of t|ie legislatures of the several states shall be authen- ticated by having the seal of their respective states affixed thereto. The records and judicial proceedings of the courts of any state shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court an- nexed,if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form ; and the said records and judicial proceed- ings, authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the state from whence the said records are or shall be taken.—Laws of the United States, Inger- sol's Digest, 26. 24. All records and exemplifications of office books, which are or may be kept in any public office of any state, not appertaining to a court, shall be proved, or admitted in any other court or office in any other state, by the attestation of the keeper of the said records or books, and the seal of his office thereunto annexed—if there be a seal, together with a certificate of the presiding justice of the court Chap. 7.] EVIDENCE. 135 of the county or district as the case may be, in which such office is or may be kept, or of the governor, the secretary of state, the chan- cellor or keeper of the great seal of the state, that the said attesta- tion is in due form, and by the proper officer, and the said certificate, if given by the presiding justice of the court, shall be further authen- ticated by the clerk or prothonotary of the said court, who shall certify under his hand, and the seal of his office, that the said pre- siding justice is duly commissioned and qualified, or if the said cer- tificate be given by the governor, the secretary of state, the chan- cellor or keeper of the great seal, it shall be under the great seal of the state in which the said certificate is made ; and the same records and exemplifications authenticated as aforesaid, shall have such faith and credit given to them in every court, and office within the Uni- ted States, as they have by law or usage, in the courts or offices of the state from whence the same are or shall be taken.—Ingersol's Dig. Laws U. S. 77. 25. When any deed, bond, note, or other writing which it may be necessary to use as testimony in any cause which now is, or may be hereafter pending in any of the superior or inferior courts of this state, may be in the possession of any person not a party to said cause, and not resident within the county in which said cause is pend- ing, the clerk of the court in which said cause is pending, shall upon the application of the party, or his attorney desirous of procuring such testimony, issue a subpoena duces tecum,* directed to the per- son having such deed, bond, note, or other writing in his possession, and requiring him to be and appear, at the next term of said court, and to bring with him into said court the paper desired to be used as testimony, which said subpoena duces tecum shall be served thirty days before the court to which it is made returnable by a sheriff, constable, or some private person; and the return of the sheriff, constable, of such service, or the affidavit of such private person, shall be sufficient evidence that the subpoena was duly served. 26. When a subpoena shall be issued and served in terms of the preceding section, and the person whose attendance is hereby re- quired shall fail to comply with the requisitions thereof, it shall be the duty of the court, on motion to issue an attachment against such defaulting witness, returnable to the next term of said court, and shall fine such witness in a sum not exceeding three hundred dol- lars, unless he or she shalLmake a sufficient excuse for such failure, which shall be judged of by the court, but shall nevertheless be sub- iect to the action of the person at whose suit such witness shall have been summoned, for any damage which he, she, or they may have sustained by reason of such failure; Provided nevertheless, that if the person so subpoenaed shall, within ten days after the ser- vice of such subpoena, deliver to the party at whose instance the subpoena was served out, or his attorney, or file in the office of clerk of the court from which such subpoena issued, the paper, the produc- * For the form, see post, sec. 55. 136 EVIDENCE. [Part II. tion of which is required by such subpoena, or shall deliver to the said party or his attorney, or shall file in the said office, his affidavit that the said paper is not in his power, custody, possession, or con. trol, nor was it at the time of serving said subpoena ; then, and in that case, such delivery or filing of the paper so sought as aforesaid, or of such affidavit, shall be considered in full and complete compli. ance with the requisition of such subpoena duces tecum. 27. In any cause now (1829) pending, or which may hereafter be pending, in the superior or inferior courts of this state, where any party shall pursue the course pointed out in the two preceding sec. tions, but who is unable thereby to procure such written instrument, such party shall be permitted to go into parol evidence of the con- tents of such written instrument.—Daw. Comp. 226. 28. All persons, who are examined as witnesses, must be fully possessed of their understanding; that is, such an understanding as enables them to retain in memory the events of which they have been witnesses, and gives them a knowledge of right and wrong. As a general rule, fourteen is said to be the age at which a child may be a witness, for then all are supposed to have attained a com. petent knowledge of right and wrong; but short of that age, the receipt or rejection of his testimony must, in every case, depend upon the sense of religion and apparent understanding of the child, when examined, previously to the oath being administered to him. 29. A person deaf and dumb, if of sense to have intelligence con- veyed to him, may be a witness, and give his evidence by signs, through the medium of an interpreter. The oath to be administered to a witness is general, to speak the truth, the whole truth, and nothing but the truth. But see the oath prescribed for witnesses, in criminal cases.—Ante, chap. 6, sec. 21, 22. One witness is ge- nerally sufficient, but two are necessary against a person accused of trea- son, misprision of treason, or perjury. 30. If a witness is convicted of perjury, or of forgery, or felony, and not pardoned or burned in the hand, or if he hath by judgment lost his ears, or stood in the pillory, or hath been stigmatized, or branded, or whipped, for any infamous crime, he ought not to be received as a witness. To found this objection to the testimony of a witness, the party who intends to make it should be prepared with a copy of the judgment, regularly entered and properly certified, upon the verdict or confession ; for until such judgment is entered, the witness is not deprived of his legal privilege. But by the modern decisions on this subject, though a man cannot be asked any question tending to convict him of a crime, and therefore be put in danger from his own examination ; yet he may be asked whether he has not been already convicted and suffered the judgment of the law. The credit of a witness may be impeached by other witnesses, as to his general character, but not as to any particular crime whereof he was never convicted. 31. The competency of a witness is a question of law, to be decided by the court or justice, whether the evidence shall be received ; the credibility of a witness is a question of fact for the jury, which should always be considered in weighing testimony. Chap. 7.] EVIDENCE. 137 32. A person interested in the event of the cause, or a wife or husband of the party, or one who is to receive part of the penalty or forfeiture, is not a good witness. Yet in some criminal cases,* from the necessity of the thing, interested persons are allowed as wit- nesses; as, where the owner prosecutes an indictment for stolen goods, he is concerned in interest, for he will be entitled to restitu- tion: yet he is a good witness. So, where the Assembly offer a reward upon the apprehension and conviction of an offender to the taker, he may be allowed as a witness. So, too, if, by act of As- sembly, the apprehender be entitled to a reward upon conviction. —Trials of the rioters in 1780; Peake's L. E. n. p. 101. 33. A person convicted of felony, who has his clergy, and is burned in the hand, is a competent witness. So, too, is one who has been pardoned by the governor of felony, or treason against the state, after conviction or judgment. 34. A wife may be a witness against the husband for actual violences committed upon her own person; as, if a man hold his wife till an- other ravish her ; or where a man is indicted for a forcible marriage, or for bigamy, the second wife may give evidence against him, or he against her; or where the husband or wife demands sureties of the peace against each other. 35. One guilty of the same crime is a competent witness for or against the accused, at any time previously to the conviction of the witness. 3(3. In the cas# of murder, what the deceased declared after the wound was given is good evidence, if such declaration were made after all expectation of recovery were past, and when he was at the point of death. But if reduced to writing, that must be produced. 37. A justice has not a legal right to admit an accomplice to be- come a state's witness, upon a promise of pardon, or of not being prosecuted ; yet, if in a case of necessity he do make such a promise, and afterward the accomplice make a full and fair confession of the whole truth, and give evidence for the state, and that is made use of to convict the other offenders, and disclose all treasons and felonies which he knows of, the court will in such cases stop the prosecution against him : but if he conceals or misrepresents anything, the court will not stop the prosecution. 38. Any one who is a bare trustee, and no way concerned in inter- est, is a good witness, and may prove the execution of a deed to himself. 39. A witness laying a wager that the party for whom he is to be a witness will carry the cause, is a good witness notwithstanding ; for otherwise no unwilling witness could be made use of. 40. An attorney ought not to be admitted against his client, as to the knowledge of any fact acquired after that connection. 41. If a witness entitled to some interest or share in the suit will release, or tender a release of his interest; or if the party having * The same doctrine is said to prevail in some civil cases, from the necessity of the thing. S 138 EVIDENCE. [Part II a demand or cause of action against the witness will release him, or tender a releftse, he thereby becomes a good witness. 42. The whole of a confession must be taken together; as, if the defendant said he owed the debt, but had paid it—the whole mean- ing must be taken together. 43. All w itnesses going to, attending on, and returning from any of the said courts, shall be free from arrest on any civil process.— Prin. Dig. 206. 44. Where a witness in any cause shall have been duly summoned, and such witness shall fail to appear, it shall be the duty of the court, on motion, to issue an attachment against such defaulting witness, returnable to the next court, and shall fine such witness in a sum not exceeding three hundred dollars, unless he or she shall make a suffi- cient excuse for such non-attendance, which shall be judged of by the court; but shall nevertheless be subject to the action of the per- son at whose suit such witness shall have been summoned, for any damage which he, she, or they may have sustained by reason of such non-attendance. When a subpoena shall be served on any witness in conformity to this act, it shall be the duty of such person so sum. moned to attend from time to time until the cause in which such witness shall have been summoned is tried or be otherwise discharged by the court.—Prin. Dig. 210. 45. On the last day of the attendance of any witness in each term, it shall and may be lawful on application of such witness to exhibit his account for attendance, against the person or persons at whose suit he or they may have been summoned ; and the judge, or presi- ding justice, shall examine and certify the same under his hand, which shall be countersigned by the clerk ; whereupon such account so cer- tified shall have the force and effect of an execution, and may be levied by the sheriff or constable, according to the amount thereof, of the goods and chattels of such party in like manner as in cases of other executions: Provided, nevertheless, that where any witness shall claim and levy for more than is really due, such witness shall forfeit and pay to the party injured four times the amount of the sum so unjustly claimed. And no party cast in any suit shall be taxed for more than the costs of two witnesses to any material point in any cause, which shall be specially certified by the court trying the same; nor shall any party be allowed to tax costs for different wit- nesses to different material points, where the same witnesses shall be sufficient, in the opinion of the court, to prove such material points.— Prin. Dig. 210. 46. Where any witness resides out of the state, or out of any county in which his testimony may be required in any cause, it shall be lawful for either party, on giving at least ten days' notice to the adverse party, or his, her, or their attorney, accompanied with a copy of the interrogatories intended to be exhibited, to obtain a com- mission from the clerk of the court in which the same may be re- quired, directed to certain commissioners, to examine all and every such witness or witnesses on such interrogatories as the parties may exhibit; and such examination shall be read at the trial on motion of either party.—Prin. Dig. 211. Chap. 7.] evidence. 139 47. Where any witness resides out of the state or out of the county, or where any witness resides within the same, and being a seaman, patroon of a boat, stage-driver, mail-carrier^ aged or infirm personal and in all other cases where the evidence of any witness cannot be duly obtained, in which his or her testimony may be re- quired in any case, it shall be lawful for either party, on giving at least ten days' notice to the adverse party, or his, her, or their attor- ney, accompanied with a copy of the interrogatories intended to be exhibited, to obtain a commission from the clerk of the court in which the same may be required, directed to certain commissioners, to ex- amine all and every such witness or witnesses on such interrogatories as the parties may exhibit; and such examination shall be read on the trial on the motion of either party, any rule, ord,er, or law to the contrary notwithstanding.—Prin. Dig. 145. 48. If the testimony of any perstins residing within the said state shall be required in any suit pending ita any court of record in either of the United States, and he, she, or they shall refuse to appear be- fore commissioners appointed to take his or her examination, under a commission properly issued and authenticated agreeably to the laws and rules of the courts of the state from which it shall be sent, or appearing, shall refuse to answer to such legal interrogatories as shall be annexed to the said commission, and exhibited to him, her, or them, it shall be lawful for either of' the said commissioners, or the party upon whose application the said commission was issued, to apply to any judge of the superior courts of this state, or justice of the inferior court of the county within which such person whose tes- timony is required may reside; and upon producing before him such commission, and his being satisfied of its regularity, and on affidavit being made of such refusal, he shall issue a subpoena in the usual form, directed to such person or persons as aforesaid, requiring him, lier, or them to be and appear before the said commissioners, at a certain time and place, to answer to such legal interrogatories as may be annexed to the said commission and then exhibited to him : Provided, that he shall not be required to attend such examination and give answer to the said interrogatories within less than two days after the service of the said subpoena, neither shall he be obliged to attend for such examination out of the county where he resides, nor more than ten miles from the place of his residence ; and upon due service of the said subpoena upon such person or persons, the same shall be returned to the commissioners on or before the time ap- pointed for the examination, and the service of such subpoena proven by the return of the proper officer; and on the refusal or neglect of such person or persons to comply with its mandate endorsed on, or annexed to, the said subpoena, and returned to the superior or infe- rior court, as the case may require, of the county in which such per- son or persons reside, he, she, or they shall be subject for such ne- gleet or refusal to all the pains and penalties to which such person or persons would have been subject for a similar default in any cases pending in the courts of this state.—Prin. Dig. 143. 49. The act, entitled " An act the more effectually to ensure the tetimony of witnesses going beyond seas, or removing without the ju- risdiction of the state, and aged and infirm persons, passed the eighth 140 EVIDENCE. [Part II. day of December, 1806, be, and the same is hereby re-enacted, and declared to be operative and effectual in all cases pending or which may be brought in the several courts of this state."—Daw. Comp. 212. 50. In all cases which are or shall be pending in any of thi courts of this state, when any one person is the only witness to any mate- rial fact in any case, it shall and may be lawful to examine such wit- ness de bene esse, on complying with the provisions of the aforesaid act in so far as the same are applicable to such case, and that the examination so taken shall be read in evidence in such cause, on the terms and under the restrictions specified in the said act.—Daw. Comp. 212. 51. In case either plaintiff or defendant may deem any witness or witnesses material, on any cause or causes pending in any of the courts of law in this state, and who are going beyond seas, removing without the jurisdiction of the state aforesaid, or from age or other bodily infirmity may be unablfc personally to attend the said court, application by petition to the judge of the superior court, if the ac- tion is there pending, or, in his absence, to one or more justices of the inferior court, stating the grounds for such application, to which pe« tition the party so applying shall annex an affidavit, stating the mate- riality of the witness or witnesses, that he, she, or they are removing without the jurisdiction of the state aforesaid, or going beyond seas, or from age or bodily infirmity are unable to attend court, and that he cannot with safety proceed to trial without such testimony. And it shall be the duty of the judge, justice, or justices, to grant the prayer of the petitioner, and fix a day on which he or they will attend to receive and take the examination of such witness or wit- nesses ; and when he or they shall have so taken and received the testimony aforesaid, the same shall be sealed up and directed to the clerk of that court in which the suit or action may be then pending; Provided, always, the adverse parly have at least three days' notice for every twenty miles he, she, or they may reside from the place of taking such examination : and, Provided also, that in case the person or persons whose testimony shall have been taken return or be able to attend such court, that then and in that case such written testi- mony shall not be received or read.*—C. D. 323. For the form of taking such testimony, see post, sec. 56. 52. When the testimony of any female shall or may be required in any of the superior or inferior courts which may be held in this state, criminal cases only excepted, it shall and may be lawful for either party, on giving at least ten days' notice to the adverse party, or his, her, or their attorney, accompanied with a copy of the inter- rogatories intended to be exhibited, to obtain a commission from the clerk of the court in which the same may be required, directed to certain commissioners to examine all and every such witness or wit- nesses on such interrogatories as the parties may exhibit; and such examination shall be read at the trial on motion of either party.— Daw. Comp. 226. * This act was held to be superseded by the act of 1811, (sec. 47, ante.) Query, how far its revival supersedes the act of 18111—Lamar. Chap. 7.] EVIDENCE. 141 53. If any person, as above recited, shall refuse to appear before commissioners appointed to take her or their examination, or appear- ing, shall refuse to answer such legal interrogatories as shall be an- nexed to said commission, and exhibited to her or them, it shall be lawful for either of said commissioners, or the party upon whose ap- plication the said commission was issued, to proceed in conformity to the laws now in force pointing out the mode of proceeding in cases of failure or refusal to attend or answer interrogatories in other cases. —Ibid. Directions for executing and returning Interrogatories tb be used in this State. 54. You will first fill up the blank left for that purpose in the ded- imus (or commission) with the names (plainly written) of the com- missioners present, who must be either two or three in number. It is not necessary that either of them should be a justice of the peace or a freeholder; but they ought to be substantial, respectable men. The answers may be written on a separate sheet of paper, if (as is generally the case) that which contains the interrogatories is not suf- ficiently large ; but they must not be in the handwriting of any of the parties or of any attorney engaged in the case, nor must they be pre- viously written by any such person, and then transcribed. You first state the case exactly as it is stated at the head of the in- terrogatories, not omitting to put down (besides the names of the parties) the title of the action, (as trover, ejectment, or whatever it may be,) and also the court and county where it is pending. Then follows the caption in this form :— Georgia, ) By virtue of a commission from the honourable County. $ the (superior or inferior) court of county, to us directed, we have caused A. B., the person in the said commission named, to come before us, and being duly sworn true answers to make to certain interrogatories to the said commission an- nexed, deposeth and answereth as follows:— To the first interrogatory, he answers— To the second, he answers— And so on of the rest.* A. B. Answered, subscribed, and sworn to before us, this dav of 18 C. D. Com. (L.S.) E. F. Com. (L. S.) G. H. Com. (L. S.) The answers must then be annexed to the commission and the in- terrogatories, and all sealed up in one packet; and it is customary, but not indispensably necessary, to put as many seals as there are of- fieiating commissioners, and for the name of a commissioner to be written by himself across each seal. The names of the parties to * The answers of the witness, both to the direct and cross interrogatories, must be signed by the witness. 142 EVIDENCE. [Part II, the action should then be written on the back, and the packet directed to the clerk of tlie court from which the commission issued. If the packet is sent by a private hand, the same person who re. ceives it from the commissioners ought to deliver it into open court. If, however, this cannot possibly be done, let him deliver it into the clerk's office, making the usual oath of his having received it from the commissioners, or one of them, and that it has been in his pos. session ever since without being altered or opened, which oath let a justice of the peace administer in presence of the clerk. If it is to be sent by mail, let the postmaster of the office where it is received certify on the packet, (taking care to sign his name offi. dally,) that he received that packet from one of the commissioners; then let the postmaster at the place to which it is directed certify, in like manner, that he received it " by the due course of the mail." The person receiving it from the postmaster must follow the same direc- tions as those who receive the packet from the commissioners.* Where there are several Witnesses, they respectively depose and an- Sometimes the commission (or swer as follows : dedimus) includes several wit- The answers of A. B. nesses, some of the questions be- >p0 second interrogatory, ing addressed to one, and some jje answers: to another, and some others to T0 the fourth interrogatory, he both, or all. In such cases it is answers; best to have all the witnesses at hand, that the examination may The answers of I. P. be finished at one sitting. The To the fifth interrogatory, he caption may then run in this answers, &c. for™' c • • The answers of J. K. and L. M. By virtue ot a commission . . , . from the honourable the (superior the sixth interrogatory, they or inferior) court of county answrer, &c. to us directed,] we have caused A, B., J. K.,and L. M., the per- sons in the said commission named, to come before us ; and Answered, subscribed, and sworn each of them, being duly and to, before us, this day of severally sworn true answers to , 18 make to such of the interrogato- C. D. com. (seal.) ries to the said commission an- E. F. com. (seal.) nexed as are addressed to himself, G. H. com. (seal.) But if the witnesses cannot be collected so as to be examined on the same day, the answers of those who are present may be taken and certified as above ; the papers all remaining of course in the custody of the commissioners until the remaining witnesses can be examined. This will be done under a new caption, and their answers certified like the others, excepting the difference of date. When the examina- tion is completed, all the answers are to be annexed to the commis- sion, sealed up, and returned as before directed. * See the form of the commission—Rules of Court, post, c. 9. Chap. 7.] EVIDENCE. 143 It is not deemed indispensable that the same commissioners who shall have officiated in the first examination, should also act in the second. For instance, the blank in the commission being filled up with the names of C. D., E. F., and G. H., as commissioners, C. D. and E. F. may act in the first instance, and E.J?. and G. H. in the second: provided, one of these two last has had the custody of the answers taken by the two first. Tor the rules of the superior court in relation to interrogatories, see post, c. s. it;, 47; and for the manner of taking interrogatories in the magis- tj.tic's court, see p. '.I, c. 2. 55. Form of a Subpirna Duces Tecum to a person residing out of the County. Georgia, j To Mr. David Holden, greeting. Baldwin County, j You are hereby required, that laying all other A. B. y business aside, you be and appear at the next vs. | term of the superior court, to be held in and for C. D. J said county on the second Monday in January next, and to bring with you into said court [here describe the paper sought for particularly] which is intended to be used by the defendant as tes- timony in the above stated case, now pending in said court, (wherein A. B. is plaintiif and C. D. defendant:) herein fail not, under the penalty of three hundred dollars. Given under my hand, this tenth day of November, eighteen hundred and thirty-fire. Joel Maxwell, Clerk. 56. Form of a Petition for taking Testimony by Commission and de bene esse. Georgia, ) To his honour , one of the judges of Baldwin County. ) the superior court of said state. The petition of James Careful, showeth, that he has now a suit pending in the superior court of said county, James Careful vs. David Souk body, and for the successful prosecution of said cause your peti- tioner chiefly relies upon the evidence of one David York, and who is going beyond seas, removing without the jurisdiction of the state, (or, from age, or other bodily infirmity,) is unable personally to attend the said court. Your petitioner therefore prays that your honour' may cause a commission to issue for the purpose of taking his testi- mony, in conformity to the laws in such cases made and provided. And as in duty bound, will ever pray, &c., this tenth day of August, eighteen hundred and thirty-five. James Careful. Form of the Jljjidavit which must accompany the foregoing Petition. Georgia, ) Before me, Isaac T. Cushing, a justice of the Baldwin County. ) peace in and for said county, personally came James Careful, and being duly sworn saith, that in a cause now pending in the superior court of said county, James Careful vs. David Somebody, one David York is a material witness for deponent in said 144 COST IN CRIMINAL CASES. [Part II. cause, and that the said David York is removing- without the jurisdic. tion of the state aforesaid, (or going beyond seas, or from age, or other bodily infirmity, is unable to attend said court;) and that he cannot pro- ceed safely to trial without his testimony. James Careful. Sworn to and subscribed before me, this tenth day of Jlugust, one thousand eight hundred and thirty-five. I. T. Cushing, J. P. CHAPTER VIII. Cost in Criminal Cases. 1. Where any person or persons shall be prosecuted for any criminal offence, whether capital or otherwise, whether grand or petit larceny, whether as accessory before or after the fact, or any misdemeanor whatever, it shall be the duty of the officer issuing a warrant to arrest him, her, or them to direct the arresting officer in writing, under his hand and seal, to make diligent search for all and singular the estate, both real and personal, of such person or persons so arrested, or so much thereof as will be, in his opinion, sufficient for the payment of all legal costs and expenses that' may be incurred in such prosecution ; a true schedule of which property, so found and secured, the said arresting officer shall render to the court to which he returns the warrant so by him executed, unless the party arrested gives good security to pay the costs which may accrue on the prosecution. 2. In the event of the said person or persons, charged as aforesaid, being found guilty of the offence or offences wherewith he, she, or they were charged, that then and in that case all the property found as aforesaid, together with all and singular the estate, or estates, both real and personal, which he, she, or they possessed of his, her, or their own proper right at the time of his, her, or their arrest, shall, and the same is hereby declared to be subject and bound to the pay- ment of the costs and charges alluded to in the foregoing section.— Prin. Dig. 344; Daw. Comp. 202; and see acts of 1830, p. 123. If the person be acquitted ; see ante, p. 2, c. 6, s. 4. 3. It shall be the duty of the judges of the superior courts, in the event of any person or persons being found guilty of any offence as aforesaid, to cause judgment to be entered up for all costs which may have accrued by reason of said prosecution.—And see post, s. 5. 4. It shall be the duty of all officers entitled to costs on any con- viction had as aforesaid, to hand in their accounts into the clerk's office of the superior court within ten days after said conviction ; and within ten days after the receipt of the accounts in any case as afore- said, the said clerk shall issue execution for the amount appearing to be due by reason thereof, directed to, and to be collected by, the sheriff, as in other cases: Provided, that nothing herein contained Chap. 9.] RULES OP COURT. 145 shall be construed so as to prevent courts imprisoning persons found guilty, as aforesaid, until all costs are paid.—Daw. Comp. 202 ; see post, s. 6, 7. 5. It shall be the duty of the judges of the superior courts, in the event of any person or persons being found guilty, or upon report made to the court of an escape from the jail, or from an officer having in custody any criminal charged with the commission of any criminal offence as aforesaid, to cause judgment to be entered up for all costs which may have accrued by reason of said arrest and prosecution, in order to save the county where the offence may have been committed, or the arrest and escape had, from the liability of costs.—Acts 1830,121. ' 0. It shall be the duty of all arresting officers, and all others entitled to costs, on any conviction, or on any proceedings for the commission of crime, where an escape is made from the jail, or from an officer before confinement in jail, as aforesaid, to hand in their accounts into the clerk's office of the superior court within ten days after conviction, or escape of any criminal as aforesaid ; and in all cases where the arresting officer does not levy on a sufficiency of the property of the person or persons so charged, where there is property, which shall be judged of by the court, he shall not be permitted to take costs from the county, and in receiving of costs shall be last paid.—Acts 1830, 121. 7. It shall be the duty of said clerk, after the judgment of said court, in cases of conviction, or of the report of the escape of any person or persons, as aforesaid, within ten days after the receipt of the accounts in any case as aforesaid, to issue executions for the amount appearing to be due by reason thereof, directed to and col- leeted by the sheriff, as in other cases : Provided, nothing herein con- tained shall be so construed as to prevent courts from imprisoning persons found guilty, as aforesaid, until all costs are paid, or release any property which may have been levied on as aforesaid, where escapes may be effected, either from the jail or an officer having in custody any person or persons charged with the commission of crime. —Acts 1830, 121. CHAPTER IX. RULES OF PRACTICE it Lair and in Equity established by the Judges of the /Superior Courts of the State of Georgia, June 1 \th, 1835. COMMON LAW RULES. 1. The order of pleading shall correspond with that laid down by Judge Blackstone ; and in no cause shall more than one counsel be heard in conclusion. 146 RULES [Part II. Appeals. 2. No appeal shall be entered unless good security is given: ex- ceptions to the security on the appeal must be taken on or before the last day of the first term of the appeal; and if such exceptions are sustained, other and good security shall be given, or the appeal will be dismissed. If the security, good at first, becomes insolvent pend- ing the appeal, the party appealing shall give other good security, in the discretion of the court, or the appeal shall be dismissed. 3. Appeals must be entered by the appellant in person, or by his attorney at law, or by any attorney in fact, duly authorized by warrant for that purpose ; which warrant shall be filed in the clerk's office at the time of entering the same. Upon cause shown, the court will al- low time to file such warrant; but such appeal shall be of course dis- missed ; and execution issue without further order, if such warrant be not filed within the time allowed. 4. Appeals shall be tried at the first term after the appeal has been entered, unless good cause be shown for a continuance ; among which good causes of continuance, a motion on oath, to make a substantial amendment to either declaration or answer shall be considered suf- ficient, unless the opposite party shall permit the amendment to be made instanter. No appeal case shall be continued more than twice by the same party, but for unavoidable providential cause. 5. When an appeal is entered, either of the parties litigant may make any amendment of the declaration or answer they may deem necessary. The party amending shall give notice thereof in writing, accompanied by a copy of the amendment to the adverse party, three months previous to the next term after the appeal; and if the party amending fail to give such notice, and the adverse party will state on oath, or the attorney at law state in his place, that he is taken by surprise, and is less prepared for trial in consequence of the amend- merit, the cause shall be continued at the instance of the amending party. 6. The following shall be the form of the recognisance upon an appeal to be taken by the several clerks of the superior and inferior courts in all cases of appeal; which recognisance shall be entered on the minutes of the court and attested by the clerk. A. B. ) and verdict for the for dollars and vs. > cents and cost The being dissatisfied with C. D. ) the verdict of the jury rendered in the above cause, and having paid all cost and demanded an appeal, brings E. F. and tenders him as his security, and they, the said and E. F., ac- knowledge themselves jointly and severally bound to the for the payment of the eventual condemnation money in said cause. In testimony whereof, they have hereunto set their hands and seals this day of 18 L. S. L. S. Chap. 9.J or COURT. 147 Answers. 7. In all cases, the answer of the defendant to a plaintiff's declara- tion shall plainly, fully, and distinctly set forth the causes and points of defence, and the evidence on trial shall be confined to the same. Attorneys. 8. Every person making application for admission to the bar, must apply t0 some superior court in this state, and produce satisfactory evidence to the court of his being twenty-one years of age, of good moral character, and of his having read law. A certificate of good moral character, and of the applicant's being of full age, signed by any judge of the superior court of this state, or any reputable practising attorney thereof, will be deemed sufficient; but from all other per- sons, a written affidavit will be required—and shall undergo the whole examination touching his qualification in open court. All applicants for admission shall be examined on the principles of the common and statute law of England in force in this state, the principles of equity, the constitution of the United States, and of the state of Georgia, the statute laws of this state, and the rules of court. And in no case shall any person be admitted who shall not be considered by the court to be qualified for the practice of the law. And the following oath shall be administered to every applicant upon his admission, viz.:— I, A. B., do solemnly swear, (or affirm, as the case may be,) that I will justly and uprightly demean myself according to law as an attorney, counsellor, and solicitor; and that I will support and defend the constitution of the United States, and the constitution of the state of Georgia : So help me God. After which, the following commission shall be issued by the clerk. STATE OF GEORGIA. At a superior court holden in and for the county of at term, 18 Know all men by these presents, That at the present sitting of this court A. B. made his application for leave to plead and practice in the several courts of law and equity in this state : Whereupon, the said A. B. having given sat- isfactory evidence of good moral character, and having been examined in open court, and being found well acquainted and skilled in the laws, he was admitted by the court to all the privileges of an attorney, solicitor, andcoun- sellor in the several courts of law and equity in this state. (L. S.) In testimony whereof, the presiding judge has hereunto set Iiis hand, with the seal of the court annexed, this day of in the year 18 C. D. E. F. Clerk. Judge Superior Court—Dt. Geo. 9. No attorney shall ever attempt to argue or explain a case, after having been fully heard, and the opinion of the court has been fully pronounced, on pain of being considered in contempt. 10. In all cases where payment or satisfaction shall be made on any judgment or execution, either in whole or in part, it shall be the duty of the attorney receiving the same, forthwith to enter an acknowledgment thereof, and affile the same of record in the office of the clerk of the court where such judgment was rendered ; and 148 RULES [Part II. such clerk is required to record such acknowledgment among the other proceedings in the cause, and also to make a note thereof on the docket of judgment opposite the place where such judgment is entered. And any attorney failing to comply with this rule, on or before the last day of the term next succeeding the making of such payment or satisfaction, shall be considered in contempt, and shall pay a fine not exceeding twenty-jive dollars, which it shall be the duty of the court to impose, and he shall thereupon moreover direct the recording and noting of such payment or satisfaction. 11. Writs and other proceedings may be signed by professional firms. When there is no firm, the Christian name of the attorney shall be added; but the usual abbreviations and initials of all Chris- tian names shall be sufficient. 12. No attorney or other officer of court shall be taken as bail in any suit or action depending or undetermined therein, or as security on any appeal or other proceeding. And for a violation of this rule, the attorney or officer in court so offending shall be punished as for a contempt, and the party shall be compelled to give other bail or security. Bail. 13. In any case where a defendant, who has given bail, and has final judgment obtained against him, is confined in any jail in this state, other than that of the county from whence the first process issued, the capias ad satisfaciendum against such defendant shall be considered as executed so far as to release the bail, when placed in the hands of the sheriff of the county where the said defendant is confined; and when the plaintiff or his attorney is notified of such confinement, and neglects to charge him with the said capias ad satisfaciendum, within a reasonable time, the same shall be con- sidered as executed, so far as to release the bail, and the bail, on motion and proof thereof, shall be discharged. Certiorari. 14. No certiorari will be sanctioned unless the alleged error he distinctly set forth in the petition; and no other errors shall be in- sisted upon, at the hearing, than are stated in the petition. 15. All writs of certiorari, shall, after having been docketed by the clerk, be delivered to the magistrate whose proceedings are the subject of complaint; and written notice shall be given to the oppo- site party in interest, at least ten days before the hearing of the cause; unless the certiorari shall be applied for and sanctioned within twenty days after the decision complained of. Claims. 16. In all cases of claims, as the burden of proof rests with the plaintiff in execution, he is entitled to the conclusion, but if the claim- ant introduces no evidence, he shall have the conclusion, and the plaintiff in execution shall in every case pay the jury fee: and in cases of illegality the plaintiff in execution shall, in like manner, pay the jury fee and conclude. Chap. 9.] OW COURT. 149 17. Tn cases of claims, when either the plaintiff in execution or the claimant dies, pending the claim, their representatives may be made parties, on motion, and on producing letters testamentary or of administration. IS. When a claim case is called in its order for trial, an issue must he tendered within five minutes, or the levy will be dismissed, and no exceptions will be allowed to the bond or affidavit in cases of claims or attachments after issue joined, except such as are taken in writing at or before the joining such issue. Clerks and Sheriffs. 19. When a civil or criminal process shall have been delivered to the sheriff, or his deputy, if no levy or service has been made in con- fortuity with the exigency thereof, he shall state specially, in his re- turn, the cause why such levy or service has not been made. If property which hath been levied on remains unsold, it shall be his duty to state the cause of its so remaining unsold, and to give a par- ticular description of the same. "JO. The sheriff shall make a return to the clerk of the court at the opening thereof, of the names of the coroner and constables of the county, four of which constables the sheriff shall notify to attend each term, until the whole shall have served in turn; and the sheriff shall l>e bound always to have at least four staves for the constables. 21. Every clerk and sheriff who cannot produce all the rules of court when required, shall be fined not exceeding ten dollars. 22. The clerks shall keep a separate book in which they shall register the names of all persons who may be fined by the court, the time when, the offence for which they are fined, the amount received and disbursed. 23. No clerk shall suffer any original paper of file to be taken from his office in vacation, without an order from the judge for that purpose. 21. The sheriff of each county shall keep a bench-warrant docket, on which he shall enter all bench-warrants delivered to him, and the time when executed, if executed, the time when they may be deliv- errd to him, and if not, the reason why they were not executed. 25. The sheriff shall in all cases put the purchaser of real property at sheriff's sale into possession of the premises, without further order or proceeding, when the defendant in execution was in possession of the same at the time of the levy or sale.—See statute, post, p. 3, c. 4. s. 59. Collateral Issues. 26. No appeal shall be allowed in collateral issues ordered by the court; but the court will, in its discretion, grant a new trial, upon such terms as shall appear just and reasonable. But where such collateral issue is tried in the inferior court, and said court is dissatis- fied wTith the verdict, they may permit an appeal to the superior court, at their discretion. 150 RULES [Part II. Commissions. 27. The following shall be the form of a commission to take testi. mony by interrogatories :— Georgia ) By his honour one of the judges of the County, j court for the county and state aforesaid. To esquires, greeting. Whereas, there is a certain matter of controversy now depending in the court for said county, between and whereas is a material witness in said suit, and can- not attend our said court in person without manifest inconvenience. Now know ye, That we, reposing especial trust and confidence in your prudence and fidelity, have appointed you, and you, or any two or more of you, are hereby"authorized and required to cause the said personally to come before you, and, after being duly sworn, to examine concerning the said suit, agreeable to the interrogatories hereunto annexed ; and the answers to the same being plainly and distinctly written, you are to send the same, closed up under your hands and seals, to our said court, to be held on the day in next, together with this writ. Witness, the honourable one of the judges of said court, this day of 28. Commissions may issue in blank in so far as relates to the names of the commissioners, but the names of the witnesses intended to be examined shall be distinctly specified in the notice served upon the adverse party, preparatory to issuing the commission.—See 23d section of the Judiciary Act of 1799—in Prince, the 22d section, 211th page. 29. The time to be allowed for the return of commissions from any part of the United States of North America, if less than one hundred miles distant from the place of trial, shall be one month; if a greater distance, and less than five hundred miles, two months; if at a greater distance, three months ; to any part of the West Indies, or South America, four months ; or to any part of Europe, eight months. 30. When a commission is returned, it shall remain with the clerk, for the benefit of either party, and may be opened by consent of both parties, such consent being written on the cover of the com- mission, or by an order of the judge, either in term time, or in vaca- tion, but such order, if applied for in vacation, must be upon five days' notice to the adverse party, or his attorney; and in cases of commis- sion returned not executed or directed according to rule, either party in the cause shall, upon five days' notice to the adverse party or his attorney, be permitted to return the commission and its con- tents to the commissioners, to be properly executed and directed. 31. Commissions may be sent and returned by mail: to entitle the party to open the commission, the postmaster, his deputy or assistant, must receipt on the back, "Received from A. B., one of the commissioners," the names of the commissioners must be writ- ten across the seals of the envelope, and the commission have such Chap. 9.J or COURT. 151 direction as will enable the court to know that it was intended for that court, and the usual abbreviations or initials of Christian names of the commissioners, witnesses, attorneys, clerks, magistrates, and postmasters, shall be sufficient. 32. When a commission issues to examine a witness, its not having been returned shall be no cause of continuance, unless the party seeking the continuance will make the same affidavit of the materiality of the testimony as in the case of an absent witness. Consent. 33. No consent between attorneys or parties will be enforced by the court unless it be in writing, and signed by the parties to the consent. 34. No consent to dispense with pleading will in any case be allowed, nor will any evidence be received of the contents of any written agreement between attorneys alleged to be lost, other than a sworn copy of said agreement. Continuance. 35. In all applications for continuances upon the ground of the absence of a witness, it must be shown to the court that the witness is absent, that he has been subpoenaed, that he resides in the county \\ here the case is pending, that his or her testimony is material, that such witness is not absent by the permission, directly or indi- rectly, of such applicant, that he or she expects and believes that he or she will be able to procure the testimony of such wit- ness at the next term of said court, and that such affidavit or application is made, not for delay, but to enable the party to pro- cure the testimony of such absent witness or witnesses, and must state the facts expected to be proved by such witness. 3G. When on an application for a continuance the party makes an affidavit of the facts which he expects to prove by the absent witness, the opposite party shall not be allowed to force a trial by an admission of the facts stated in such affidavit. Default. 37. Upon opening a judgment by default, the defendant shall plead instantcr to the merits of the action ; and no default shall be opened but upon payment of all costs which may have accrued, including two dollars of the attorney's fee: the entry of default upon the bench docket shall be sufficient evidence of the judgment. If the plaintiff allege himself to be surprised by the plea, the Cause shall be continued at the instance of the defendant. Dockets. 38. After the court is opened, and until it adjourns each day, the judges' dockets shall not be subject to the inspection of the bar, or their clients. 33. A criminal docket, a docket of original writs and processes, claims and special writs, as also a docket of appeals, shall be made 152 RULES [Part II. out by the clerk for the use of the court, copies of each of which shall be furnished the bar, and shall be delivered at the first opening of the term ; and all causes shall be called and tried in the order in which they are docketed, without any preference or delay, unless it shall appear to the court that it shall be injurious to press a cause to trial when regularly called. A different order in calling the docket may be pursued by the court, in its discretion, for the purpose of giving facility and expedition to its proceedings. The dockets shall be called but once; but if parties by consent, under permission of the court, continue their cases from day to day, said cases shall not stand for trial until all the other business of the court is finished, and then they may be tried in their order, at the discretion of the court. 40. The clerk of each court shall keep a motion docket, on which shall be entered all motions originating in the said court, or transferred for argument from other counties. A party applying to have a mo- tion docketed, shall certify in writing to the clerk the delivery of a brief of such motion to the judge, and shall pay to the clerk one dollar at the time of docketing the same. All motions shall be called and heard in the order in which they are docketed, nor shall any motion be heard until the same shall have been docketed in conformity to this rule. Exceptions. 41. All matters appearing on the face of the declaration or pro- cess, that would not be good in arrest of judgment, shall be taken advantage of at the first term, and will be immediately determined on by the court; unless where the court may entertain a doubt as to the law on the point: if so, the cause will be suspended, giving the defendant leave to plead his exceptions specially, together with any other matter which he intends to rely on in his defence. The exceptions thus pleaded shall be argued at a subsequent term, and if not sustained the plaintiff shall have his election to try then, or to continue without a showing. Executors and Administrators. 42. An executor or administrator shall not be permitted, in answer, to deny any deed, bond, bill, note, or other written instru- ment of his testator or intestate, being the foundation of the plain- tiff's action, without an oath or affirmation endorsed on such plea or answer, that he has reason to believe and does verily believe that such plea or answer is true. Illegality. 43. When an affidavit of illegality is made, on account of partial payment made on the execution, the defendant at the time of making such affidavit must pay up the amount he admits to be due, or the sheriff shall proceed to raise that amount and accept the affidavit for the balance. 44. No second affidavit of illegality shall be received by any sheriff or other officer. Chap. 9.] OF COURT. 153 Imparlance. 45. No imparlance shall be allowed on writs of scire facias, issued to enforce recognisances, either on the civil or criminal side of the court, to make executors or administrators parties to a cause pending therein, or for the revival of judgments, unless upon special cause shown to the court. Interrogatories. 46. When a cause is proceeding ex parte to a jury, interrogate- ries may be served by depositing a copy with the clerk, and posting a notice to that effect in his office, addressed to the party in default, ten days before suing out a commission. No exception to a written interrogatory on the ground that it is a leading question shall pre- vail, unless it be filed, with the interrogatories, before the issuing of the commission. 47. All objections to the execution and returns of interrogatories on appeal trials, the form of the commission, or service of notice, must be made by the party seeking to avail himself of them, before the cause has been submitted to the jury, or they will not be heard by the court: provided that the said interrogatories have been twenty- four hours in the clerk's office; and if they have remained in the possession of the party intending to use them, they shall be communi- cated to the adverse party before the cause is called for trial. Justices of the Peace. 48. The justices of the peace shall return all examinations and recognisances by them taken, or other papers that may be neces- sary to be acted upon by the superior courts of their respective counties, on or before the first day of the term of each court, except in the counties of Richmond and Chatham, where they shall make said return ten days before said courts, if taken that length of time before the sitting of the court. Lost Papers. 49. Upon the loss of any original declaration, plea, bill of indict- ment,~or other office papers, a copy of the same shall be established instant or. 50. Whenever a party wishes to introduce the copy of a deed or other instrument, between the parties litigant in evidence, the oath of the party stating his belief of the loss or destruction of the original, and that it is not in his possession, power, or custody, shall be a suf- ficient foundation for the introduction of such secondary evidence. 51. Whenever a party wishes to introduce the copy of a grant in evidence, the oath of the party j stating that the original is not in his power or possession, and that he knows not where it is, shall be sufficient foundation for the introduction of such copy. 52. When any person shall seek to establish lost papers under the 6th section of the judiciary act of 1799, he shall present a petition to the superior court, together with a copy in substance, of the paper lost, as nearly as he can recollect; which copy shall be sworn to by v 154 RULES [Part II. the party, or proved by other evidence ; whereupon a rule nisi may be obtained, calling upon the opposite party to show cause (if any he have) why the copy should not be established in lieu of the original so lost, which rule shall be personally served on the party, if to be found within the state, and if he cannot be found, then the said rule nisi shall be published in some public gazette in the state for the space of three months. Motions. 53. All grounds of motion for nonsuit, in arrest of judgment, and for continuance, all objections to testimony, and all exceptions to declarations, must be urged and insisted upon at once. And after a decision upon one or more grounds, no others afterward urged will be heard by the court. 54. All motions for amendment of the declaration shall be made at the first term, or, after the case is continued, at any subsequent term; and all motions for amendment of the answer shall likewise be made after the continuance of the case ; and a copy of the amend- ment in either case shall be served on the opposite party. No declaration or answer shall be amended after the case has gone to the jury; and all exceptions to the declaration, or answer to causes pending upon appeal, shall be taken and urged before the cause has been submitted to the jury. 55. On all rules to show cause, the party called on shall begin and end his cause; and on all special matters, springing out of a cause at issue, the actor or party submitting a point to the court shall in like manner begin and close ; and in all cases arising ex-delicto, if the defendant pleads justification and takes upon himself the burden of proof, he shall have the like privilege. 56. Every motion for any rule or order shall be submitted to the court in writing by the counsel who makes it, and if granted by the court, shall be delivered to the clerk. Notice. 57. No notices under the 6th section of the judiciary act of 1799, hereafter to be served, shall be available, unless the party for whose benefit they shall be served, or his agent, shall previously have made affidavit, (or his attorney stated in his place,) that the deponent or attorney has reason to believe the books or papers, required to be produced, are or have been in existence, that he believes they are within the possession, power, or .control of the person notified, and that they are material to the issue, (which affidavit shall be filed in office before the notice shall be available,) nor unless the court shall be of opinion that the books or papers sought to be obtained are ma- terial to the issue. And it shall be deemed a sufficient compliance with the notice, (whether served heretofore or hereafter,) if the party notified, being a resident of any other county of the state" than that wherein the case is pending, shall make an affidavit in writing before some judicial officer of the state, that the books or papers required and not produced, are not, nor have been in his possession,- powerf Chap. 9.] or COURT. 155 or control since the service of such notice. And if the person noti- tied he or reside without the state at the time of receiving such no- tiee, an affidavit to the foregoing effect, taken before some judge of the superior or county court of the state or kingdom in which he inav be, shall be deemed sufficient. 5S. In actions of assumpsit for the recovery of unliquidated de- mands, a bill of particulars shall be annexed to the copy served on the defendant; and in every case where the plea of set-off shall be filed, a copy of the set-off shall be filed at the time of filing the answer; and when the bill of particulars is not annexed to the dec- laration, the plaintiff shall lose a term ; and if service of said bill of particulars is not effected upon the defendant by the succeeding term, a nonsuit shall be awarded. 59. When a merchant or tradesman, being party, to a suit in any of the courts of this state, shall be notified to produce his books of accounts, or any of them, to be used as testimony on the trial, if the party so notified shall transmit to the court in which the case is pending a transcript from his books of all his accounts and dealings with the opposite party, together with an affidavit (taken pursuant to the fifty-ninth common law rule of court) that the same is a fair and perfect transcript as aforesaid, and that he cannot produce the book or books required without suffering a material injury in his trade, this shall be deemed a compliance with the notice: Provided, if the adverse party will swear that he verily believes that the books contain entries material to him which do not appear in the transcript, the court will grant him a commission to be directed to certain per- sons named by the parties, and approved by the court, to cause the adverse party to produce the book or books required, (he being first sworn that the book or books produced is or are all that he has that answer to the description in the notice,) and to examine said books, and to transmit to the court a fair statement of the accounts between the parties, under their hands, sealed and transmitted, as on other commissions, which statement, when received, shall be deemed a sufficient compliance with the notice. 00. All notices required to be given to any officer of the court, must be in writing. New Trials. Gl. A motion for a new trial shall not operate as a supercedeas, unless an order to that effect be entered on the minutes ; and in every application for a new trial, a brief of the testimony in the cause shall be filed by the party applying for such new trial, under the re- vision and approval of the court. Prochein Ami. 02. No prochein ami shall be permitted to institute any personal action, in the name and behalf of an infant, until such prochein ami shall have entered into sufficient bond to the governor of the state, for the use of the infant and his representatives, conditioned well and faithfully to account of and concerning his said trust, which bond 156 IUJJL.ES [Part II. may be sued by order of the court in the name of the governor, and for the use of such infant; and such bond shall be filed in the office of the clerk of the pourt in which the suit may be commenced. Recognisances. 63. All recognisances taken by the clerk for the appearance of either parties or witnesses, shall be written in a book for that purpose, separate and distinct from the minutes, to which he shall affix an alphabetical index. Scire Facias, 64. Writs of scire facias, issued to revive judgments, shall be re- turnable to the next superior court of the county where the defend- ant or defendants reside, under the following regulations, viz.:—The party suing out such writs shall procure a full exemplification of the record of the judgment, which shall be sent to the clerk of the sa- perior court of the county where the scire facias is made returnable, and filed with the same, whereupon judgment may be revived on such exemplification, in like manner as if the original judgment had been recovered in the county where the scire facias is made re- turnable. 65. A suggestion of the death of either party, for the purpose of enabling the survivor, or the representatives of such deceased party to issue scire facias to revive, may be made either in term time or in vacation; in either case, the order for issuing the scire facias shall be of course, and be granted by the clerk ; and such suggestion, and the order thereon, shall be filed among the proceedings in the pause, . Signing Judgments. 66. In all and every case when a verdict has been obtained at common law, and an appeal entered without judgment, signed upon the said verdict, judgment shall not afterward be signed further back than the time of disposing said appeal. Subpoena. 67. Subpoenas duces tecum may issue against third persons with- out order, at any time, upon application to the clerk. Surveys, 68. County surveyors are required to deliver copies of resurveys, by them made, to each of the parties concerned, upon their applica- tion, and at their own proper costs, within ten days after such appli- cation is made ; and the surveyor executing a survey shall be bound to attend court to prove the same, and shall be allowed the per diem pay of a witness attending upon subpcena. 69. Surveys of lands in any quantity of two hundred acres, or less, shall be laid down by a scale of ten chains to the inch; and over that quantity, by a scale of twenty chains to an inch. 70. No survey made under the rule of court shall be received in Chap. 9.] OP COURT. 157 evidence, unless it appears that at least ten days' notice of the time of commencing such survey was given to the opposite party by the one who offers it in evidence. 71. Every surveyor shall represent on his plat, nearly as he can, the different enclosures of the parties, and the extent or boundaries within which each party may have exercised acts of ownership. 72. After a cause has gone to the jury, and any evidence been heard in it, neither party shall be allowed to make any objection to a rule of survey made in the case, or the manner in which it may have been obtained, or the survey executed. 73. Either party, in actions of ejectment, shall be entitled, as matter of right, to a rule of survey, upon application to the cl jrk in vacation. Witnesses. 74. Witnesses shall first be examined by the party introducing them, then cross-examined by the adverse party : further examina- tion shall not be had, but by leave of the court first obtained, and then only upon the declaration of the attorney or witness, that a material fact has not been stated, to which all further inquiries shall be directed ; and in all cases in which more than one attorney is retained on either side, the examination and cross-examination shall be conducted by one of the counsel only, and at the opening of the case, both parties shall state to the court, to which attorney the ex- amination and cross-examination of witnesses is confined. RULES IN EQUITY 1. When a bill has been sanctioned and filed, and the usual pro- cess taken out and served or advertised according to the rules of court, and no answer shall be filed within the time allowed, if the defendant or defendants still remain in contempt at the next term thereafter, so as to entitle the complainant to have his bill taken pro cunfesso, the order shall be made by the court on application of the complainant; but such order shall only operate as an interlocutory decree, which shall entitle the complainant to have his cause sub- mitled ex parte to a jury ; provided always, that if the complainant or complainants shall swear or affirm that the answer of the defend- ant or defendants to the whole or part of the charges contained in the said bill is absolutely necessary, and that without such answer he, she, or they cannot support the truth of his, her, or their alle- gations, the court may permit such complainant or complainants to make a special oath or affirmation (as the case ma}7 be) of what he, she, or they know or believe the said defendant or defendants could or ought to answer, and such oath or affirmation may be given to the jury, together with the bill and other proof. 2. When a defendant or defendants reside out of the county in which a bill originates, and is sanctioned, which fact must be verified 158 RULES [Part II. by affidavit, the court, or judge at chambers, shall pass such order for appearance and answer as the distance of the defendant's resi- dence shall warrant, service or publication of which order, according to the exigency thereof, shall be deemed a sufficient service to com- pel an appearance; and subsequent proceedings shall be the same as if the defendant or defendants had been served with process by the sheriff of the county where the subpoena is made returnable. And if it shall appear by affidavit that a defendant is absent from this state, or cannot be found therein, service may be effected by publica- tion in a public newspaper upon the order of the court, requiring him to appear and answer the complainant's bill in such time as the court may direct. 3. A plea or demurrer, in part or to the whole of a bill, shall be filed at the return term, and shall be argued during the term, or upon motion and cause shown at such other time as the court may direct. The court will, however, in its discretion, upon sufficient cause shown, grant further time for filing such plea or demurrer, and such order shall express the time within which the same shall be filed, and the further time thereafter within which it shall be argued or be con- sidered as dismissed. And notice in writing of the filing of such plea or demurrer, shall be given to the adverse party or his counsel at the time of filing thereof. The defendant or defendants in any bill in equity may demur, plead, and answer at the same time, at the first term ; the demurrer, plea, and answer may be separately dis- posed of in their order, but the filing of the plea or answer shall in no case operate to overrule the demurrer. 4. All answers shall be filed within four months after the adjourn- ment of the court to which the subpoena is returnable, unless further time be granted. Exceptions to answers must be filed before the hour for jury business on the second day of the term thereafter, or said answers will be deemed sufficient; and if such exceptions shall be sustained by the court, the defendant shall perfect his answer within such further time as the court may order. But if said amended answer be defective, the defendant may be punished as for a con- tempt, and shall pay all costs that have accrued up to the time of filing such defective answer. Nothing in this rule shall be construed to prevent the respondent from filing his answer at any time after the filing a bill for injunction against him, and moving the judge at chambers, who granted the bill for the dissolution of the injunction, if the equity of the bill shall be sworn off by the answer. But in such cases, a rule nisi, stating the grounds of the application, and fixing the time and place of hearing the motion, shall be served upon the com- plainant at least ten days before the hearing of any such motion ; and the judge shall have power to order such amendments as are usually made in open court, and to hear and determine exceptions to answers. 5. A general replication to the answer shall be filed, and what is admitted in the answer shall remain admitted, notwithstanding such general replication. No special replication shall be received, but the complainant may, by his replication, controvert any part of the Chap. 9.] OF COURT. 159 farts stated in the defendant's answer, if he will admit the rest to be true; and such replication shall be confined to the particular matter controverted, and the defendant shall only be obliged to produce proof of such controverted matter. In either case, the cause shall be at issue after replication filed without rejoinder. fi. In trials in equity, the jury shall be taken from the panel of the grand inquest, in the manner prescribed by law for the selection of special jurors. 7. When a bill praying an injunction is presented to the judge for 1 is sanction, there shall be annexed to it the clerk's certificate of payment of costs, and security being given as required by law ; and on application to the judge, additional security may be ordered if circumstances require it. All injunctions shall be granted until fur- ther order had thereon. S. That an injunction shall not issue to stay proceedings at law, in any action in which a verdict shall have been given for money, unless a sum of money equal to the amount which the party applying for the injunction acknowledges to be due, is deposited with the clerk of the court, to be paid to the adverse party ; and a certificate of such payment shall accompany the bill. 9. When either party in a suit at. law shall be desirous of obtain- ing the interposition of the court, in the exercise of its equitable jurisdiction, in the prosecution or defence of said suit, the applica- tion therefor shall be by bill, which may be sanctioned by the judge, upon such terms as shall seem just and reasonable. 10. Commissions shall be issued, returned, and published, and notice of interrogatories given in like manner as in cases of common law ; and the like rules shall be observed on application for con- tinuanees. 11. The oath or affirmation of a defendant, to his or her answer, shall be in the following form :—" You, A. B., do swear, or solemnly, sincerely, and truly declare and affirm, (as the case may be,) that what is contained in your answer, as far as concerns your own act and deed, is true, of your own knowledge ; arid that what relates to the act or deed of any other persons, you believe to be true." 1*2. Bills may be revived by petition to the judge at chambers, or at a term time; and upon the presentment of a petition for that purpose, an order for the revival of the bill nisi causa, on the first day of the term next thereafter, shall be passed : a copy of petition and order shall be served by the sheriff* on the defendant, at least twenty days before the meeting of the said court. No bill or sub- puma will be required. 13. When a case in equity shall be tried by a jury, who shall render a verdict for a specific sum, a decree shall be entered for such a sum, and such execution may be issued thereon as if the cause had been decided at eommon law. Where the finding of a jury is special, and requires the payment of money, and some duty to be perform- ed, the sum so found may be recovered in the manner herein before provided ; and such duty shall be enforced by the court by attach- ment for contempt, or otherwise, according to the course of proceed- ings in equity. 160 RULES OF COURT. [Part IL 14. The clerk shall keep a docket for equity cases, distinct and separate from the causes at common law, in which shall be registered the names of the parties, and titles of all bills, at the time of filing the same, with notices of the pleadings and orders in the cause up to the final decree. 15. In all cases where the parties go to trial upon the bill and answer alone, the complainant's solicitor shall have the conclusion. .16. After appearance by the party, defendant to any bill in equity, by any solicitor of this court, the service of any subpcena to make better answer, or any rule or order of the court on such defendant or solicitor, shall be sufficient. Service upon complainant, or his soli, citor, shall in like manner be deemed sufficient service. 17. Copies of all deeds, writings, and other exhibits, shall be filed with the bill or answer, and no other exhibits shall be admitted, unless by order of the court, for some special and good cause shown. The production of the original, if not admitted by the answer, may be required on the hearing: and upon application to the court, or to the judge in vacation, and causes shown, the original of any exhibit will be ordered to be deposited in the clerk's office, for the inspection of the adverse party. IS. Applications for writs of ne exeat other than such as are pro- vided for by the act of December 6th, 1813, shall be upon bill filed, and sworn to or affirmed by complainant, or his attorney in fact; and such oath or affirmation shall particularly state the amount of the debt claimed, and that the sum to be mentioned is then due, and that there is reason to apprehend the loss of the whole, or a part of said sum, if the defendant should depart without the jurisdiction of the court. The sheriff shall discharge the defendant from custody Under such writ, upon his giving bond, with two good securities, (who shall be liable to be excepted to, in like manner as in case of bail at common law,) conditioned for the payment to the complainant, his executors, administrators, of such sum as shall be decreed, with interest and costs, and further in all respects to do, conform to, and perform the decree of the court in the premises. 19. When auditors have made up their report, the same shall be returned into the clerk's office without delay, and shall remain open to the inspection of both parties. 20. A docket of decrees, and also a docket of executions, or other process for the enforcement of decrees, shall be kept by the clerk, in cases in equity, in like manner as the dockets of judgments and executions at law ; and the acknowledgments of satisfaction on de- crees in equity may be enforced in the same manner, and under the like penalties, as judgments at law. 21. The rule at common law which requires a prochein ami of an infant to give bond to account, &c. shall also be observed in equity. PART III. DUTIES OF VARIOUS OFFICERS KNOWN TO THE LAWS OF GEORGIA. CHAPTER I. JUSTICES OF TIIE PEACE. 1. Justices of the peace are appointed within certain limits for the conservation of the peace; and for the execution of divers things comprehended within their commission, and within divers statutes committed to their charge.—Dalt. c. 2. 2. The general duty of the conservators of the peace, by the com- mon law, is, to employ their own, and to command the help of others, to arrest and pacify all such, who, in their presence, and within their jurisdiction and limits, by word or deed, shall go about to break the peace.—Dalt. c. 1. 0. If a conservator of the peace, being required to see the peace Jo pt, shall be negligent therein, he may be indicted and fined.—Dalt. c. 1. 1. And if the conservators of the peace have committed or bound over any offenders, they are then to send to, or be present at the next superior court, there to object against them.—Dalt. c. 1. fi. There shall be two justices of the peace in each captain's dis- trict in the several counties of this state, who shall be elected on the first Saturday in January, 1S21, and on the first Saturday in Janu- arv every fourth year thereafter, by the citizens of the district to which they respectively belong, entitled to vote for members of the General Assembly ; which elections shall be superintended by three freeholders of the district, whose duty it shall be to take the follow- ing oath, to be administered by the captain or commanding officer of said district, or any magistrate of the county, to wit: " 1, A. B., do solemnly swear that I will, to the best of my abilities, superintend the election of justices of the peace for this district: So help me God." And said freeholders shall transmit a return of said election, within twenty days, to his excellency the governor, who is hereby author- ized to commission the person or persons so elected accordingly; and the said justices of the peace shall hold their appointments dur- ing the term of four years, and until their successors are elected and qualitied, unless they shall be removed by conviction on indictment in the superior court, for mal-practice in office, or for any felonious or infamous crime, or by the governor on the address of two-thirds x 162 JUSTICES OP [Part III, of each branch of the General Assembly ; and when any vacancy or vacancies shall happen by death, resignation, or otherwise, of any justice or justices of the peace, it shall be the duty of one of the justices of the peace, and two freeholders—which said freeholders, previous to holding said election shall take the oath above prescribed— to advertise, in three of the most public places in the district where such vacancy or vacancies may happen, the time of holding an elec- tion for the purpose of filling such vacancy or vacancies, and give at least fifteen days' notice of the time and place when such election shall be held ; and it shall be the duty of said justice and freeholders to superintend said election, and certify the same under their hands to his excellency the governor, who shall, within ten days after receiving the same, commission the person or persons having the highest number of votes: Provided the election is not contested. All elections for justices of the peace shall be holden at the usual place of holding the justices courts in the respective company districts. Where any person or persons shall be elected to fill the vacancy of any justice of the peace, the persons so elected and commissioned shall continue in office only for the time for which their predecessors were elected.—Prin, Dig. 123, 124. 6. The following is the form of the oath usually* administered to ^ a justice of the peace. "I, A. 2?., do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all and singular the duties incumbent upon me as a Justice of the Peace for the county of Baldwin agreeajaly to the constitution and laws of this state, and the constitution of the United States, according to the best of my abilities and understanding—that I will bear true faith and allegiance to the State of Georgia, and to the utmost of my power and ability, observe, conform to, support, and defend the con- stitution thereof, w ithout any reservation or equivocation whatsoever, and the constitution of the United States. " And 1 do further swear that I am not a holder of any public moneys, but have paid into the treasury all sums for which 1 have been accountable and liable: So help me God." Which oath, when taken and subscribed before any two or more justices of the inferior court, to whom the dedimus for their qualification is gener- ally directed, is to be transmitted to the executive department, there to be- come a record. 7. The ancient form of the commission of the peace contains the outlines of the duties of a justice, and it ought still to be observed, for it directs him in many particulars essential to the preservation of the public peace, and the due execution of his office.—See Clayton's Jus- tice, 232, 236. * It is worthy of remark that the law nowhere prescribes the form of an oath for either branch of the judiciary of our state. The above is substantially the form pre- scribed by the first section of the judiciary act of 1797 for the judges of the superior courts, and which was expressly repealed by the sixty-first section of the judiciary act of 1799.—See Prin. Dig. 219. Chap. 1.] THE PEACE. 163 The form of the Commission of the Pence to the Justices. State of ) By A. B., governor and commander-in-chief in and over (h'orjia. the state aforesaid. 'lo R. ./.Justice of the peace for the two hundred and sixteenth com- pany district of Georgia militia, in the county of Baldwin, and state aforesaid:— Know ye that, by virtue of the power and authority in me vested, I have assigned you to keep, or cause to be kept, all the laws of force in the said state, for the good of the peace, and conservation of the same, and for the quiet rule and government of the people in the skid state, and all and every the articles thereof, according to the force, form, and effect of the said laws: and to cause to come before you all those persons who shall threaten any of the people in their persons, or to burn their houses, to find security for the peace, and their good behaviour towards the people ; and if they shall refuse to find such security, then to cause them to be kept safe in prison until they find such security : and to inquire in your district aforesaid of all manner of felonies, trespasses,* and all and singular other mis- deeds and offences whatsoever, committed by negroes, mulattoes, or mestizoes, of which justices of the peace may or ought lawfully to inquire or adjudge: and likewise in your district to examine, hear, try, judge, and determine all such civil causes of which, by the con- stitution of said state, you have jurisdiction, agreeably to the act of the General Assembly in that case made and provided: and also to inquire of all manner of trespasses and extortions whatsoever, and all and singular other misdeeds and offences whatsoever of which jus- tices of the peace may or ought lawfully to inquire, by whomsoever or howsoever done or perpetrated, or which hereafter shall be done, or attempted to be done, in the district aforesaid: and all of those who, in the said district, have either gone or ridden, or who shall hereafter presume to go or ride, in company, to lie in wait to maim or kill any of the people, and of all and singular the articles, circum- stances, and all other things whatsoever, by whomsoever, or howso- ever, done or perpetrated in the district aforesaid, or which shall hereafter be done, or attempted to be done, in anywise concerning the premises, or any of them : and I require you, that you in manner and form aforesaid diligently attend to the keeping of the peace and laws aforesaid; and that you make inquiry and determine all and singular the premises, and perform and fulfil the same, doing therein what to justice appertained, according to the said laws. 8. Justice for the district off]—Here are two*considerations: one is, that the justice cannot act when he is out of the district, only in such cases as by statute he is particularly authorized; and the other is, that when he is in the district, he can act for that district only, except in the cases permitted by statute. Both these are, however, to be under- stood with some limitation. * It is proper here to remark, once for all, that the jurisdiction conferred by this ancient commission very far exceeds that conferred on justices of the peace by our statutes.—See post, c. 2, e. 41. 164 JUSTICES OF [Part III. As to the former case, it is said that the justice can have no coercive power out of the district; yet it is said that recognisances and informations voluntarily taken before him in any place are good.—2 Hawk. 37. And Lord Hate says, that a justice of the peace may do a ministerial act out of his county, and of course out of his district, as examining a party robbed, whether he knows the felons, &c.; but that he cannot do a com- pulsory act, as committing a person for not giving recognisance.—2 H. H. 50, 51. 9. Assigned you.~\—By this assignment'the justice has as well all the ancient power, touching the peace, which the conservators of the peace had at common law, as also that whole authority which the statutes have since added thereto.—-Dalt. c. 5. Whatsoever any one justice alone may do, the same also may lawfully be done by any two or more justices; and justices are frequently called from each other's districts to aid in matters relating to the peace, and the exam- jnation of offences committed : but where the law giveth authority to two, there one alone cannot execute it.—Dalt. c. 6. And yet, where a statute appointeth a thing to be done by two justices or more, if the offence be any misdemeanor, or matter against the peace, there, upon complaint made of the offence to any of those justices, it seemeth that one of them may grant out his warrant to apprehend the offender, and to bring him before the same justice and the other justice, at some convenient place, and then both may hear and determine the same.—Dalt. c. 6. But it seemeth that when a thing is appointed by any statute to be done by or before one person certain, such thing cannot be done by or before any other; and by such express designation of one, all others are excluded, and their proceedings therein are coram, nonjudice, or illegal.—Dalt. c. 6. 10. All the laws.]—It seems certain that justices may execute all statutes whatsoever, made for the better keeping of the peace. But if no power be expressly given in any statute to any one justice alone, he cannot proceed upon it.—Dalt. c. 5. But besides the statutes relating to the peace, there are also many other Statutes, which are not specified in the commission, and yet are committed to the charge and care of the justices of the peace by the express words of such statutes; and all such statutes are to them a sufficient warrant and com- mission of themselves, although they be not recited in the commission, and are to be executed by them according as the statutes themselves do sever- .ally prescribe and set down.—Dalt. c. 5. 11. Threaten any of the people in their per sons. ]—Lambard and Dalton both think, it seems clear, that if a man is in fear that another will hurt his servant, or cattle or other goods, the surety of the peace shall not be granted; but Mr. Dalton is of the opinion, that if one threatens to hurt a man's icife or child, he may crave the peace.— Lamb. 82; Dalt. c. 116. It should seem, from the many causes which, from time to time, have been adjudged sufficient to bind to the good behaviour, that this expression, shall threaten, is not to be understood of words only, but of threatening actions like- wise, or any thing whereby a man has just cause to apprehend the burning of his houses, or some bodily hurt to be done to him. 12. To find security.—This is done by recognisance, by a reason- able intendment of law, more than by any special law in that case provided.—Crom. 125. Chap. 1.] TIIE PEACE. 165 Lord Hale, speaking of the statute of the 34 Ed. Ill, c. I. (on which, Mr. Crompton says, the power of justices to bind to the good behaviour is grounded) says, that this power of binding, though expressed generally, and without any time limited, yet is not intended to be perpetual; but in nature of bail, viz. to appear on such a day at the sessions, and in the mean time to be of good behaviour.—2 H. H. 136. 13. Regularly, justices of the peace ought not to execute their office in their own case, but cause the offenders to be convened, or carried before some other justice, or desire the aid of some other justice, being present.—Dalt. c. 173. By Holt, Ch. J. M. 10 W. the mayor of Hereford was laid by the heels for sitting in judgment in a cause where he himself was lessor of the plaintiff in ejectment, though he by the charter was sole judge of the court.—1 Salk. 396. Yet in some cases if the justice shall act in his own cause, it seemeth to be justifiable; as when a justice shall be assaulted, or (in doing his office especially) shall be abused to his face, and no other justice present with him, there it seems he may commit such offender until he shall find sureties for the peace, or good behaviour, as the case shall require ; but if any other justice be present, it were fitting to desire his aid.—Dalt. c. 173 ; Str. 420, 1. 14. If a justice exceed his authority in granting a warrant, yet the officer must execute it, and is indemnified for so doing ; but if it be a case wherein he hath no jurisdiction or a matter whereof he hath no cog nisance, the officer ought not to execute such warrant: so that the offi- cer is bound to take notice of the authority and jurisdiction of the justice.—Cro. Car. 394 ; 10 Co. 76. 15. If a justice perceives that he has been deceived or surprised into any measure, or that he has acted therein illegally or irregularly, he may issue a supersedeas, and prevent any further proceeding thereon. 16. 1 f a justice of the peace refuses to proceed in a cause depending before him, he may be compelled by mandamus from the superior court to proceed therein ; or if he will not proceed, or evade pro- ceeding to execute any act of assembly, inflicting a penalty which he has cognisance of, especially if such conduct be out of favour to the of- fender, he may be indicted, as well as punished, for a contempt of the superior court. 17. The justices ought to make a record in all cases of conviction before them, for penalties, where they are empowered to hear and de- termine out of court, and should write down under their hands all matters and proofs ; though in many cases they are to keep the record themselves, for at some time or other it may be wanted, and sent for by the superior court, or the justice himself may have occasion to pro- duee it, if sued for what he has done in relation thereto. 18. A justice of the peace may issue his warrant for apprehending persons charged with any crimes or misdemeanors whatever, that are indictable in the superior court, and, if necessary, bind over the offen- ders to that court, and the witnesses; and also may take the exami- nation of the offender in writing, and send the same to court.—See ante, p. 2, c. 4. Examination. 19. A justice of the peace is strongly protected by the law in the just execution of his office ; and a man is indictable for saying to a justice, in the actual execution of his office, that he is a rogue, liar, 166 JUSTICES OP [Part III. villain, or the like opprobrious words ; or the justice may commit him; Str. 61?; L. Raym. 1369 ; Str. 420, 1157; and he maybe bound to his good behaviour, if he abuses a justice before his face in relation to his office. 20. A justice of the peace ought not to be proceeded against harshly, nor will he be in any case, even though he acts illegally,—if he has acted honestly and candidly, without oppression, malice, revenge, or any bad view or ill intention whatsoever. But if he acts ille- gaily for any such purpose, he is then indictable, and his conduct will, and ought to be animadverted on with severity. 21. The remark of Judge Blackstone in reference to the duties and responsibilities of a justice of the peace in England, is peculiarly appli. cable to the existing circumstances of these officers in our country. After speaking of the duties which, from time to time, had been heaped upon them by statutes, imposing such an infinite variety of business that "few cared to undertake, and fewer understood the officehe adds, " that the country is greatly obliged to any worthy magistrate that, without sinister views of his own, will engage in the troublesome ser- . . O rp vice. And, therefore, if a well-meaning justice makes any undesigned slip in his practice, great lenity and indulgence are shown to him in the courts of law, and there are many statutes made to protect him in the upright discharge of his office ; which, among other privileges, prohibit such justices from being sued for any oversights without no- tice beforehand; and stop all suits begun, on tender made of suffi- cient amends."—1 Black. 354. This, however, cannot be extended to any justice whose conduct maybe found to have been influenced by any improper prejudices whatsoever; see ante, p. 1, c. 4, s. 50, where the illegal issue of a warrant or other process, accompanied by evidences of malice, subjects the justice to fine and impris- onment, and removal from office ; and see also p. 1, c. 8, s. 37, where any tyrannical or oppressive conduct on the part of the magistrate is made an indictable offence, and punishable in like manner. 22. Where a criminal information is applied for against a magistrate, the question for the court is, not whether the act done be found on investigation to be strictly right or not, but whether it proceeded from an unjust, oppressive, or corrupt motion, (among which fear and favour are generally included,) or from mistake or error only. In the latter case the court will not grant the rule. Also, in an action against a magistrate for a malicious conviction, it is not sufficient for the plaintiff to show that he was innocent of the offence of which he was convicted, but he must also prove, from what passed before the magistrate, that there was a want of probable cause for the magistrate to convict.—Chitty's note on 1 Black- 354. 23. A record or memorial made by a justice of the peace of things -done before him judicially in the execution of his office, shall be of «uch credit that it shall not be gainsaid : one man may affirm a thing, and another man may deny it; but if a record once say the word, no man shall be received to aver or speak against it; for if men should be admitted to deny the same, there would never be an end of controversies. And therefore, to avoid all contentions, while one Chap. 1.] the peace. 167 saith one thing and another saith another thing, the law reposeth itself wholly and solely in the report of the judge ; and hereof it cometh that he cannot make a substitute or deputy in his office, seeing that he may not put over the confidence that is put in him ; great cause therefore have the justices to take heed that they abuse not this credit.—Lamb. 63, 66. 24. A justice of the peace acts ministerially or judicially. Mitiis- terially, in preserving the peace, hearing charges against offenders, issuing summonses or warrants thereon, examining the informant and his witnesses, and taking their examinations, binding over the parties and witnesses to prosecute and give evidence, bailing the supposed offender, or committing him for trial, &c. Judicially, as when he convicts for an offence. His conviction, drawn up in due form, and unappealed against, is conclusive, and cannot be disputed in an ac- tion ; though if the commitment thereon was illegal, trespass lies.— Chitty's note on 1 Black. 354. But " no suit or action lies for a jadi- cial act.''—5 John. Rep. 296,297. 25. The power of a justice of the peace to convict an offender in a summary way, without a trial by jury, is in restraint of the common law, and nothing shall be presumed in favour of this branch of the of- fice of justice of the peace; but the intendment will be against it. For which reason, where this special power is given to a justice of the peace by statute, it must appear that he has strictly pursued it, otherwise the common law will break in upon him and level all his proceedings. So that where a trial by jury is dispensed with, he must nevertheless pro- ceed according to the course of the common law in trials by jury, and consider himself only as constituted in the place both of judge and jury. Therefore there must be an information or charge against a person; then he must be summoned, or have notice of such charge, and have an opportunity to make his defence ; and the evidence against him must be such as the common law approves of, unless the statute specially direct otherwise ; then, if the person be found guilty, there must be a conviction, judgment, and execution, all according to the course of the common law, directed and influenced by the special authority given by statute; and in the conclusion, there must be a record of the whole proceedings, wherein the justice must set forth the particular manner and circumstances, so that, if he should be called to account for the same by the superior court, it may appear that he has conformed to the law, and not exceeded the bounds pre- scribed to his jurisdiction.—1 Burns'Just. 504, 5. 26. Fees of Justices of the Peace. In Civil Cases. For a warrant or summons $0 31]- For each cause tried by them - - 3l£ For affidavit to obtain an attachment or hold to bail, and taking bond - -- -- -- - 62a For each execution, ca. sa., or attachment - - - - 31A For taking interrogatories, and certifying the same - - 1 25 168 justices' courts. [Part III, For drawing jury and making out venire - - - - $0 3U For each cause tried by said jury ----- 3^ For each subpoena for witnesses - - - - - ]5* For each affidavit where there is no cause pending - - 3li For every stray horse, mare, colt, filly, ass, or mule, brought before them, to be paid by the taker up - 934 For each head of neat cattle, sheep, goats, or hogs - - 72 For each head of neat cattle advertised - - - - 311 Their commissions on all estrays sold by them, six and a quarter per cent. In Criminal Cases. For affidavit to obtain a warrant' 311 For making out a warrant 3li For making out a commitment - - - - - - 311. For making out a recognisance, and returning the same to court 31{ For each subpoena for witnesses ----- 15s Note.—The justices of the peace are entitled to fees in many cases not mentioned in the foregoing- table; and which, being distinctly stated in the statutes requiring the services for which they are to be paid, will be easily re- ferred to. CHAPTER II. Justices' Courts. 1. The jurisdiction of the justices of the peace extends to all liqui- dated demands or accounts not exceeding thirty dollars :* their mode of process is by summonsf or warrant. But no justice of the inferior court, clerk, sheriff, or practising attorney, being a justice of the peace, shall try a cause or give any judgment in a civil case- Either party may appeal, on payment of cost and giving security for the eventual condemnation money, within three days after judgment; or the party cast may stay execution forty days after the first trial and tvyenty days after an appeal, on payment of costs and giving security within four days, and in both cases the security is liable for the debt and cost. The appeal is to be tried by a jury consisting of five per- sons, and their verdict is final, (if legal and regular.)—Prin. Dig, 244, 245. 2. When any bond, note, or account, which originally exceeded thirty dollars, has been reduced by payment to thirty dollars or under, and entered on said instrument, or where they have been reduced by giving new bonds or notes, the last as well as the former case are within the jurisdiction of a justice of the peace.—lb. 244. 3. Justices of the peace shall have power in all cases of debt or liquidated demands to give judgment for any sum not exceeding thirty dollars, exclusive of interest and cost.—Prin. Dig. 253. * The constitution formerly limited their civil jurisdiction to deb's mt exceeding thirty dollars, but by the amendment passed 1819 the constitutional limit is removed. «—See post, s. 3. t For ti.e fjrm of the summons-see p. 4, c. 3, s. 21. Chap. 2.] justices' courts. 169 4. No justice of the peace shall sustain or try any satisfaction in damages for any trespass on the person or property of another.— Prin. Dig. 219. 5. Where any suit shall be brought to the superior or inferior courts in this state, and the verdict of the jury shall be for a sum under thirty dollars, the defendant shall not be charged with more cost than would have necessarity accrued, provided said recovery had been before a justice of the peace, and the remainder of the court charges may be retained out of the sum so recovered ; and if the verdict of the jury be not of sufficient amount, the plaintiff shall be bound to pay the same : Provided, this act shall not extend to and govern cases where the demand set forth in the declaration shall be proven to exceed the sum of thirty dollars: Provided, nothing herein contained shall extend to any case sounding in damages.—Prin. Dig. 221. 6. The time of holding justices' courts is once a month, which they may appoint, as also the place, having regard to the convenient centre of the district; but no judgment can be rendered by them, only at the time and place mentioned in the summons.—lb. 245. 7. The summons is to be served by a legal constable of the district where the defendant resides, by giving him a copy in person, or leav- ing it at his usual and notorious place of abode ; which must be done ten days before trial, and an entry of service made on the summons. —Ib. 8. The first term shall be deemed and considered as the appearance term, when the case shall be docketed on what shall be called the appearance docket; and on the defendant failing to appear, judgment shall be entered by default, as in the superior court, and at the second term, unless there is sufficient showing, judgment shall be entered up: Provided, nevertheless, the party or parties shall be entitled to an appeal agreeable to the judiciary law now in force in this state.—lb. 253. 9. Ten days' residence in a county or district will be sufficient to give jurisdiction to a justice's court.*—Ib. 249. 10. It shall be the duty of each justice of the peace in this state to keep a fair and legible book of entry of all civil proceedings had before him for the recovery of debts, &c. 11. It shall be lawful for all and every justice of the peace in this state, on application of any non-resident of the county or state for any civil process, to require said non-resident to deposit the cost, or give sufficient security for the same.—Prin. Dig. 253. 12. Where there are joint obligors or promisers living in different districts or counties, the plaintiff may sue either of them in which- ever district or county he pleases, find may include the others in the suit, and obtain judgment against them, by having them served by a proper officer with a copy of the process, and the return made on the original of that fact to the court from which it is issued.— Ib. 245. 13. Where a security discharges an execution, the justice must make an entry to that effect in his docket book, and then let the * Itinerant persons may be arrested on a bail or criminal process in any district.— See post, c. 3, s. 9. y 170 justices' courts. [Part III. security have the control of the execution, to make his money out of the principal.—Prin. Dig. 249, 252. 14. Where suits are commenced in justices' courts on joint obliga- tions or promissory notes, if any of the joint parties shall make it appear that they are only securities to such instruments, judgment shall go against them as such, and if satisfied by such securities, they shall have control of the execution to make their money out of the principal; but the judgment must also have gone against the prim cipal.—Ib. 252. 15. No instrument for money shall be denied in a justice's court, but upon oath, in writing, of the party making such denial.—lb. 248. 16. In all cases in a justice's court, the best evidence the nature of the case will admit shall be required, nor shall any person prove his account by his own oath,* without first making oath in writing that he has no other evidence to establish the same that is in his power to procure.—Ib. 247.f 17. In any suit which may be instituted in~a justice's court within this state upon an open account, against any party who may have removed without the jurisdictional limits of the county in which such account was contracted, or who may reside without the county in which the account was contracted, the said account may be proven by a written affidavit before any officer authorized to administer an oath ; and when so proven, shall be received in evidence upon the trial of said suit, as though the same had been proven in open court: Provided, however, that if the defendant will make an affidavit in writing, denying the justice and fairness of the whole,- or any part of the said account, the said court shall not give judgment for so much* thereof as may be so traversed or controverted unless supported by other proof.—Daw. Comp. 221. 18. In all cases of mutual debts and sets off, the justice may give judgment to the defendant for any balance found to be due him. Cases may be continued three times by either party, on good cause shown on oath. Where property is claimed, upon which an execu- tion is levied, the officer must postpone the sale, and make return thereof to the next court thereafter; but the person claiming the property shall give bond J and security in double the amount thereof, * Most justices of the peace have fallen into a very erroneous practice in relation to a plaintiff or defendant proving his oum account. They generally admit the affidavit of the party, even when the defendant and plaintiff both reside in the same district, as sufficient evidence to prove the account, without any further evidence. The act (Prin. Dig. 247, s. 5,) allows the party to prove .his own account after he has made affidavit that he " has no other evidence whereby to establish it," that he can procure : that is, he is allowed to come in and be sworn as any other witness, after this affidavit is made, and is liable to be examined and cross-examined, as other witnesses are. And it this course should be refused by the justice, it is a good ground for certiorari. There is another act which allows the affidavit of the party to be read as evidence to prove his account, where the defendant has moved to another county, and this is the only case in which it can be done legally. •f By the act of 1826, it is provided, that where suits may be commenced in any of the courts of this state, on open accounts for money due the penitentiary, the cer- tificate of the principal bookkeeper, that such account is correctly copied from the original book of entries kept by him, being appended to such account, shall establish its validity, unless legally controverted by the defendant.—Daw. Comp. 290. t For the form of such bond, see post, s. 57. Chap. 2.] JUSTICES* COURTS. 171 payable to the plaintiff, conditioned to pay all costs and damages which he may sustain, in case the claim is frivolous, and intended for delay. The claim is to be tried by five jurors, to be drawn and em- pannelled in the same manner as appeals, and may be continued one term only, on good cause shown on oath.—Prin. Dig. 247. 11). And in all cases of executions from any justices' courts in this state, levied on property claimed by any person not a party to such execution, such person shall make oath that such property ievied on is his, her, or their right and property, or his, her, or their property as attorney, agent, guardian, executor, or administrator, (as the case may be,) to the best of his, her, or their knowledge and belief; and shall, moreover, give security in terms of the preceding section.— lb. 251. For the form of such oath, see post, s. 56. 20. Where persons are sued in one district and remove before judgment, the justice shall nevertheless proceed to give judgment; and in such case, as well as where they move after judgment, he shall issue an execution, which being backed by a justice of the dis- tiict or county to which the defendant has removed, may be levied by any lawful constable of said county.—Prin. Dig. 248, 249. 21. Judgment obtained in justices'courts are of equal dignity with any other judgment, and shall bind property from their date, as also the property of securities from the time of their entering as such.— lb. 250. For the form of such executions, see post, s. 55. 22. Justices may hold to bail for debts within their jurisdiction, under the same regulations as in other -courts.—lb. 247. For which, see p. 2, c. 4, (bail;) and for the form of the oath and bond, see s. 411, 02, of that chapter. 23. Justices may punish for contempt of their courts, during the sitting thereof, by fine and imprisonment: the one not exceeding two dollars, and the other not exceeding two days. The fine to be paid to the inferior court.—Prin. Dig. 253. 24. Justices may issue subpoenas* for witnesses resident within the county, which must be served five days before trial; and if they fail to attend, without good excuse, they may be fined as high as ten dollars, at the discretion of the justice, and be also liable by suit to the party injured by their default. Witnesses attending court out of their district,! shall be allowed seventy-five cents a day ; but cost can only be taxed for two witnesses to the same fact, and they must at- tend from term to term until legally discharged. All fines must be paid over to the inferior court for county purposes. If a witness resides out of the county, the justice upon application may issue a commission to take his testimony, which must be annexed to original interrogatories; a copy of which having been first served on the adverse party five days before issuing the commission. The corrf- mission is to be directed to two or more freeholders, one of them being a justice, to examine on oath the witness ; and the examination, * For the form of subpoena, see post, s. 53. t If they live within the district, the justices cannot tax any cost for attendance.— Prin. Dig. 173. 172 justices' courts. [Part III. when taken, must be sealed up and directed to the justice who issued the commission ; the person bearing it is to swear it has undergone no alteration since he received it from the commissioners: the testimony when thus returned may be read by either party.—Prin. Dig. 247, 248. For the forms, see post, s. 54. 25. The proceedings in the justices' courts shall be uniform through- out the state. 26. The method of drawing jurors for the trial of appeals, and all other cases in justices' courts in each district, shall be as follows The justice or justices residing in each captain's district, in conjunc- tion with the commanding officers of said district, shall once in every two years procure or make out a list of all persons liable to serve as jurors in the superior courts, who may be residents in their respective districts, and shall write the name of every person so liable on a separate piece of paper, which shall be deposited in a box in an apartment marked No. 1, and shall draw therefrom not less than five, nor more than seven of the names, so before deposited, from time to time, to try the causes so depending before them ; which names so drawn shall be entered in a book by the justice presiding at the drawing thereof, and shall be deposited in an apartment of said box, marked No. 2; and after all the names are drawn from No. 1, they shall commence drawing from No. 2; and so on alter- nately : Provided, that no justice shall presume to draw any jury but on a court day7, and in public, and by a person not interested in any suit to be tried by said jury; and any person so drawn and sum- moned by a constable five days before court, neglecting to appear, shall be fined by the justice or justices in a sum not exceeding three dollars, unless such juror shall show sufficient cause of excuse on oath at the next term ; and in all cases of deficiency of jurors, the constable, by the direction of the justices, shall file and complete such jury from the bystanders: Provided, there shall not be less than three of the original panel on such jury ; and they shall, for every verdict by them given in. be entitled to twenty-five cents, to be paid by the party in whose favour such verdict may be given, and to be taxed in the bill of costs.—Prin. Dig. 248. 27. The oath to be administered to the jury on the trial of appeals, also for the trial of the right of property, and on a traverse trial in justices' courts, shall be as follows :—" You shall well and truly try the cause now pending between A. B. plaintiff, and C. D. defendant, and a true verdict give according to equity, and the opinion you en- tertain of the evidence produced to you, to the best of your skill and knowledge, without favour or affection to either party, provided the case is not withdrawn: So help you God."—lb. 28. When a district is without justices, any justice in the adjoining district may take jurisdiction of cases in such vacant district. And in all cases where a justice is himself a party, they must be tried in the nearest justice's court to his residence.—lb. 249. 29. Justices of the peace shall be so far considered officers of the superior court as to be subject to be ruled under similar regulations as are customarily pursued in relation to any other officer of said Clmp. 2.] justices' courts. 173 court, when they shall refuse or neglect to pay over any moneys which they may have received or collected in their official capacity. —Paw. ('omp. '203. This provision is amended by the act 1822, which subjects the defaulter to the payment of 20 percent, damages. See post, c. 4, s. 44. 30. Upon complaint made on oath* by the person injured, his agent or attorney, to any judge of the superior, or justice of the inferior, court, or any justice of the peace, that any negro or negroes, or other personal chattel, have been taken, enticed, or carried away by fraud, violence, seduction, or other means, from the possession of such de- ponent, or that such negroes or other personal chattels, having been recently in the quiet, and legally, and peaceably acquired possession of such deponent, have absconded or disappeared without his or her consent, and, as he or she believes, have been harboured, received, or taken possession of by any person or persons, under some pretended claim or claims, and without lawful warrant or authority, and that the said deponent, or the person for whom he is agent or attorney bona fide, claims a title to or interest in the said negroes or other chattels, or the possession thereof, it shall be the duty of such judge or justice to issue a warrant,f as well for the apprehension of the party so seizing, taking, enticing, receiving, harbouring, obtaining, or having possession of such negroes or other chattels, as for the seizure of such negroes or other chattels themselves ; and upon the return of such warrant the judge or justice shall hear evidence as to the ques- tion of possession in a summary way, and cause the said negroes or other chattels to be delivered over to the party from whose posses- sion the same were violently or fraudulently taken or enticed away, or from whom the same absconded, or in whose peaceable possession they last tvere: Provided, such party shall before such judge or jus- tice enter into a recognisance,J with good and sufficient security, in double the amount of the value of such negroes or other personal property, and the hire claimed, if any, to cause the said negroes to be produced and forthcoming to answer any judgment, execution, or decree that may be had, issued, or made upon such suit or action at law or in equity as the opposite party may commence or prosecute within the next four years, touching the same ; and such recognisance" shall be returned by such judge or justice to the next superior court of the county where the same is taken, to be transmitted to the court where such suit or action may be commenced. And the securities upon such recognisance shall be bound and liable for the eventual condemnation money, and execution shall issue against them in the same manner as against securities on appeals: Provided, also, that when the party taking out the warrant shall refuse or be unable to give such security, then the judge or justice may in his discretion deliver over such negroes or other personal property to the opposite party, upon their entering into a like recognisance, with security of the same nature and effect, and to be disposed of in the same man- * For the form of such oath, see post, sec. 59. + For the form of such warrant, see post, sec. 60. t For the form, see post, sec. 61. 174 justices' courts. [Part nr. ner. And if, upon return of the warrant, it shall appear that the negroes or other personal property are in the possession, power, cus- tody, or control of the defendant, or any agent or friend of his, or acting for, or intrusted with, them for him, and the said defendant doth not produce, or cause to be forthcoming, the said negroes or other personal property, to be dealt with as this law directs, the said defendant shall be committed to jail,* there to remain in safe and close custody, without bail or mainprise, until the said negroes or other personal property shall be produced or forthcoming, to be disposed of as aforesaid : Provided, always, that no person or persons shall be so committed for refusing to produce, or cause to be forthcoming, any negr® or other personal chattel which he, she, or they shall sat- isfactorily prove to have been in his or her quiet and peaceable pos- session for four years next immediately preceding the passing of this act, or next immediately preceding the issuing of the warrant.—Daw. Comp. 207, 208. 31. The fees of the officers required to carry into effect the be- fore recited act shall be after the following rates, to be paid by the party against whom the decision of the justice may be made, and for which execution shall issue as on other judgments :—for affidavit to obtain a warrant, and making out the same, sixty-two and half cents; for trying the same, sixty-two and half cents ; for making out a recognisance, and returning the same to court, thirty-one andquar- ter cents; for making out a commitment, thirty-one and quarter cents; for each subpoena for witnesses, twelve and half cents. The sheriff or constable, for serving a warrant upon the person or persons in- eluded in the same as adverse claimants or offenders, shall receive the same fees as are allowed by law in criminal cases; and for ta- king the possession of the property included in the warrant; shall re- ceive the same fees as allowed by law in cases of attachment.—Acts 1830, p. 118, 119. 32. Whenevera person complains on oath, to a justice of the peace, that his debtor resides out of the state, or is removing without its limits, or of any county thereof, or absconds, or conceals himself, or stands in defiance of an officer, so that the ordinary process of law cannot he served on him, he may grant an attachmentf against said debtor, which may be levied on his estate, by a proper officer, where- ever the same may be found, or in the hands of any person indebted to him, or holding any of his effects; and if in the hands of any one, such person must be summoned to appear at the court, to be held in said district, as a garnishee to answer on oath what he is indebted to, or what effects he hath of the absent debtor : if the garnishee denies being indebted or having effects, the plaintiff may traverse such de- nial, and the same shall be tried at the succeeding term (unless there is a good cause for a continuance) by a jury of five persons, in the * For the form of the commitment, see post, sec. 62. f Justices of the peace may issue attachments returnable to the superior or inferior Courts under like circumstances and in like manner as the judges or justices of the said courts are empowered to do.—Prin. Dig. 243. For the forms in cases of attach- ihents and garnishment, see precedents, p. 4, c. I. Chap. 2.] justices' courts. 175 same manner as in cases of appeals; and if found against the gar* nishee, judgment shall be entered against him, as against the original debtor. But before the justice grants the attachment, he must take a bond from the person praying it, in double the sum claimed, paya- ble to the defendant, for satisfying all costs and damages which he may incur in case the plaintiff discontinues or is cast in his suit; which bond is to be returned to the same court of the attachment, subject to the use of the defendant if he sustains any injury. The attachment must be tried at or before the second term, after the one to which it is returned. If no bond is taken or returned, as above re- quired, the attachment must be dismissed with costs. Every attach- ment must be attested by the justice and advertised by the officer levying the same, fifteen days before court, at the place of holding court and one or more public places in the county ; and if issued within fifteen days of the next court, it must be returned to the sue- ceeding court.—Prin. Dig. 245, 246. 33. The property attached may be replevied by the defendant's giving bond and security to the officer levying, conditioned for his appearance at court, and abiding the order thereof. If the property is not replevied, and of a perishable nature, the justice on motion of the plaintiff may order a sale of it, and the proceeds to be paid into court, there to pay the plaintiff's demand if established, and the bal- ance, if any, to be returned to the defendant; sales made pursuant to such order must be conducted in the manner of constables' sales under execution. Whenever the garnishee deposes to debts or effects in his hands, judgment shall be entered against him, as against the original debtor, to the amount in his hands, and the property levied on and not replevied, after the plaintiff has established his demand, shall be sold and applied in satisfaction of the judgment, as if taken under execution. When the property thus sold is suffi- cient to pay the demand, or the same shall be of the nature of real estate, then the justice shall issue execution for the amount of the judgment and costs, or so much thereof as remains unpaid.—Prin. Dig. 246. 34. When any attachment returnable to a justice's court in this state shall be levied on land which has been claimed by any per- son or persons not a party to said attachment, it shall be the duty of the officer levying the same to return the claim papers to the clerk of the next superior court of the county where the land lies, which court shall cause the right of property to be tried in the same manner as in other claim cases. 35. When any attachment as aforesaid shall be levied on any negro or negroes, which may be claimed as aforesaid, it shall be the duty of the levying officer to return the claim paper to the clerk of the next superior or inferior court of the county in which said attachment has issued, and it shall be the duty of the courts afore- said to cause the right of property to be tried in the same manner as in other cases of claims. 36. The person or persons claiming as aforesaid, shall present their claim in the same manner, and be entitled to a replevy under 176 justices' courts. [Part III. the same rules and regulations as in other cases of attachments and claims.—Daw. Comp. 223. 37. Where garnishees return debts due the absent debtor, the court shall order them collected, subject to their order.—IYin. Dig, 246. 38. Persons instituting suits in a justice's court, may settle them at any time by the payment of costs. And where a defendant is una- ble to pay costs, the plaintiff shall.—Prin. Dig. 251. 39. In all cases where any justice of the peace in this state shall resign or remove out of the limits of the district for which he shall have been appointed, it shall be the duty of such justice to deliver the book of entry of all civil proceedings had before him for the re- covery of debts, or a fair copy thereof, to his successor in office, within sixty days after he may have been commissioned, or deposite the same with the clerk of the inferior court, Prin. Dig. 244; and in case of default herein he shall be fined and imprisoned.—See ante, p. 1, c. 8, sec. 14. 40. By the act of 1819 (see ante, sec. 25) it is declared that "the proceedings in the justice's court shall be uniform throughout this state." With the view of promoting an object so desirable and so essential to the administration of equal justice, we have collected and arranged from various English and American authorities the follow- ing summary of information, which may be found of great service to inexperienced justices in conducting the business of their courts. Of the Jurisdiction. 41. It has been seen (ante, sec. 1) that the civil jurisdiction of the justices' courts in this state is restricted to the collection of " liquidated demands or accounts not exceeding thirty dollars," and the act of 1820, re-enacting and extending the jurisdiction, provides that "all justices of the peace shall have power, in all cases of debt or liquidated demand, to give judgment for any sum not exceeding thirty dollars, exclusive of interest." From the legal definition of these terms,'con- sidered in connection with the express prohibition that "no justice of the peace shall sustain or try any satisfaction in damages for any tres- pass on the person or property of another," must be inferred the true character and extent of the civil jurisdiction with which these courts are invested. The legal acceptation of debt is a sum of money due by certain and express agreement, when the quantity is fixed and specified, and does not depend upon any subsequent valuation to settle it: such are bonds for a determinate sum; a bill or note, or a special bargain; so, also, if I verbally agree to pay a man a certain price for a certain parcel of goods, and fail in the performance, an action of debt lies against me, for this is also a determinate contract.-- 3 Black. 154, 155. When the demand is for a determinate sum and is liquidated,, the justice will not hesitate to take jurisdiction; and these he may denominate cases of debt. But when a claim is presented in the shape of an account, the justice is left to determine the character of it, and whether it falls legitimately under his jurisdiction. The following are the grounds upon which suits are usually brought in a justice's court upon unliquidated demands:—1. For goods sold Chap. 2.] justices' courts. 177 and delivered; 2. For work and labour done; 3. For money paid, laid out, and expended for the defendant; 4. For money loaned; 5. For use and occupation. All unliquidated demands based upon any of these grounds, it is believed, may be matters of adjudication in a justice's court.—See ante, sec. 5, where it is manifestly the design of the legislature to drive parties from the superior and inferior to the justices' courts, in all cases not strictly cases sounding in damages. All actions of this nature are confined to the higher courts. There are, however, various small fines and penalties, imposed by particular laws passed anterior to the adoption of the constitution, some of which are im- bodied in this work, and of which the magistrates' courts appear to have special jurisdiction given by the statutes; but the constitutionality of this jurisdiction in such matters has been doubted. It is clear that it was ousted previous to the amendment of the constitution in 1811, by which amendment it is believed, by the compiler of the laws of Georgia in 1820, to have been partially restored.—See sec. 1, art 3, Con. But it is recommended in such cases not to assume jurisdiction; for however expedient it may be to have many minor trespasses settled in these courts, and in the manner prescribed by the statutes referred to, yet the existence of a doubt as to the constitu- tionality of the jurisdiction, is reason sufficient to excuse all such cases.* * The following opinion has been furnished to the compilers, at their request, by a gentlemen of the profession. " T wo important questions have been propounded to me by the compilers of the Georgia Justice:— " ' 1st. Have justices of the peace authority, under the existing constitution and laws of Georgia, to try civil causes sounding purely in damages, or, as they are technically called, cases arising ex delicto ? "' 2d. Have they the authority to inflict criminal punishment under any of the stat- utes now found in our statute books V " Other pressing engagements have prevented me from giving to these questions that full consideration which their importance demands. If, however, the following sugges- tions should be deemed of any benefit to the compilers, they are at their service, to be used as they may think proper. " As to the yirs' question. There is no constitutional prohibition to prevent the legis- lature from granting to justices of the peace power to try causes sounding in damages ; there are some old statutes, however, which did grant this power; but I do not recol- lect any that have been passed since the judiciary act of 1799. By the 61st section of that act it is provided that—' J\o justice of the peace shall sustain or try any satis- faction in damages for any trespass on the person or property of such plaintiff.' With- out enteringjnto a criticism upon the legal import of the terms ' trespass on the person or property,'' it may suffice to remark, that the courts have generally considered this provision as an entire prohibition to the entertaining of ex delicto cases by justices of the peace. And if the legislature have not passed any act since the judiciary of '99 granting this power, it would seem not only to imply that they and the whole com- inunity regard this as a total prohibition of the power, but thatjdiey regard the pro- vision of the sixty-first section above cited as very salutary and expedient. And I think this construction of the courts, and conduct of the legislature, in complete ac- cordance with the doctrine of constructive or virtual repeals. I am therefore of opinion that this provision of the judiciary, conflicting with the ancient statutes granting the power to justices to try trespasses, &c., in certain cases, has repealed them; and if there be no subsequent statute (and I recollect none) granting the power to justices to try rx diliclo cases, they have no authority whatever for doing so. " As to the second question. This is a more delicate question, as it involves a consti- tutional principle. The people of Georgia very properly hold all their constitutional rights as very dear to them ; and feeling, in common with my patriotic fellow-citizens, ; high veneration for the foundation of all our rights, I should he among the last to arrive at those rights, or to exercise any powers or privileges that are to be sought or enforced, by constitutional construction. " So long as the constitution interposed no prohibition, the legislature had the power to vest criminal jurisdiction in any constitutional tribunal. But the constitution, being the supreme law of the land, (so long as it does not conflict with the constitution of the I'nited States,) must repeal all laws inconsistent with its mandates; or, in other words, no power inconsistent with the constitution can be exercised by any tribunal. By the z 178 justices' courts. [Part III. 42. We shall now consider the several grounds enumerated upon which suits are instituted in a justice's court, in the order in which they are stated. First.— The action for goods sold and delivered lies wherever goods and chattels are sold and delivered by one man to another, either at a price agreed upon, or left to be implied by the law, at what the goods are reasonably worth; and a sale to the wife, agent, or servant, or other person authorized expressly, or by the law, to purchase in behalf of the defendant, is a sale to the defendant himself, and may be so stated in the account; for it is a maxim in law, applicable to every act, that whatever a man does by another he does by himself. And where my servant has authority to buy and sell goods for me, I am answerable for his acts; and where he usually buys upon credit, I am accountable, though he buy without my ex- press orders; and sending my servant to you to deal on a credit once, would make me liable though he should deal with you a second time contrary to my orders, unless you have notice of my orders. And so, when your servant brings me various articles on credit, which I pay you for, and he afterward continues to bring as usual, but I pay him the money, telling him I will deal no more on a credit, and he converts the money ; no notice being given to you of this new arrangement with your servant, you may recover for the articles thus paid for.—Yide cases cited in Com. on Con. 218, 225. An action will not lie till after a credit on the sale of the goods has ex- pired, unless indeed the buyer procure the credit fraudulently, under fraudu- lent pretensions; as if he grossly misrepresented his circumstances, or is about running away, or going off to distant parts; in such cases the credit is void, and the price, due immediately.—I Esp. Rep. 430 ; 4 East. 76. If he that selleth anything doth upon the sale warrant it to be good, the law annexes a tacit contract to this warranty, that if it be not so he shall make compensation to the buyer. The warranty must be at the sale, and not after; for there it is without consideration, and is void. If the seller know the goods to be unsound, and hath used any art to disguise them, or if they are in a shape different from what he represents them to be to the buyer, this artifice shall be equivalent to an express warranty, and the vender is an- swerable for their goodness. A general warranty will not extend to guard against defects that are plainly and obviously the object of one's senses. In the sale of provisions, it is always implied that they shall be wholesome. —3 Black. 166. When goods are sold to be paid for in labour, which the buyer has offered to perform, or not been in default, an action will not lie for them.—13 Johnson's Rep. 56. 43. Second.—For work and labour done. In this account may be included a charge for materials, and other necessary things used and employed in and about the particular service performed; as amendments of the constitution in 1811, " exclusive and final jurisdiction in all criminal cases" (with a few enumerated exceptions, of which the power in question is not one is vested in the superior courts. All acts, therefore, which were passed previously to the adoption of the constitution as amended, giving the power to justices to punish criminally, (except as therein excepted,) were virtually repealed by the constitution: and if any, granting such power, have been enacted since these amendments, they are unconstitutional and void. i am therefore of opinion that justices of the peace cannot punish criminallyexcept in cases provided by acts passed in conformity with the amended constitution." Chap. 2.] justices' courts. 179 where a carpenter finds nails, or a physician finds medicines. For all of which, as well as for goods sold and delivered, where there is no price agreed on, the law implies a promise to pay what the services and goods are reasonably worth, and which may be valued by witnesses acquainted with the subject.—Co wen's Justice, 59. It is worthy of notice for all those employed on hire, that where there is an agreement to work so long, at such price, or an agreement to do a par- ticular piece of service at a certain price, or to work so long, or to do a particular piece of work, without any specific price agreed on, the party employed has no right to go forward and perform for a part of the time, or a part of the job, and then break off, without his employer's consent, and bring his action for the work as Tar as he has gone; on the contrary, a strict performance, according to agreement, is a condition precedent; and unless the labourer fulfils it, to the utmost of his capacity, he can recover nothing. But in the case of an infant, whose contract is void, it would undoubtedly be otherwise; for though he is not bound to fulfil his agreement on his part, the very circumstance of its being void, or in fact as no agreement, leaves it open for the law to imply a promise of compensation for the work which he has actually done, according to the reasonable value; nor if he com- pleted the work, would he be bound by the price agreed, if it should turn out to be unreasonable.—Cowen's Justice, 59, 60. In an action for services, whether common, mechanical, or professional, except in the case of attorneys, solicitors, and counsel,* the defendant may mitigate the damages, or defeat the action altogether, according to the justice of the case, by showing that the services were done unskilfully and arc worth less than the plaintiff's claim, or worth nothing; and this especially where no price is agreed, but left to be implied by law; and even where a certain sum is stipulated for the work this defence may be set up.—7 East. 479; 2 Com. on Con. 363. It is settled, that a past or executed consideration will not be good, unless performed at the express or implied request of the party promising; for I shall not be permitted to do you a kindness, and then charge you with it, even though you promised to pay for it. But. where the consideration is actually beneficial to the defendant, the law will sometimes imply a request; as if I pay your debt, or buy goods for you, and you agree to the payment, or receive the goods, or. if the plaintiff bury the son or the wife of the defendant who die in his absence ; in this instance, the law will imply a request.—1 Com. on Con. 23; 14 Johnson, 188. 44. Third.—For money had and received by the defendant to the jriaintiff's use'. It is a general description of all cases in which the action of assumpsit for money had and received lies, that the de- fondant is obliged, by the ties of natural equity and justice, to refund or pay money which he may have received belonging to the plain- tiff.—2 Burr." 1005 ; Doug. 407. It lies, therefore, to recover all moneys received by an agent for his prin- eipal, an attorney for his client, sheriff or constable on execution, or a justice in the course of his business, who all, in some degree, stand in the relation of agents to the party for whom they receive it. To recover back money paid under a mistake, or through the deceit of the other party : as if two men reckon together, and one overpays the other through mistake, the money so overpaid, becomes money had and received to the use of the party paying it; or if a man falsely tells me he has paid certain money, or done certain work for me, and I pay him for it, the money so paid by me becomes, by this deceit, money had and received to my use.—Cowen's Justice, 68. * Our statutes make no such exceptions.—See, post, p. 3, c. 16, s. 9, 10. 180 justices' courts. [Part Hi. To recover back money paid upon consideration which happens to fai\': as if I pay a man for carrying my goods, and he fails to carry them with- out my fault, or I advance money to a man upon his promise to sell and deliver me certain goods, and he fails to do so; I can recover the money so paid in either instance, in an action for money had and received to my use.— Cowen's Justice, 68, 69. To recover back money paid to any one, acting under, or in pursuance of a void authority: as if a man comes to me in behalf of my creditor with a forged order, or power of attorney, to receive the money, and I pay him the debt; although we both supposed the order or power to be good, yet, the authority being in fact forged and void, I can recover the money back in this action.—lb. 69. To recover back money obtained from any one by extortion, imposition, or taking an undue advantage of the party's situation: as where I pledge my horse for a debt of one hundred dollars and the interest, and I tender the sum due, and demand the horse, but the bailee refuses to redeliver him unless I pay an additional sum beyond what is due, which I comply with in order to get possession of my property; or if an officer, as a sheriff or con. stable, extorts money, or charges and receives exorbitant fees : in all these cases, the money thus paid may be recovered as money had and received to the injured party's use.—lb. 69. This action lies, also, to recover back money embezzled, or which any person has been defrauded of by cheating or otherwise ; as where money is embezzled or stolen by a man's clerk.—lb. To recover back money paid under an erroneous judgment or adjudication of any court, if the same is afterward reversed: as if I pay money on a justice's judgment against me, which is afterward set aside on certiorari; I can recover this money back, in this action, from the opposite party.—lb. 45. Fourth.—For money paid, laid out, and expended for the de- fendant: as where I pay a debt at his request, or an accommodation note given by me for his benefit, or pay money for another as surely, 8 Johnson, 249; or where one of several sureties pays the whole money, in which last case he may bring this action against the others severally for their shares ; and in case I am obliged to pay money for another in any other way, as if, I being a sheriff or constable, the defendant escapes from an execution in my hands, leaving me to pay the debt, or if my goods, being on the premises of another with his consent, are distrained for rent due from him, and I am obliged to pay the rent in order to release them : I can maintain an action in these, and many of the like cases, for money paid, laid out, and expended, against the person by whose default 1 have been obliged to pay the money. But if a collector of taxes pay over my taxes to the county treasurer without demanding it of me, this being a vol- untary payment, an action will not lie to recover the money so paid.—10 Johnson, 361. But in these cases, if the money be paid at the request of the party liable, or he afterward promise to pay it, the action will lie.—lb. 404. To sustain this action, it must appear that money has been actually ad- vanced by the plaintiff. But the giving a negotiable note to discharge. the debt of the principal, would be equivalent to the payment of money.— 8 Johnson, 202. 46. Fifth.—For money loaned and advanced by one person to an- other. This action of assumpsit also lies: so, for money advanced to A, at the request of B, who promises to pay it, an action lies against Chap. 2.] justices' courts. 181 B, as for so much money lent and advanced to him, 1 Burr, 373; so, for money lent to a married woman at her husband's request, an action lies against the husband, 7 Taunt. 432; and where money is lent to one at the request of another, it is a loan to the latter, and should be so charged.—6 Mod. 77. In order to maintain this action, there must be an actual loaning of money.—Co wen's Justice, 80. 47. Sixth.—For use and occupation. A contract for rent or hire, whether written or verbal, may be sued in justices' courts; but if lodgings are let out for the purpose of prostitution, an action will not lie for the use and occupation.—2 Com. on Con. 510. Of the Parties. 48. Every action on contract must be brought and carried on in the name of the person to whom the engagement violated was origi- nally made, unless it is transferrable, as in the case of a promissory note ; in which case, where the contract is assigned or transferred, it may be brought in the name of the assignee, indorsee, or bearer.— 1 Chit. PI. 3. And where the claim is against more than one, all should be made defend- ants, unless they engage jointly and severally, in which case all or either may be sued ; and if too many persons be made defendants, it is a fatal objection. — 1 Chit. PI. 31,2,3. Where the sum of money is due to several persons jointly, they must all be named as plaintiffs, and if too many or too few be named, it will be fatal to the suit at any stage of the proceedings, on being duly objected to. But if one or more of such joint claimants be dead, the suit may be brought in the name of the survivors.—lb. 7, 8, 9, 12, 16. And where several persons are jointly liable, and one or more die, the action must be brought against the survivors.—lb. 37, 38. Executors and administrators must all join, and cannot sue separately.— lb. 12. For a debt due from a single woman before marriage the husband is liable, and must be joined with the wife in an action against him; but if the wife survive, she may be sued therefor alone.—lb. 42, 44. The Pleadings. 49. The parties having properly appeared, the next subject of consideration is the pleadings in the cause. It is hardly necessary to mention, that by the pleadings in a suit is not meant, as by many people it is understood, the arguing or advocating the cause before the court; but the allegations of the parties, briefly setting forth the cause of action on the part of the plaintiff, and the defence on the part of the defendant, which, in the superior courts, are drawn out with great exact- ness and perspicuity; to which proceedings there can be no legal objection, in justices'courts, in case the parties prefer it. But as the suiters of the court, and indeed the justices themselves, are presumed, in a large majority of cases, to be plain.people, unacquainted with legal learning, pursuing a right in mat- ter> of so small concern, as not to afford the aid of professional men, the proceedings of these courts are calculated on a plan of simplicity, at least; wo much so, as to dispense with that legal formality which would render pro- ft ssional abilities necessary, in making out the demand on one side, or the defence on the other. Justices' courts are not courts of record, and do not proceed according to the course of common law, and, so far as their powers are concerned, they 182 justices' courts. [Part III. are confined strictly to the authority given them by statute; they can take nothing by implication, but must show the power which they exercise expressly given them in every instance. The superior court will, moreover, require their compliance with the forms prescribed by the statute ; and if they have been departed from, the proceedings cannot be supported.—Cow- en's Justice, 303. These proceedings, however, so far forth as regularity and form are in question, will be reviewed with liberality; and in the pleadings, technical nicety or legal precision is not required; but it will be sufficient if there ap- pear a good ground of action, within the justice's jurisdiction, and that the merits of the cause have been fairly tried. This total disregard of form exists, however, when the pleadings come up for review before the superior court on certiorari, where no objection was made to their form or substance in the court below. Where this is the case, almost anything will serve the description of pleadings, provided it appears to the superior court that the merits have been fairly tried. But greater accuracy of pleading may be insisted on by the parties while in the court below; and not only a lack of substance, but even of form may be objected to, which it would be error for the justice to disregard.—lb. After an issue of fact joined in a justice's court, the only question which can afterward arise upon the pleadings in the same court, and before its removal by certiorari or appeal, is whether the proofs exhibited in the course of trial are warranted by the pleadings interposed by the parties. This objection must always be made in the court below, or it will not be available on certiorari. Where either the cause of action or the defence is stated in plain language, and in words according to their ordinary import in conversation, this will be enough, though the strict rules of special pleading at the common law be violated. Indeed it is said, (and with the greatest propriety,) that special pleading in a justice's court is to be discountenanced ; that it is calculated to mislead magistrates, and involve the proceedings of their courts in all the technical niceties of a court of record. Whenever, therefore, the superior court can possibly intend, from the proceedings before them, that the merits were fairly tried in the court below, they will not examine or test by tech- nical rules the formality of the pleadings.—lb. 315, and authorities there quoted. There is no statute requiring the pleadings in a justice's court to be in writing, nor is this necessary; but it is certainly advisable, in all cases where the subject of the suit is contested, to reduce the pleadings to writing. Everything in a justice's court shall be taken most strongly in favour of the party pleading it, or rather, if the meaning of the words used be doubtful or equivocal, they shall be construed most strongly in favour of the party using them. The language of pleadings in all courts is to have a reasonable intendment and construction; and where a matter is capable of different meanings, that shall be taken which will support the pleadings, and not the other, which would defeat it.—lb. 322. Of the Evidence. 50. In conducting the evidence, the party that hath the affirmative begins; this is generally the plaintiff, unless the defendant contents himself with pleading affirmatively some special plea, without join- ing with it the general issue. After the party thus holding the affirmative goes through, the adverse party follows: when he is done, the party having the affirmative will, be permitted to give evidence to rebut the testimony of his adversary, and impeach the credit of his witnesses ; and then the other party the same.—lb. After the evidence is closed, the parties, by themselves or counsel, may make such observations to the court or jury as are applicable to their case: Chap. 2.] justices' courts. 183 tlit> party holding the affirmative to close the argument. This is the natural order of the trial, either before the justice or jury. Before the cause is submitted to the jury by the parties, it frequently becomes a question, whether either party may call further testimony in the cum1. After the cause is finally submitted, either to the justice or the jury, it is then clearly too late. At any time before this, or at any time before the counsel on both sides have closed their arguments, it is discretionary with the justice, either to admit or reject such further testimony ; and if such discretion be exercised properly, the judgment will not for that reason be reversed. It can never be claimed by either party at trial, as a matter of strict right, to open the cause to proof after full opportunity has been given to each side to be heard, and the testimony has been regularly, and by mutual consent, closed. The subsequent admission of testimony must rest upon the discretion of the court, duly exercised according to the circumstances of the case. If the opposite party be present, with his witnesses and proofs, it will be reasonable to receive the additional testimony offered, for then no injury can result to him ; but if after the party offering the testimony declares he has done with the examination of witnesses, and the opposite party, or his witnesses, have, in consequence of this, left the court, it would be unrea- sonable to receive such additional testimony, unless the opposite party and his witnesses, are first recalled. Witnesses are not bound to stay after the parties have declared that they have done with the proofs; for this is equiva- lent to a discharge of the parties.—Cowen's Justice, 539, 540. The Trial before the Justice. 51. After an issue of facts is joined, the justice will proceed to the trial by hearing the evidence, and give judgment accordingly. In doing this he ought ever to keep in mind that he is acting in a two- fold capacity: as a judge, directing and controlling the proceedings according to the established rules of law ; and as a juror, trying the facts. The first thing which it is the duty of the justice to turn his mind to, and in doing which he will find advantage, is the issue be- tween the litigant parties, that is, what they have affirmed on one side, and denied on the other. Persons unaccustomed to legal investigation are very apt to drag into their altercations on trial abundance of extraneous irrelevant matter. To keep them to the true points requires an attentive, discriminating mind; great convenience will result from observing rules, and pursuing a correct system. A justice is not, like a juror, liable to be challenged for favour, partiality, or even corruption ; though he would be subject to indictment for the latter. Thus, where the justice was the father-in-law of the plaintiff, (13 John. 181,) or where he had given an opinion in the cause, (12 John. 356.) it is no cause of challenge. But there is a gross indecency in one's trying a cause, as justice, for a near relation, which should induce the superior court, or cer- tiorari, to scrutinize his proceedings with a jealous eye. The Trial by Jury. 52. The room for the hearing of the cause should be kept quiet, and the jury afforded every facility for hearing the cause possible. They should be kept as distinct as may be from the interference of either the parties or strangers ; and it has been holden in one case, that when the justice permitted the jury to be treated with spirituous liquor during the trial, though it was with the consent of both parties, this was irregular, and the verdict and judgment were set aside on certiorari for this cause.—15 John. 455. 184 justices' courts. [Part III. After the evidence is closed, and the parties, or either counsel, have finished their observations, the jury may, if they please, give their verdict immedi- ately, without being alone. But in all cases where any doubt or difficulty can possibly arise, it is best for the jury to take some time to deliberate on the evidence, in which case they must be alone.—Cowen's Justice, 540. The jury, in a justice's court, have a right to decide both the law and the fact, subject to a review, upon certiorari, if they decide erroneously.—lb. 541, and the authorities there cited. It is irregular for the justice to tell the jury what a piece of testimony was, after they have returned, without the parties being present.—10 John. 239. But when the jury merely asked the justice if they could add anything to the plaintiff's demand, to which he answered No, this was not holden a sufficient cause to set aside the verdict, though the parties were absent, and not notified to attend.—5 John. 111. If after every reasonable endeavour to agree on a verdict, the jury either will not or cannot do so, they may be discharged by the justice.— 2 John, case 275. The jury may at anytime before their verdict is recorded, correct it, either in form or) substance. They may do this of themselves, or on the sug- gestion and advice of the justice. They may do it immediately on discov- ering or being apprised of the mistake, or may retire a second time, and make the correction on more mature deliberation at their room.—Cowen's Justice, 544; and see title Jurors. 53. Form of Subpoena for Witness.* Georgia, ) James Johnson Baldwin County. ^ William Williamson. To John Goodall, greeting. You are hereby commanded, that laying all other business aside, you personally be and appear at a magistrate's court, to be held in the county of Baldwin, for the 320th district, on the first Saturday in Sep- tember next, then and there to testify, and the truth to say, on the part and in behalf of the defendant. Herein fail not, on pain of thirty dollars. Witness my hand and seal, this tenth day of August, 1835. I. T. Cushing, J. P. (L. S.) 54. Form of a Commission to take Interrogatories in a Justice's Court. Georgia, ) By Isaac T. Cushing, a justice of the peace for Baldwin County. $ said county, and the three hundred and twentieth district company of said state. To [here the commissioners are to be named], esquires, greeting Whereas, there is a certain matter of controversy now depending in the justice's court of said district between James Johnson, plaintiff, and William Williamson, defendant; and whereas, John Goodall is alleged as being a material witness in said suit, and cannot attend said court in person, without manifest inconvenience. Now know ye, that I, reposing especial trust and confidence in your prudence and fidelity, have appointed you, or any two or more of you, who are hereby authorized and required to cause the said John * For the form of a summons, see p. 4, c. 3, s. 21. Chap. 2.] justices' courts. 185 Goodall personally to come before you, and, after being duly sworn, to examine him concerning the said suit, agreeable to the interroga- tories hereunto annexed ; and the answers to the same being plainly and distincdy written, you are to send the same closed up under your hands and seals to our said court, to be held on the first Saturday in St/'Umbtr next, together with this writ. Witness my hand, this tenth day of August, 1835. Note.—The answers should be written down by one of the commissioners, distinguishing the answers to the different questions in the same order as they are set forth in the interrogatories, and certified in words like these: "The foregoing answers to interrogatories taken, sworn to, and subscribed before lis this eighteenth day of August, 1835," and then sign as commissioners. Then envelope the whole, and seal the envelope with as many seals as there are commissioners, and write their names one across each seal; state the case (mi the hack, and direct it to the justice who issued the commission. For taking interrogatories for a justice's court, one of the commissioners must be a justice of the peace; not so in the superior or inferior court.—Fos- ter's Fig. p. 422. Form of making out Interrogatories for a Justice's Court. Georgia, ) In justice's court of the three hundred and twentieth Interrogatories to be exhibited to John Goodall, a witness material for the plaintiff, residing out of the county aforesaid. Inter. 1st. Do you know the above named parties? [ Thru go on and ask all questions necessary. It must then he dated and signed by the party for whose benefit they are. A copy must be served on the opposite party Jive days previous to issuing the comm ission, to enable such party to propound cross interrogatories if it is wished. The cross interrogatories, if any, must be certified and signed in the same manner that the direct interrogatories «re.] In making out the answers, state the case as is stated at the head of the interrogatories, then commence with this form :— Georgia, ) By virtue of a commission from the justice's court Jonrs County. £ of the three hundred and twentieth district company of said state, to us directed, we have caused John Goodall, the person in said commission named, to come before us, and being duly sworn true answers to make to certain interrogatories to the said commission annexed, deposeth and answers as follows:— To the first interrogatory he answers, &c. 55. Form of an Execution from Justices' Courts. Georgia ) Ba'dwin County. \ To a11 and sinSular the constables, greeting. You are hereby commanded, that of the goods and chattels, lands and tenements of William Williamson, you levy by distress and sale therebf, sufficient to make thirty dollars principal, and interest from I. T. Cushing, J. P. 1SG justices' courts. [Part III. the first day of January, 1835, which was adjudged against him at a justice's court, held in and for Captain Bomans district on the sixth day of August, 1835, in favour of James Johnson, and also the further sum of one dollar and twenty-jive cents, for the cost thereon. And have you the said sums of money, together with this writ, on or before the first Saturday in September next, to render in full satisfaction for said debt and costs. Herein fail not. Given under my hand and seal this tenth day of August, 1835. I. T. Gushing, J. P. (L. S.) 56. Form of Affidavit claiming Property levied upon. Georgia, ) Before me, Isaac T. Cashing, a justice ofthe Baldwin County. ) peace for said county, personally came Moses Takeall, and being duly sworn, saith, that a negro man by the name of Sam, which has lately been levied on by virtue of a fi. fa. issued from the superior (or inferior, or justice's) court of said county, Jacob Roberts vs. Daniel Tight, is his, this deponent's property. Sworn to and subscribed before me, this tenth day of August, eighteen hun- Moses Takeall. dred and thirty-Jive. I. T. Cashing, J. P. 57. Form; of a Bond to be taken of the Claimant, which must be doable the value of the Property levied upon. Georgia, > Know all men by these presents, that we, Mo- Baldwin county, y ses Takeall and David Dobbs, are held and firmly bound to Daniel Takecare, sheriff of said county, in the just and full sum of six hundred dollars, to the true payment of which we bind ourselves, our heirs, executors, administrators, and assigns, jointly and severally, firmly by these presents. Sealed with our seals, and dated this tenth day of August, eighteen hundred and thirty-five. The condition of the above bond or obligation is such, that whereas Daniel Takecare, sheriff of said county, has this day levied a fi. fa. upon a negro man by the name of Sam, which said fi. fa. was issued from the superior court of said county, Jacob Roberts vs. Daiihl Tight, and the said Moses Takeall hath interposed his affidavit, claiming said negro man Sam. Now, should the said Moses Takeall pay to the said Jacob Roberts, the plaintiff in said fi. fa,, all damages which the jury on the trial of the right of property may assess against him, in case it should appear that said claim was made for the pur- pose of delay, then this obligation to be void, else remain in full force, Test, Nathan Notice. Moses Takeall. (L.S.) David Dobbs. (L. S.) 58. Form of a Bond for the forthcoming of Property when the Claimant wishes to take or keep possession of the Property claimei Georgia, ) Know all men by these presents, that we, Mo- Baldwin county. y ses Takeall and John Good all, are held and firmly bound to Daniel Takecare, sheriff of said county, in the ju^ Chap. 2.] justices' courts. 187 and full sum of nine hundred dollars, (or treble the amount of the debt on which the fi. fa. is founded.) To the true performance of which we bind ourselves, our heirs, executors, administrators, and assigns, firmly by these presents. Sealed with our seals, and dated this tenth day of August, eighteen hundred and thirty-five. The condition of the above bond or obligation is such, that whereas the said Daniel Takecare, sheriff as aforesaid, hath lately levied a fi. fa. issued from the superior court of said county, Jacob Roberts vs. Daniel Tight, on a negro man by the name of Sam,, which has been claimed by the said Moses Takeall. Now, should the said Moses deliver the said negro man Sam, so levied on, at the time and place of sale, or to the said John, for him, (provided the man Sam so claimed should be found subject to such execution,) then the above bond or obligation to be void, else to remain in full force and virtue. Test, John Loving. Moses Takeall. (L.S.) John Goodall. (L. S.) 59. Form of Affidavit to obtain a Warrant for the restoration of the possession of Personal Property. Georgia, ) Before me, Isaae T. Cushing, a justice of Baldwin County. ) the peace for said county, personally came David Honesty, and after being duly sworn, saith that three slaves, viz. Bob, Sam, and Randal, (or other personal property,) have been taken, enticed, or carried away by fraud, violence, seduction, or other means, (whatever the fact was,) from the posses- si on of this deponent, or that (the said negroes, or other personal chattel) having been recently in the quiet, and legally and peacea- bly acquired possession of this deponent, have absconded or disap- peared without the consent of this deponent, and as he believes have been harboured, received, or taken possession of (whichever is the fact) by David Troublesome, of said county, under some pretended claim, and without lawful warrant or authority, and that this depo- nent* claims a title to, or interest in said (negroes, or other personal chattel) or the possession thereof (as the fact may be.) Sworn to and subscribed before me, this tenth day of August, eighteen hun- David Honesty, dred and thirty-five. I. T. Cushing, J. P. CO. Form of Warrant. Georgia, ) By Isaac T. Cushing, a justice of the peace for Baldwin County. ) said county. To the sheriff of said county, or other legal officer. Whereas, I have this day received information on the oath of David Honesty, that (here state particularly what was sworn to.) These are therefore to command you to apprehend the body of the said David Troublesome, and also seize the aforesaid property, (here * If the deponent be agent, or attorney bona fide, he must claim as such. 188 justices' courts. [Part III. name the property in question as in the affidavit,) and bring them be- fore me or some other justice of the peace for said county, that such proceedings may be had in the premises as the law directs. Given under my hand and seal this tenth day of August, eighteen hundred and thirty-five. I. T. Gushing, J. P. (L. S.) 61. Form of Recognisance given by the Per son to whom the Prop. erty may be delivered. Georgia, ) Be it remembered, that on the tenth day of Baldwin County. ) August, in the year of our Lord eighteen hun- dred and thirty-five, David Honesty and James York, of said county, came before me, Isaac T. Cushing, one of the justices of the peace in and for said county, and did acknowledge themselves to owe jointly and severally to David Troublesome the sum of eighteen hundred dollars* current money of said state, under the condition that they cause (here state the property delivered up) to be pro- duced and forthcoming to answer any execution, judgment, or decree that may be had, issued, or made upon a suit or action at law or in equity, as the said David Troublesome may commence or prosecute within the next four years touching said property, then this recognisance to be void, else to remain of full force and virtue. Taken before me the David Honesty. (L. S.) day and year aforesaid. James York. (L. S.) I. T. Cushing, J. P. 62. Form of the Commitment where the Defendant refuses to pro- duce the Properly, &c. Georgia, ) By Isaac T. Cushing, one of the justices of the Baldwin County. ) peace for said county. To the sheriff of said county or any constable thereof, and to the keeper of the common jail thereof. Whereas, David Troublesome, of the county aforesaid, hath been arrested at the instance of David Honesty for a violation of the law entitled, " An act more effectually to quiet and protect the pos- session of personal property, and to prevent taking possession thereof by fraud or violence," passed in eighteen hundred and twenty-one, and the said David Troublesome having been.brought before me upon the return of the warrant, it appearing that the said slaves, Bob, Sam, and Randal, the subjects of controversy between the said David Honesty and David Troublesome, are in the possession, power, custody, or control of the defendant, David Troublesome, or an agent or friend of his, acting for or intrusted with them for him, (in- sert whatever of the foregoing were the true gr ounds,) and the said defendant being required, and not producing, nor causing to be forth- coming the said negroes or other personal chattel, to be dealt with as the law directs. I do, therefore, hereby command you, the body * Or double the value of the negroes or other personal property and hire claimed (if any.) Chap. 3.J CONSTABLES. 189 of the said David Troublesome into your custody to take, and him safely to convey to the common jail of said county ; and you, the keeper of the said jail, the said David Troublesome into your custody to receive and him safely keep, until he be from thence delivered by due course of law. Hereof fail not. Given under my hand and seal this tenth day of August, eighteen hundred and thirty-jive. I. T. Gushing, J. P. (L. S.) CHAPTER III. CONSTABLES. 1. An election shall be held at the place of holding justices' courts in each captain's district,* on the first Saturday in January of each and every year, by persons entitled to vote for members of the General Assembly, for at least one and not more than two constables, which election shall be superintended by at least one of the justices of the peace and two freeholders, who shall hold his or their appointments until the first Saturday in January next thereafter, and until his or their successors are elected and qualified.—Daw. Conip. 407. 2. When an election shall fail to be held at the time aforesaid, or a vacancy happen, it shall be the duty of the justice or justices of the district to advertise an^election in three of the most public places in their district, giving at least ten days' notice of the time and place; which election shall be conducted in the manner before described, and the persons elected shall hold their appointment until the first Saturday in January next thereafter, and until the election and quali- fication of their successors.—Daw. Comp. 407. 3. And the justices of the peace (or either of them in the absence ofthe other) in the several districts in this state, may appoint consta- bles for special purposes or to meet sudden emergencies, and also in cases where the constable of the district may be absent from thedis- triet or from providential causes be disabled or prevented from dis- charging the duties of his office, the justices may deputize, but in no other cases than those mentioned.—Acts of 1834, p. 100. 4. Before such constables elected as aforesaid shall enter on the duties of their appointments, they shall take and subscribe the follow- ing oath before any justice of the inferior court or justice of the peace. " I do solemnly swear {or affirm) that I will duly and faithfully per- form all the duties required of me as constable of the county of according to the best of my abilities and understanding." And such constables shall give bond with two or more good and suf- ficient securities, to be taken by, and judged of by the justices of the peace in their respective districts, payable to the justices of the infe- rior courtf of the respective counties, in the sum of five hundred dol- * For constables in Glynn, Liberty, and Wayne, see acts of 1830, 102. t By the act of 1834, pamphlet, p. 225, the constables' bonds which had been made payable to the governor as directed by the act of 1799, instead of the justices of the in- ferior court as directed by this act, are legalized and made valid. 190 CONSTABLES. [Part III. lars, (unless said district be in a town, and in that case one thousand dollars,) for the faithful performance of the duties of their office of constable; which bonds, so given, shall be deposited in the clerk's office of the inferior court of the respective counties in this state, and may be sued by order of the inferior court, upon the application of any person who shall make it satisfactorily appear that they have been injured by the misconduct or neglect of duty in said constable; which suit shall be brought in the superior courts, for the use of the person so injured.—Prin. Dig. 252. 5. It hath always been held that the constable is the proper officer to a justice of the peace, and bound to execute his warrants, and therefore it hath been resolved, that when a statute authorizes a jus- tice of the peace to convict a man of a crime, and to levy the penalty by warrant of distress, without-saying to whom such warrant shall be directed or by whom it shall be executed, the constable is the proper officer to execute it, and is indictable for disobeying it.— 2 Hawk. 252. 6. Constables are required to summon all juries for justices' courts, and to attend such courts.—See ante, c. 2, s. 2(5. 7. A civil warrant or summons shall be served by any constable of the district in which the defendant may reside, duly appointed and sworn to the faithful execution of his office, either by giving a copy to the defendant in person, or by leaving a copy thereof at his, her, or their usual and notorious place of abode, at least ten days before the day of trial: and it shall be the duty of the constable serving the summons or warrant to make an entry of service thereon in writing, and sign such return.—Prin. Dig. 245. 8. Any constable of the county may serve any warrant or sum- mons wherein any justice of the peace or constable may be a party; and may summons any witnesses, and serve any bail warrant or attachment, and make due return thereof, to the court to which the same may be made returnable ; and where it may so happen that there is no constable in the district, it shall and may be lawful for any constable in the county to act in the said district, in all respects as if such constable had been appointed for said district.—Prin. Dig. 251; but see ante, sec. 2. 9. It shall be lawful for any constable, and he is hereby required, in all cases where a bail or criminal process is placed in his hands, and the person against whom the same may be is moving about from one district to another, to serve the said process in any district within the county in which he may be constable. And may carry the pris- oner out of the county if there is no jail in it.—Prin. Dig. 228. 10. It shall be the duty of constables to advertise all intended sales at two or more of the most public places in their proper district, and at one or more of the most public places in the county, at least fifteen days before any sale, and shall give a full and clear description of the property to be sold ; and all constables' sales shall be at the place of holding justices' courts in the several company districts, and on a court day, and that between the hours of 10 and 3 o'clock.*—Prin. * Time extended to 4 o'clock.—Daw. Corop- 308. Chap. 3.] CONSTABLES. 191 Dig. 240. Constables are to be allowed a reasonable compensation for carrying property levied on to the place of sale, to be adjudged by the justice of the district.—lb. 250. Where personal property is sold under the encumbrance of a mortgage, or where a life estate or an estate for a term of years in personal property is sold by a consta- ble, see post, chap. 4, s. 39. 11. No constable shall be authorized to levy on any negro or negroes, or real estate, unless there is no other personal estate to be found sufficient to satisfy the debt; in which case, they may levy on the same wherever to be found, and deliver over the execution to the sheriff of the county, with a return of the property levied on, who shall proceed to sell the same with such formalities as are prescribed for the sale of real estates.—Prin. Dig. 249,250. 12. Constables are authorized and bound to levy all attachments returnable to either the justices,' the inferior, or superior courts* in the county where he is constable, and advertise the same, if returnable to a justice's court, at the place of holding said court, and at one or more public places in said county, at least fifteen days previous to the court, (Prin. Dig. 246;) and if returnable to either of the other courts, at the courthouse of the county, at least thirty days before the sitting of the court.—See General Attachment Laws. 13. In all cases where a writ of execution from a justice's court shall have been levied on one or more slaves, and a claim to such slaves shall have interposed, according to the laws in force for the time being, such execution and claim shall be returned to the next term of the superior or inferior court, whichever may first happen, of the county in which such execution was issued, ar>d shall be there tried in the same manner as other claims, which by law are or shall be returnable to those courts respectively.—Daw. Comp. p. 215. See forms, ante, c. 1. 14. It shall be the duty of the constables of the several districts to levy all executions put into their hands agreeably to the tenor thereof, and to make due returns of the same, together with all summonses or warrants, to the court to which they may be made re- turnable; and in case of neglect or refusal to serve and return any warrant or summons as aforesaid, the justice may fine the constable so offending in a sum not exceeding the amount of the debt due by the defendant; and all constables shall, moreover, be subject to be prosecuted and tried for malpractice in office, in like manner as is pointed out for justices of the peace, and liable to like pains and penalties.—Prin. Dig. 250. 15. Constables shall be subject to be ruled by their respective justice's courts, and compelled to give an account of their actings and doings, or pay over moneys which they may have received or col- lected in their official capacity, under the same regulations as are pursued in the superior court in relation to officers of said court.— Daw. Comp. 203; but see next section. * The justices of the peace may issue attachments returnable to either of the courts above.—See Prin. Dig. 243. 192 constables. [Part HI. 16. So much of the two preceding sections as relate to the paying over money collected, is amended by the act of 1822, which provides, that it shall be the duty of the sheriffs, coroners, justices of the peace, constables, clerks of the superior and inferior courts, and attorneys at law in this si ate, upon application, to pay to the proper person or persons, his, her, or their attorney, any money they may have in their hands ; and if not promptly paid, the party or parties entitled thereto, his, her, or their attorney, may serve said officer with a written de- mand for the same, and if not then paid, for such neglect or refusal the said officer shall be compelled to pay at the rate of twenty per cent, per annum, upon the sum he has in his hands, from the date of such demand, if good cause be not shown to the contrary. And a copy of such demand produced into court, verified by affidavit, stating when and where the original was served upon the officer, shall be prima facie evidence of the date and service thereof.—Daw. Comp. 403. 17. Fees of Constables. In Civil Cases. For serving a warrant, summons, or subpoena - - - $0 31] For each additional copy ------ 31] For attending each trial in justice's court - - - - 31 ] For summoning a jury 62] For each cause tried by a justice ----- 31] For levying and advertising an attachment - - - 31] For levying a ca. sa. or execution, and advertising - - 31] For carrying a negro to and from jail, when under execution, per mile - -- -- -- -- 5 For keeping a horse, mare, mule, ass, or ox, per day - - 15f For each head of neat cattle, per day - 3] For each head of sheep, goats, or hogs, per day 2] On all sales made by them, six and a quarter per cent, on the amount. In Criminal Cases. For attending the grand jury, for each bill found, to be paid by the delinquent - - - - - - - $0 31] For serving a warrant - - - - - - -125 For carrying a prisoner to jail, per mile - 5 For keeping and maintaining a prisoner, before examination, not exceeding twenty-four hours ----- 31] For whipping a negro, by sentence of a court - - - 1 35 For executing one - - -4 06] Bailiffs shall receive from the county treasurer of each county, or clerk of the court, where there is no treasurer, one dollar per day in addition to their present fees, for every day they shall serve in attendance on grand juries.— Acts of 1831, p. 138. Chap. 4.] SHERIFFS. 193 CHAPTER IV. SHERIFFS. 1. The elections of sheriffs,* clerks of the superior and inferior courts, county surveyors, and coroners of the respective counties within this state, shall be held on the first Monday in January, 1814, and on the first Monday in January every second year thereafter, in each and every of said counties respectively.—Prin. Dig. 1*20. 2. All elections for county officers, to wit, the clerks of the supe- rior and inferior courts, sheriffs, coroners, and county surveyors, shall be by the citizens of the respective counties who are entitled by law to vote at elections for representatives or members of the legislature of this state ; and shall be opened, conducted, and closed in the same manner that elections are for members of the legislature of this state. —Prin. Dig. 118. 3. It shall be the duty of the officers elected as aforesaid, to make application to the executive for their respective commissions, within twenty days after their having been elected to either ofihe said offices.—Ib. 120; see next section. 4. The clerks of the superior and inferior courts, sheriffs, county surveyors, coroners, collectors, and receivers of tax-returns shall be b< und, in ten days after they are notified of the arrival of their com- mission, to take the oath, and give the security required by law.— Ib. 121. 5. The sheriffs, clerks of the superior and inferior courts, clerk court of ordinary, coroners, and county surveyors shall perform all the duties of their respective offices during the time intervening between the election and commissioning of their successors, with all the responsibilities to which they were liable previous to the said election.—Ib. 120. 6. When any office of sheriff, clerk of the superior or inferior court, tax-collector, or receiver of tax-returns in any of the counties of this state, may become vacant by death, resignation, or otherwise, it shall be the duty of the justices of the inferior court, or any two or more of them, to give notice at the door of the courthouse, and at three or more of the most public places of said county within which such vacancy may happen, twenty days previous to said election for filling said vacancy; which said vacancy shall be filled by persons entitled to vote for members of the legislature of said county ; and the person so elected shall be commissioned by the governor in con- formity with the laws now in force in this state on that subject; and the person so chosen shall continue in office no longer than his pre- decessor would have done.—Daw. Comp. 297. 7. When any two or more candidates for any of the aforesaid offices may have the highest and an equal number of votes, the pre- siding justices or superintendents at said election shall certify the * See Con. art. 3, s. 2. b b 194 SHERIFFS. [Part III. same to the justices of the inferior court of the county where such election may be held ; whose duty it shall be forthwith to advertise another election, giving notice as prescribed in the preceding sec- tion.—Daw. Com p. 297. 8. In the interim, from the time said vacancy may happen up to the time a successor may be elected and qualified, according to the foregoing provisions, (in cases where it may be necessary,) the jus* tices of the inferior court of the county where said vacancy may happen are hereby authorized to attend at the courthouse of said county, and appoint some fit and proper person to discharge the duties of said office until such vacancy may be filled according to the foregoing provisions, who shall be compelled to give bond and security, and take the usual oath.—Daw. Comp. 297. 9. The sheriffs of the several counties shall attend the superior and inferior courts in the respective counties when sitting, and by themselves or deputies execute throughout the counties all writs, warrants, precepts, and processes directed to them, and issued under the authority of any judge or justice of the said superior or inferior courts, or the clerks of either of the courts; and the said sheriffs or their deputies shall haVe power to command all necessary assistance* in the execution of their duty, and to appoint, as there shall be occa* sion, one or more deputies; and before any sheriff shall enter upon the duties of his appointment, and being commissioned by the gov- ernor, he shall be bound for the faithful performance of his duty by himself and his deputies before any of the said judgesf to the gov* ernor of the state for the time being, and to his successors in office, jointly and severally, with two good and sufficient securities, inhab- itants arid freeholders of the county, to be approved by the justices of the inferior court, or any threej of them, in the sum of twenty thousand dollars,§ and the said bond shall remain in the office of the clerk of the superior court of such county, and may be sued for by order of the said court for the satisfaction of the public or persons aggrieved by the misconduct of the sheriff or his deputy ; and the said sheriff shall take and subscribe the following oath before one of the judges of the superior, or justices of the inferior courts, and the same shall be entered on the minutes of the said court before such sheriff shall enter on the duties of his office, to wit: " I do solemnly * This clause giving the sheriffs an authority to command assistance, prescribes no penalty for disobedience; but the statute, 3 Edw. I. c. ix, (Schley's Dig. p. 82,)sub- jects the party refusing assistance to fine and imprisonment. i By act of 1803, explanatory of this section, it is declared that every judge of the superior, or a majority of the justices of the inferior courts of the respective counties throughout this state is and are, and, by intendment of law, ought to have been taken, held, deemed, and considered as competent in law to take the bonds or obligations of sheriffs, and to qualify them as by law directed.—Prin. Dig. 119. t By any two or more justices.—See Prin. Dig. 146. 4 The amount of the sheriff's bonds in the after named counties have, by various enactments, been reduced and established as follows: for the counties of Appling, Baker, Bryan, Bulloch, Camden, Campbell, Carrol, Early, Emanuel, Glynn, Irwin, Lee, Lowndes, Montgomery, Rabun, Randolph, and Scriven, ten thousand dollars ; for the counties of Dooly, Marion, Tattnall, and Union, five thousand dollars ; the county of Ware, four thousand dollars ; and the county of Wayne, one thousand dollars. Chap. 4.] SHERIFFS. 195 swear, (or affirm, as the case may be,) that I will faithfully execute all writs, warrants, precepts, and processes directed to me, as sheriff of the county of , and true returns make, and in ail things well and truly, and without malice or partiality, perform the duties of sheriff of ■ during my continuance in office, and take only my lawful fees: So help me God." And an oath to the same purport shall be taken by each of the deputies of the said sheriffs in like man- ner.—Prin. Dig. 216. 10. All officers, civil and military, in this state, shall take an oath to support the constitution of this state, and of the United States; and the form of said oath, so to be taken and subscribed, shall be forwarded with the dedimus to qualify the said officers, or be taken and subscribed at the time of receiving said commission.—Prin. Dig. 121. Said officers shall also swear that they are not the holders of public money.—See post, c. 11, s. 5. 11. In case of the death of either of the said sheriffs, the deputy or deputies shall continue in office, unless otherwise specially re- moved, and execute the same in the name of the deceased, until another sheriff be appointed and qualified ; and the defaults and mis- feasance in office of such deputy or deputies in the mean time, as well before as after the death of such sheriff, shall be adjudged a breach of the condition of the bond given as before directed, by the sheriff who appointed such deputy or deputies; and the executor or administrator of the deceased sheriff shall have the like remedy for the misconduct, or misfeasance, or default in office of such deputy or deputies, during such intervals, as he would be entitled to if the sheriff had continued in life, and in the execution of his office, until his sue- cessor was appointed and sworn.—Prin. Dig. 216, 217. This sec- tion, except that part which makes the sheriff liable for the acts of his deputy before his death, is superseded by the act of 1826.—See ante, sec. 8. 12. The sheriff of each county shall, at the expiration of his ap- pointment, turn over to the succeeding sheriffs, by indenture and schedule, all such writs and processes as shall remain in his hands unexecuted, who shall duly execute and return the same; and in case any sheriff shall neglect or refuse to turn over such process, in manner aforesaid, every such sheriff so neglecting or refusing shall be liable to make such satisfaction, by damages and costs to the party aggrieved, as he, she, or they shall sustain by reason of such neglect or refusal; and every sheriff, at the expiration of such his appointment, shall also deliver up to his successor the custody of the jail, and the bodies of such persons as shall be confined therein, with the precepts, writs, or causes of such detention ; and such succeeding sheriff shall be empowered and required to sell and carry into effect any levy made by his predecessors in office, in like manner as such sheriff could have done had he continued therein, and shall make titles to the purchasers for all the property sold under execution, and not conveyed by his predecessor.—Prin. Dig. 217; and see ante, p. 1, c. 8, s. 14. 13. The sheriffs of the several counties in this state shall have like 196 SHERIFFS. [Part III. powers and authorities; and they and their under-sheriffs, and jailers, constables, and other officers belonging to the court, shall be liable to all actions, suits, penalties, and disabilities whatsoever, which they or either of them may incur for, or on account of the escape of pris- oners,* or for, or in respect of any other matter or thing whatsoever, relating to or concerning their respective offices, in the same manner as they have heretofore been liable by laws in force in this state; and no sheriffs, under-sheriffs, deputy, or other sheriff's officer, shall act as an attorney at law, in his own name, or in the name of any other person, or be allowed to plead or practise in any of the courts of this state, during the time he is in such office.—Prin. Dig. 217. 14. The sheriff shall be liable either to an action on the case, or an attachment for contempt of court, at the option of the party, whenever it shall appear that he hath injured such party, either by false returns, or by neglecting to arrest the defendants, or to levy on his property, or to pay over to the plaintiff, or his attorney, the amount of any sales which shall be made under or by virtue of any execution, or any moneys collected by virtue thereof.—Prin. Dig. 217. But see next section. 15. It shall be the duty of the sheriffs, coroners, justices of the peace, constables, clerks of the superior and inferior courts, and at- torneys at law, in this state, upon application, to pay to the proper person or persons, his, her, or their attorney, any money or moneys they may have in their hands ; and if not promptly paid, the party or parties entitled thereto, his, her, or their attorney, may serve said officer with a written demand for the same ; and if not then paid, for such neglect or refusal the said officer shall be compelled to pay at the rate of twenty per cent, per annum upon the sum he has in his hands, from the date of such just demand, if good cause be not shown to the contrary. And a copy of said demand produced into court, verified by affidavit, stating when and where the original was served upon the officer, shall be prima facie evidence of the date and ser- vice thereof.—Daw. Comp, 403, 404; see next section. 16. If any sheriff, or his deputy, or under-sheriff, shall be guilty of extortion, or other malpractice in the execution of his office, upon complaint made, on oath, to the state's attorney or solicitor, it shall be the duty of such attorney or solicitor to exhibit a bill of indictment against the person so offending, who, upon conviction thereof, shall be fined by the court in treble the amount which he may have extorted from any person, which shall be applied, one moiety to the injured person, and the other moiety to the use of such county, and shall like- wise be removed from office, and suffer such other punishments as the law directs. Whenever the sheriff of any county within this state shall fail to make proper return of all writs, executions, and other process put into his hands, or shall fail or neglect to pay up all moneysf received on such execution, on his being required by the court * If, after judgment, a jailer or sheriff permits a debtor to escape, who is charged in execution for a certain sum, the debt immediately becomes his own, and he is compel- table by action of debt, being for a sum liquidated and ascertained, to satisfy the creditor his whole demand.—3 Black. 165. t See ante, sec. 15; and post, sec. 42, 43. Chap. 4.] SHERIFFS. 107 so to do, he shall be liable to an action as for contempt, and may be fined, imprisoned, or removed from office, in the manner prescribed by the constitution.—Prin. Dig. 217,218. 17. In all civil suits in the superior and inferior courts, a process is to be annexed and directed to the sheriff, requiring the defendant or defendants to appear at the court to which the same shall be made returnable, and shall be served on the defendant or defend- ants at least twenty days* before the return thereof, by delivering a copy of such petition and process to the defendant or defendants, or leaving such copy at his, her, or their most notorious place or places of residence. And if any process shall be delivered to the sheriff, or other officer whose duty it shall be to execute the same, so late that it cannot be served in manner aforesaid, such process shall not be executed, but the officer shall return the same with the truth of the case.—rrin. Dig. 200. IS. It shall not be necessary, as heretofore, for the sheriffs of this state to serve all writs and processes at common law twenty days before the sitting of the court to which the same may be made return- able, but the same may be served and returned seventeen days before the sitting of the court: Provided, nevertheless, that all writs and pro- cesses shall be copied and issued, as heretofore, twenty days before the sitting of the court, to which the same maybe made returnable. —Daw. Coinp. p. 408. 10. All process issued by the clerks of the said courts respectively, where the sheriff, who ought to execute the same, shall be in anywise interested, shall be directed to the coroner of such county, and served and returned by him in the same manner as is required of sheriffs.— Prin. 1 )ig. 200, 207. 20. In all cases which require the official acts of the sheriff, wherein he is or may be a party in the case, and no coroner can be obtained in tlie county to perform and execute the office of sheriff, that then and in that case it shall and may be lawful for any sheriff in an adjoining county to do and perform all manner of official acts that a coroner is authorized to do and perform in cases where a sheriff is a party intere.sted.—lb. 226. 21. When any civil process shall issue out of any of the said courts, whereby bail shall be required to be taken in manner aforesaid of any person or persons to answer any action in any of the said courts, the sheriff, or other officer, shall take a bond,+ with one or more suffi- cient security or securities, for double the sum sworn to, and shall return such bond with the petition and process ; and in case the sheriff, or other officer, shall fail or neglect to take such bail, or the bail taken shall be deemed insufficient by the court, on exceptions taken thereto and entry thereof made at the first term, to which the siid petition and process shall be returned, such sheriff, or other officer, and his or their security or securities, in either of the said cases, shall be deemed and stand as special bail, and the plaintiff may pro- * Hut see next section, which limits to seventeen days, t Form of such bond, see ante, p. 2, c. 4, s. 62. 19S SHERIFFS. [Part III. ceed to judgment as against bail in other cases.* And in all cases where any defendant or defendants, of whom bail shall be required, shall refuse to give good and sufficient bail, it shall be the duty of such sheriff, or other officer, to commit such defendant or defendants to the common jail of the county; or if there should be no jail in the county, or the same shall be insufficient, it shall and may be lawful for the said sheriff, or other officer, to confine such defendant or defendants in some private house: Nevertheless,such person or per- sons shall be allowed all the benefits of appearance and defence as if he, she, or they were personally present, and shall not be discharged out of custody but by putting in bail, or by order of court; but see next two sections.—Prin. Dig. 208,209. 22. The sheriffs and lawful constables in any of the counties in this state that are not provided with a jail, be, and they are hereby authorized and required to convey persons arrested by them by virtue of a capias ad satisfaciendum, or other civil process which may require bail, to the jail of any adjoining county, and to deliver such person or persons to the keeper of such jail: Provided, the person or persons so arrested shall refuse or neglect to give such bail as the officer arresting may be authorized to require. And the keepers of such jail shall, and they are hereby authorized and required to receive into their care and custody any person or persons delivered to them as herein directed, and him or them safely keep until they are delivered from thence according to law, or by direction or request of the plaintiff, his agent, or attorney: Provided, that the plaintiff, his agent, or attorney shall give bond with sufficient security to the keeper of such jail, for the jail fees and weekly main- tenance of the person or persons so delivered to him for safe keep- ing.—Daw. Gomp. 201. 23. When, for want of a jail, or any other cause or causes, it shall or may become necessary to commit any person or persons from one county to the jail of another for offences against this state, the sheriff or jailer of said county shall, after the prisoner is discharged or con- victed, make out his account for jail fees, according to the law now in force, against the inferior court of said county in which the offence was committed, which account shall be approved of by a majority of the inferior court of the county in which said sheriff or jailer resides ; and it shall be the duty of the justices of the inferior court, against whom such account may be made out, immediately after it is presented, to order the treasurer of said county to pay the same out of any money not otherwise appropriated.—Acts 1833, 66. 24. Executions may be levied on the estate both real and personal of the defendant or defendants, or issue against the body of the de- fendant, at the option of the plaintiff; without the same being obliged to be renewed on the court roll from year to year, as heretofore practised. And when the defendant shall point out any property on which to levy the execution, being in the hands and possession of * If a sheriff or jailer suffers a prisoner who is taken upon mense process (that is, du- ring the pendency of a suit) to escape, he is liable to an action on the case.--3 Black. 185. Chap. 4.] SHERIFFS. 199 any person not a party to such judgment, the sheriff shall not levy thereon, but shall proceed to levy on such property as may be found in the hands and possession of the defendant, who shall nevertheless be at liberty to point out what part of his property he may think proper, which the sheriff shall be bound to take and sell first: Pro- virft d, the same is, in the opinion of the sheriff, sufficient to satisfy such judgment.—Prin. Dig. 222, 223. 25. Where any execution shall have issued, or may hereafter issue against the body of any defendant, and the same shall not have been satisfied, it shall be lawful for an execution to issue against the property of such defendant or defendants on the return of said exe- cut ion which had been issued against the body of the said defendant or defendants. And when an execution against the body of any defend- ant shall have been served, the party on whom the same might have been served shall be released: Provided, he, she, or they shall de- liver to the officer serving the same the property which shall, in the opinion of such officer, be sufficient to discharge the debt and all costs, and give sufficient security to the said officer that the property so delivered is bona fide the property of the defendant or defendants, and subject to the discharge of the said debt. In which case the officer shall return the execution so issued against the body of the defendant or defendants, and take out an execution against the prop- erty of such defendant or defendants, and proceed to advertise and sell the property so delivered up to satisfy such execution, as here- tofore practised.—Prin. Dig. 223. 27. Where it shall appear by the sheriff's return on any execution or executions, that the same has been paid by a security or securities, it shall be the duty of the clerk to make such entry in such docket- book, and such security or securities shall have the use and control of said execution for the purpose of remunerating him or themselves out of 'the principal for whom he or they stood security.—Prin. Dig. 222. 28. It shall and may be lawful for the plaintiff in any judgment or execution to sell or transfer the same by written assignment, or con- trol, and said sale or assignment shall not be considered a discharge or satisfaction of said execution, but the assignee may proceed to col- lect the same for his own use and benefit, in as full and ample a manner as the plaintiff could have done if no such transfer or assign- ment had been made; but nothing in this act shall be construed so as to authorize tho collection of any execution which may have been paid off by the defendant or his agent, and kept open for the purpose of defrauding other creditors.—Daw. Comp. 225. 29. When any sheriff or coroner shall levy an execution on prop- erty claimed by any person not a party to said execution, such person shall make oath to said property, and it shall be the duty of such sheriff or coroner to postpone the sale or future execution of the judg- ment until the next term of the court from which said execution issued: Provided, the said execution is or should be levied on personal property ; but should said execution be levied on real property, and the same should be claimed in manner aforesaid, then and in that case it 200 SHERIFFS. [Part III. shall be the duty of the officer making the levy upon real property to report the same, together with the execution and claim, to the next term of the superior court of the county in which the land so levied on shall lie; and the court to which such claim shall be reported shall cause the right of property to be decided on by a jury at the first term, unless special cause be shown to induce said court to continue the case for one term, and no longer : Provided, the person claiming such property, or his agent or attorney, shall give bond to the sheriff or coroner, as the case may be, with good and sufficient security, in a sum equal to double the amount of the property levied on, at a rea- sonable valuation, to be judged of by the levying officer, conditioned to pay the plaintiff all damages which the jury on the trial of the right of property may assess against him, in case it should appear that said claim was made for the purpose of delay.—Daw. Comp. 207 ; and see post, sec. 36. For the form of oath and claim bond, see ante, c. 2, sec. 56, 57, 58. 30. In all cases where execution shall issue illegally, and the per- son& against whom such execution may be shall make oath thereof, and shall state the causes of such illegality, such sheriff shall return the same to the next term of the court out of which the same issued, which court shall determine thereon at such term.—Clayton's Justice, 310. 31. No sales in future shall be made by sheriffs of property taken under execution, but on the first Tuesday in each month, and be- tween the hours of ten and three in the day ;* and it shall be the duty of the sheriff to give thirty days' notice in one of the public ga- zettes of the state of all sales of lands and other property executed by him, and also advertise the same in three of the most public places in the county where such sales are to be made, and shall give a full and complete description of the property to be sold, making known the name of the defendant and the person who may be in possession of the property, except horses, hogs, and cattle, which may be sold at any time by the consent of the defendant, and in which case it shall be his duty to give the plaintiff ten days' notice thereof, and also to advertise the same in three or more of the most public places in the county where such property may be, at least ten days before the sale.—Prin. Dig. 310, 311. But see next sec. 32. It shall be the duty of the sheriffs aforesaid to advertise their sales in some public gazette within the judicial circuit whene such sales are intended to be made: Provided, there is such a gazette within the same.f—Prin. Dig. 220. 33. The sheriff, or his lawful deputy for the time being, upon the receipt of any precept for summoning grand or petit jurors, shall cause the several persons whose names are written in the panel there- unto annexed, to be served with a summons at least ten days before * Time of sheriffs' and constables' sales extended from 10 o'clock A. M. to 4 o'clock P. M.—See Daw. Comp. act No. 568. t This section is repealed as to very many counties in this state, and is undergoing such a change every year, that reference must be had generally to the acts of the legislature for such changes. Chap. 4.] SHERIFFS. 201 the sitting of the court for which they are drawn and empannelled; which summons shall be in the following words, or words to that effect: " By virtue of the precept to me directed, you are hereby commanded to appear before the judge of the superior court, at the n<. f siipt rior court, to be held at the courthouse, in and for the county of , on the day of , at ten o'clock in the forenoon of that day, to be sworn on the grand jury (or as a juror for the trial of criminal causes then and there depending, as the case may be;) which shall be signed by the sheriff or his lawful deputy aforesaid, who shall make return of all such precepts, in each of which he shall set forth the names of all such persons as shall have been summoned by virtue of such writs or precepts, and the time when they were summoned, and also the names of the persons whom he may not have summoned, together with the reasons why they were not summoned, 011 pain of being fined by the court.—Prin. Dig. 215. ]£ 34. It shall hereafter be the duty of the sheriffs of the several counties in this state, when they levy any execution on land, to leave a written notice of said levy with the owner, if in the county, or ten- ant, if in possession of any, or transmit the same to him, her, or them, in live days after such levy. It shall not hereafter be lawful for any sheriff within this state to levy upon or sell any land which lies out of the county of which he is sheriff.—Prin. Dig. 220. 35. In all cases where a writ of execution from a justice's court shall have been levied on one or 'more slaves, and a claim to such slates shall have been interposed according to the laws in force for the time being, such execution and claim shall be returned to the next term of the superior or inferior court, whichever may first happen, of the county in which such execution was issued, and shall be there tried in the same manner as other claims which by law are or shall be returnable to those courts respectively.—Daw. Comp. 215. 3(1. In all cases where a levy is made on property which is claimed by a third person, and good and sufficient security is tendered by the party claiming the same, it shall be the duty of such sheriff, consta- hie, or coroner to take security for treble* the amount of the debt on which such execution is founded, for delivery of the property so levied on, at the time, of sale: {Provided the property so levied on should he found subject to such execution :) then and in that case it shall be the duty of the sheriff, coroner, or constable to leave the same in the possession of such claimant, and in case the said claimant or security shall fail to deliver the property at the time and place of sale agreeably to such bond, it shall be the duty of the officer taking the same to transfer such bond to the plaintiff in execution, and said bond shall he recoverable in any court of law or equity in this state having cog- nizance thereof.—Prin. Dig. 224. 37. All bonds taken by sheriffs of this state, or their deputies, or coroners, or constables, from defendants in execution, for the delivery of property on the day of sale, or at any other time, which they may have levied on by virtue of any fi. fa. or other legal process from any * But see ante, sec. 29, which is a subsequent enactment. C C 202- SHERIFFS. [Part III. court, are legal and valid in law, and recoverable in any court in this state having jurisdiction thereof. And bonds so taken shall in no case prejudice or affect the rights of plaintiffs in execution, but shall relate to and have effect alone between the sheriffs, their deputies, the coro- ners, and the constables, and defendants by whom given; and the sheriff shall in no case excuse himself for not having made the money on any execution by having taken such bond, but shall be liable to be ruled as now prescribed by law.—Daw. Comp. 409. 36. It shall be the duty of purchasers of personal property under the encumbrance of mortgage or mortgages, at any sheriff's, coroner s, or constable's sale, to give bond and security to the said sheriff, coro- ner, or constable, in double the value of the property so sold, (of which the officer selling shall be the judge,) conditioned not to move said property out of said state, and deliver up the same to the mort- gagee, his heirs or assigns, on demand made after foreclosure of said mortgage or mortgages : Provided, the mortgagee, his agent, or attor- ney, shall tender an affidavit previous to the sale thereof, to the officer selling said property, stating that he, she, or they are just and bona fide mortgagees thereof, and that he, she, or they apprehend the loss of said property unless bond be given as aforesaid.—See Acts 1830, 119. 39. And when any person shall purchase at any sheriff's, corner's, or constable's sale, a life estate, or an estate for a term of years in personal property, it shall be the duty of said sheriff, coroner, or constable to require of said purchaser bond and security as afore- said for the delivery of said property to the party entitled in remainder: Provided, the same i3 required by said party, his agent, or attorney, who shall make affidavit of their right to said property, which shall be tendered to the officer selling previous to sale, which bonds when taken shall be filed in the clerk's office of the superior court of the county where said sale is made, subject to be sued on, for the benefit and use of the said party, whenever the particular estate is determined, which said court shall have power, on sufficient cause shown, to compel said obligor to give additional security, from time to time, as justice may require, on ten days' previous notice being given. And on failure of said purchaser to give bond and security as aforesaid, it shall be the duty of said sheriff, coroner, or constable to resell the said property, at the risk and loss of such purchaser.—lb. 120. 40. The several sheriffs within this state, who have or may here- after have in possession any execution or executions issued by the treasurer* of this state against any tax-collector, shall, and they are hereby required to levy the same, and collect the amount or amounts thereof, in the same manner as pointed out by law for the collection of executions issuing out of the superior or inferior courts of this state.—Prin. Dig. 502. 41. The comptroller-general is authorized and directed to issue his execution against defaulting tax-collectors, directed to all and * Now the comptroller-general.—See Daw. Comp. 296. Chap. 4.] SHERIFFS. 203 singular the sheriffs of this state, and transmit it to the sheriff of the county for which the collector is appointed, who is required to levy the same immediately, if there is any properly of the defendant's in the county, if not, to transmit the same to any other county where the defendants, or either of them, may have property ; and the sheriff of such other county is in like manner to levy the same, and no execution issued by the comptroller-general, in manner herein pre- scribed, shall be stayed by reason of the death of the said collector or his securities, as to the sum due, or the legality of the execution.— l'rin. Dig. 498. 42. If any sheriff as aforesaid shall fail to levy and collect the amount of any execution, so issued as aforesaid, or to account with or pay over the same to the treasurer when thereunto required, then and in that case it shall be the duty of the attorney or solicitor general within the several judicial circuits of this state, at the request of the treasurer, to apply to the judge of the superior court, during the session of said superior court or in vacation, of the district wherein such delinquent sheriff may reside, for a rule against such delinquent sheriff, to show cause why an attachment should not be obtained against him on the usual term for neglect of duty.—Prin. Dig. 502. 43. It shall be the duty of the judges of the superior courts, on application, to grant such rule and make such order as in their opinion is best calculated to compel the payment of any moneys collected or to be collected by sheriffs as aforesaid. 44. All moneys collected under and by virtue of this act shall be paid into the hands of the attorney or solicitor-general appointed for the circuit, where the said moneys have or shall be collected, and be by them respectively transmitted to the treasurer of this state.— Prin. Dig. 502, 503. 45. In all cases where the comptroller-general shall issue execu- tions against delinquent tax-collectors, it shall be lawful for any sheriff into whose hands such execution or executions may be placed, to collect from such delinquent tax-collector two and a half per cent, on, and in addition to, the amount of such execution or executions, whicli shall be full compensation for the trouble and expense of such sheriff or sheriffs in collecting and paying over at the treasury the amount of such execution or executions as may be placed in their hands as aforesaid: Provided, that every sheriff who shall receive said per cent, shall be liable to refund the same to the collector from whom it may be received, if he does not return the execution and pay over the money collected thereon for the state at the treasury on or before the day he may be required so to do by said execution. —Prin. Dig. 50G. 4G. It shall be the duty of the sheriffs of the respective counties of this state, and they are hereby authorized and required, when a sale shall have taken place, under and by virtue of an execution issued by the comptroller-general of this state, under the directions of this act against any defaulting tax-collector, and the property of such defaulting tax-collector shall have been sold for moneys due the state, to deliver the possession of the property so sold to the pur- 204 SHERIFFS. [Part III. chaser or purchasers thereof; and if the said defaulter, or any other person or persons who may be in possession ^of the said property so sold, shall refuse to deliver up the same, upon being called on by the sheriff of the county for that purpose, it shall be the duty of such sheriff, and he is hereby required to dispossess the said defaulting tax-collector, or any other person or persons who may be in pos- session of the property sold, and deliver the same to the purchaser or purchasers thereof, their agent or attorney, for which purpose, if needful, he shall call on the commanding officer of the militia of the county where the property is situated to render the necessary assistauce, who is hereby required to order out the same.—Prin. Dig. 499. 47. It shall be the duty of the sheriffs in each county to receive from the tax-collector therein, all executions that may be tendered to him for taxes, and to levy and collect the same, and to make due returns to the said collector, within thirty days after the receipt of each execution, where personal property is levied on, and where it shall be real estate, sixty days ; for which the said sheriff shall receive such pay as by law is directed in cases of tax-collectors' executions, levies, and sales ; and in case of default or neglect of duty, the justices of each inferior court shall, from time to time, on the application of the tax-collector, make such rules and regulations, as shall cause a due execution of the collection of the general and county tax in each county as aforesaid.—Prin. Dig. 499. 48. All sheriffs, coroners, and clerks of any of the courts of this state, shall at any and all times be subject to the order and rule of said courts, after they 1iave retired from their respective offices, in such cases and in like manner as they would have been had they remained in office.—Prin. Dig. 121. 49. It shall be lawful for sheriffs, in all cases where a bail or criminal process is placed in their hands, and the person against whom it may be is moving about from one county to another, for the said sheriff or his deputy to follow the said person or persons into any county in this state, and serve the said process.—Prin. Dig. 228. 50. When any person who is about to commence an action or suit at law or in equity for the recovery of negroes or other personal property, such person, his agent, or attorney, shall make affidavit* that he hath reason to apprehend that the said negroes or other per- sonal property have been, or will be eloigned or removed away, or will not be forthcoming to answer the judgment, execution, or decree that shall be made in the case, and shall also state on his affidavit the value of the same and the amount of hire claimed, if any, and add that he, she, or they do verily and bona fide claim the said negroes, or other personal property, or some valuable interest therein: a copy of such affidavit shall be annexed to the petition, bill, or other process, and the original affidavit filed in the court wffiere such pro- cess issues; and it shall be the duty of the sheriff, his deputy, or other lawful officer serving such petition, bill, or other process, to take a * For the form of such affidavit, see post, sec. 63. Chap. 4.] SHERIFFS. 205 recognisance, with good security, in double the amount sworn to,* h>r the forthcoming of such negroes or other personal property, to ai^wer such judgment, execution, or decree as may be issued or rendered in the case, and such security shall be bound for the pay- tneut of the eventual condemnation money, and liable to execution in the Mime manner as securities upon appeals; and when such affidavit shall he made during the pendency of any process, a copy thereof, and of the process or subpoena, shall be served in like manner by the sherilf, or his deputy, or other lawful officer, and the like security taken; and upon the defendant refusing to give such security, the property shall be seized and taken by the sheriff or other lawful ollicer, and delivered over to the plaintiff or complainant, his agent, or attorney, entering into a like recognisance with security; and if such property is not produced or forthcoming, to be seized and taken by such sherilf or other lawful officer, the defendant or defendants shall be committed to jail, to be kept in close and safe custody, until the same is produced, or until he, she, or they shall enter security for the eventual condemnation money, in the nature of security upon appeal.—Daw. Comp. 20S. 51. The shares or stock owned by any person in any of the banks or other corporations in this state, shall be subject to be sold by the sheriff or his deputy under execution.—Daw. Comp. 71. 52. Wl ien any sheriff or his deputy shall have placed in his hands any execution against any person who owns any stock or shares in any of the banks or corporations of this state, it shall be lawful, and he is hereby required, on application of the plaintiff, his agent, or attorney, to endorse on said execution a levy of the number of shares belonging to the defendant, and after advertising the same agreeably to the law regulating sheriffs' sales, shall thereafter pro- ceed to sell the said shares or stock : Provided, alio ays, that he shall set up one share at a time, and shall sell no more than is sufficient to satisfy the amount of executions then in his hands.—Daw. Comp. 71. 5d. When any constable shall have any execution placed in his hands, against any person who is the owner of any shares or stock in any bank or other corporation in this state, it shall be lawful, and lie is hereby required, on the application of the plaintiff, his agent, or attorney, to endorse a levy on said execution or executions in like manner; and it shall be his duty to make return of the same to the sherilf of the county in which he lives, which said sheriff shall proceed to sell, as pointed out in the preceding section.—Daw. Comp. 71. 5 4. When the sheriff, or his deputy, shall sell any shares in any bank or other corporation in this state, he shall give a certificate of such sale to the purchaser.—Daw. Comp. 71. 55. When any sheriff, coroner, constable, town or city marshal, or other ollicer of this state, has several executions in his hands at the same time against the same defendant, it shall not be lawful for such officer to detain the costs on any younger judgments to the pre- judice of those of older date, except in a case where a younger judg- ment creditor shall, previous to older ones, point out property to the * See the form, post, sec. 64. 206 SHERIFFS. [Part III. officer, then it may and shall be lawful for the officer to retain the levy and advertising costs, and no more, on such younger judgment.— Da w. Comp. 211. 56. In all cases where execution shall be issued by tax collectors, and levied by any sherifl e,r his deputy, or any constable, on perish- able property, the said sheriff or constable shall advertise the same in three of the most public places in said district only, and be allowed the same fees as constables are allowed for levying executions.— Daw. Comp. 422. 57. Whenever any execution or executions against a public debtor are placed in the hands of any sheriff or his deputy for collection, it shall be his duty to make a return thbreon to the attorney or solicitor general of the circuit in which he lives within three months, and on failure to do so, the attorney or solicitor general is hereby re- quired to obtain a rule, at the superior court next after the expiration of the three months, against the said sheriff or his deputy, requiring him to show cause why the money has not been collected, and if collected, why it has not been paid over; and should it appear that the money has been collected and detained longer than the time pre- scribed by law, then the sheriff or his deputy shall pay twenty per cent, per annum on the amount so detained, after a written demand by the solicitor or attorney.—Daw. Comp. 296. For the duty of sheriffs in collecting treasury executions against banks for their tax, see post, chap. II, s. 44. 58. It shall be the duty of the sheriff of each county in this state, either by himself or deputy, to attend at the courthouse of their respective counties, on each and every day of holding courts of ordi- nary, for the purpose of opening and adjourning said courts, unless such sheriff shall procure some constable of such county to perform such duty ; and in case the sheriff shall at any time fail to comply with the requisitions of this act, it shall and may be lawful for the clerk of said court to open and adjourn such court.—Daw. Comp. 211. 59. When any sheriff or coroner shall sell any real estate by virtue of, and under the authority of any execution, it shall be the duty of the sheriff or coroner, (as the case may be,) upon application, to put the purchaser, his or her agent or attorney, in possession of the real estate sold: Provided, that this act shall not authorize the officer making the sale to turn out any other person than the defen- dant in execution, his heirs or their tenants, if such other person were in possession at the term of the rendition of the judgment, or if such person has acquired such possession under the judgment of a court of competent jurisdiction, or claim under the person or per- sons acquiring such right by the judgment of such court.—Daw. Comp. 405. 60. Sheriffs are bound to keep execution dockets, wherein they shall enter all executions delivered to them, and the dates of such de- livery, together with their actings and doings thereon, and file the same in the clerk's office out of which such executions may have issued, on or before the first day of the court to which they may be returnable, which dockets shall remain in said offices, subject to the inspection of all persons concerned therein.—Prin. Dig. 222. Chap. 4.] sheriffs. 207 61. On the representation of two-thirds of the justices of the infe- rior court, and of the county, or by sentence of impeachment, his excellency the governor be, and he is hereby authorized to remove any of the aforesaid sheriffs from office ; and lie shall and may re- move from office any coroner or county surveyor, on like represen- tation of two-thirds of the justices of the inferior court and of the county ; the governor shall and may also remove any of the aforesaid clerks, county surveyors, or coroners from office on conviction of the offender or offenders for malpractice in office.—Prin. Dig. 118. 62. Fees of Sheriffs. In Civil Cases. For serving a copy of a process and returning the original, $1 87| If more than one defendant, for each additional copy served, - 62|- Levying an execution on the body or property, - 1 87£ Summoning each witness, ----- 62i On all sums where the execution does not exceed 64 dollars and 2S cents, (157.) six and a quarter per centum on the amount of property sold; on all sums above 64 dol- lars and 28 cents, and where the execution does not exceed 428 dollars and 56 cents, (1007.) three and one fourth per centum; on all sums where the execution exceeds 428 dollars and 56 cents, one and a fourth per centum; but no commission shall be demanded where the property is not actually sold. Making out and signing a bill of sale of other property, 1 25 Note. — The sheriff shall charge but for one bill of sale, where one will cover the property, unless the purchaser desires more. Conducting a debtor under confinement before a judge or court, - - - - - - - - - I 25 Summoning a jury to try a caveat, and attendance, - I 25 {Summoning a special jury, and all other services attend- ing trial of appeal, - - - - - - -125 For a bail bond, - - - - - - - -125 Making out and executing titles to land, - - - 3 75 If wrote by the purchaser, - - - - - -125 In Criminal Cases. For recommitting any person, when a habeas corpus is brought to his relief, - - - - - 1 25 Summoning a jcry, - - - . - - -125 On every copy of a mittimus, ----- 31} For every mile a prisoner shall be removed on a habeas corpus, - - - 31} Tor removing a prisoner by habeas corpus, when no mile- age is paid, per day, 125 208 SHERIFFS. [Part III. Executing a criminal, - ... $X0 00 Attending a person taken by a warrant to the judge's chambers, 933 Conducting a prisoner before a judge or court to and from jail. 1 25 Executing a warrant of escape, 933 Each mile to serve the same, 4.3 Executing and returning a bench-warrant, - - - 1 25 Each mile to serve the same. - 43 Apprehending a person suspected, if committed or held to bail, 1 25 For each person, not exceeding two, who may be employed to guard a prisoner to jail, per day, - - - - 1 25 Note.—Sheriffs are entitled to various other fees not enumerated in the above table, but which are contained in the body of the statutes that point out their duties, and will therefore be easily referred to. 63. Form of the Oath of a Person commencing a Suit for Personul Property, to compel the Defendant to give Security for the forthcoming of the same, at the termination of the Suit. Georgia, ) Before me, Isaac T. Cashing, a justice of the Baldwin County. ) peace for said county, personally came David Honesty, and being duly sworn, saith, that he is about to commence an action or suit against one Samuel Wrong, for the recovery of two slaves, to wit, Dave and Tom, and that he has reason to appre- hend that said negroes (or other personal property, as the case may he) have been or will be eloigned, or removed away, or will not be forthcoming (state which of these be fhe fact) to answer the judg- ment, execution, or decree that shall be made in the case; and that said negroes are of the value of four hundred dollars each, and the hire of the same for two years, at one hundred dollars each per year, (if it be any other personal property, state the value thereof,) and this deponent does verily and bona fide claim the said, (here name the property,) or some valuable interest therein. Sworn to and subscribed before me, David Honesty. this tenth day of August, eighteen hun- dred and thirty-^ne. I. T. Cushing, J. P. 64. Form of the Band for the forthcoming of Property at the termi• nation of the Suit. Georgia, 1 Know all men by these presents, that we, Baldwin County. ) Samuel Wrong and John Paywell, are held and firmly bound to Isaac Takecare, sheriff of said county, in the just and full sum of two thousand# dollars; to the true payment of which, we bind ourselves, our heirs, executors, administrators, and assigns, jointly and severally, firmly by these presents. Sealed %ith our seals, and dated this tenth day of August, eighteen hundred and thirty-five. * It must be in double the amount of the value of the property and hire, (if any.) ("hap. 5.] JAILERS. 209 The condition of the above bond or obligation is such, that where- as the said Isaac Takecare hath this day served a petition, bill, or other process, upon Samuel Wrong, at the instance of David Honesty, for the recovery of two negroes, Dave and Tom, and the hire of the same for two years, (or here state the property in dispute.) Now, should the said Samuel Wrong, or John Paywell for him, cause the said ingrocs, (or other property,) to be forthcoming to answer such judgment, execution, Or decree as may be issued or rendered in the above named case, then this bond or obligation to be void, else to remain in full force and virtue. Test, Peter Notice. Samuel Wrong. (L. S.) John Paywell. (L. $.) CHAPTER Y. JAILERS. 1. The jail itself is the state's, but the keeping thereof is incident to the office of sheriff, and inseparable from it.—2 Inst. 559. A jailer in fact is as much punishable for a misdemeanor as if he were a rightful jailer.—2 Hawk. 134. 2. Judge Blackstone says, jailers are the servants of the sheriffs, and he must be responsible for their conduct.— 1 Black. Com. 346. All felons should be imprisoned in the common jail; and if a jailer refuse to receive a felon, or take anything for receiving him, he shall be punished.—Dalt. c. 170. 3. The county jail is the prison for malefactors ; but prisoners for debt, where escape lies against the sheriff for their escaping, may be kept in what place the sheriff pleases.—L. Raym. 136. Query, whether this is not altered by our insolvent laws ?—Clay. Jus. 208. 4. It seemeth generally in all cases where a man is committed to prison, especially if it be for felony, or upon an execution, or but for a trespass, or other offence, every jailer ought to keep such prisoner in safe and close custody ; safe, that he cannot escape, and close, without conference with others, or intelligence of things abroad. —Dalt. c. 170. 5. And therefore if the jailer shall license his prisoner to go abroad for a time, and thus to come again, or to go abroad with a keeper, though he come back again, yet these are escapes.— Dalt. c. 170. 0. And hereupon it is lawful for the jailer to hamper a felon with irons to prevent his escape.—1 H. H. 601 ; Dalt. c. 170. And it is said that a jailer is no way punishable for keeping even a debtor in irons.*—2 Hawk. 152. But the learned editor of Hale's History observes, that this liberty, even in the case of a felon, (much more in * No jailer shall put any person into irons, unless he is confined for a capital offence, and it is so expressed in the warrant.—Prin. Dig. 346. i> d 210 JAILERS. [Part III, the case of a prisoner for debt,) can only be intended where the officer has just reason to fear an escape, as where the prisoner is unruly, or makes an attempt to that purpose ; but otherwise, notwithstanding the common practice of jailers, it seems altogether unwarrantable and contrary to the mildness and humanity of the laws of the commonwealth, by which jailers are forbidden to put their prisoners to any pain or torment. And Lord Coke, 2 Jnst. 381, is express, that by the common law it might not be done. And if a jailer keep the prisoner more strictly than he ought of right, whereof the pris- oner dieth, this is felony in the jailer by the common law ; and this is the cause that, if a prisoner die in jail, the coroner ought to sit upon him, and if the death was owing to cruel and oppressive usage on the part of the jailer, or any officer of his, it will be deemed wilful mur- der in the person guilty of such duress.—3 Inst. 91 ; Fost. 321, 322. 7. But if a criminal, endeavouring to break the jail, assault his jailer, he may be lawfully killed by him in the affray.— 1 Hawk. 71; 1 H. H. 490. For jailers and their officers are under the same special protection that other ministers of justice are. And there- fore, if in the necessary discharge of their duty they meet with re- sistance, whether from prisoners in civil or criminal suits, or from others in behalf of such prisoners, they are not obliged to retreat as far as they can with safety, but may freely, and without retreating, repel force with force. And if the party so resisting happen to be killed, this, on the part of the jailer, or his officer, or any person coming in aid of him, will be justifiable homicide. On the other hand, if the jailer, or his officer, or any person coming in aid of him, shall fall in the conflict, this will amount to wilful murder in all persons joining in such resistance. It is homicide committed in defiance of the justice of the commonwealth.—Fost. 321 ; and see on sec. 12, ante, chap. 4, p. 1. 8. The jailer being an officer whose attendance is always neces- sary on the court, he should always be careful to certify to the courts to which the prisoner stands committed, the mittimus, or warrant of commitment, in order that the person accused may receive his trial, and, if not found guilty, may be discharged. 9. And if a jailer detains a prisoner in jail after his acquittal, unless it be for his fees, (not for meat, drink, or lodging.) this is an unlawful imprisonment.—2 Inst. 53. 10. And a jailer must not disobey a writ of habeas corpus for want of his fees ; but the court will not turn the prisoner over till the jailer be paid all his fees.—2 Haw. 151. 11. The principal jailer is only finable for the voluntary escape of a felon suffered by his deputy ; for no man shall suffer capitally for any crime, but he who is actually guilty of it.—2 Hawk. 135. 12. But for a negligent escape suffered by his bailiff, the sheriff is as much liable to answer as if he had actually suffered it him- self; and the court may charge either the sheriff or bailiff for it. And if a deputy jailer be not sufficient to answer a negligent escape, his principal must answer for him.—2 Hawk. 135. 13. But it will not be felony if the prisoner be permitted to escape when there was no felony committed.—2 Inst. 592. ("Imp. G.] CORONERS. 211 11. All sheriffs, on appointing- a keeper of the jail, shall require siillicient security of him or them ; and such persons appointed, shall, before he enters on the duties of his or their office, take and suhxcrihe the following oath, before some one of the justices of the inferior court of the county, to wit:—I, A. B., do solemnly swear or affirm, (as the case may be,) that I will well and truly do and perform all and singular the duties of jailer for the county of , and that I will humanely treat all criminals who may be brought to jail, of which I am the keeper, and not suffer them to escape by any negligence or inattention of mine : So help me God. —Prin. Dig. 120. Fees of Jailers. Receiving a prisoner or debtor, - - - - $0 62i Turning a key, or discharging a prisoner in virtue of a habeas corpus, or by order of the court, judge, or justice, 62i Dieting a prisoner, per day, allowing two pounds of bread, one and a half pounds of beef, or one pound of pork, with a sufficiency of water, all wholesome provisions, - - 46| Turning key on commitment of any person, - 62^ Dieting negroes, allowing one quart ofrice or corn meal per day, 15f CHAPTER tl. CORONERS. 1. Coroners are elected at the same time and in the same manner as the sheriffs; are commissioned, hold their commissions, and are subject to removal from office, in like manner as sheriffs.—See Sheriffs. 2. lie ought to execute his office in person, for he is a judicial offi- cer.—Wood's Inst. 83. 3. By Holt, C. J. the coroner need not go ex officio to take the inquest, but ought to be sent for, and that when the body is fresh ; and to bury the body before, or without sending for the coroner, is a misdemeanor.—Salk. 377; 2 Hawk. (6. ed.) 78, note (3.) 4. The judicial office of a coroner being confined to the taking of inquisitions on the death of persons who came to a violent or unnatu- r.il death, and that upon view of the body alone ; it is a matter pun- ishable by amercement to let a body lie till putrefaction, without giving him notice.—Wood. b. 4, ch. 1, p. 491; 2 H. H. Summary, 170. 5. But if a prisoner in jail dies a natural death, yet, regularly, the jailer ought to send for the coroner to inquire, because it may be pos- siblv presumed that the prisoner died by the ill usage of the jailer.— 2 II. II. 57 ; 2 Hawk. (6 ed.) 77. G. For if a prisoner, by the ill usage of the jailer, comes to an un« 212 CORONERS. [Part III. timely death, it is murder in the jailer, and the law implies malice in respect of the cruelty. And this is the cause, (says Lord Coke,) that if any man dieth in prison, the coroner ought to sit upon his body, to the end it may be inquired of, whether he came to his death by the dures of the jailer or otherwise ; and this sitting of the coroner con- tinueth to this day.—3 Inst. 52. 7. A coroner may lawfully, within convenient time, as the space of fourteen days after the death, take up a dead body out of the grave, in order to view it, not only for the taking of an inquest where none hath been taken before, but also for taking of a good one, where an insufficient one hath been taken before.—2 Hawk. 78. 8. So he may dig up the body, if the first inquisition be quashed. —Stra. 533. But not without leave of the court.—Stra. 167. And the justices shall exercise their discretion according to the length of time the body has lain, and the circumstances of the case.—Salk. 377; Stra. 22. 9. If there is danger of infection from digging up the body, or if the body is drowned and cannot be found, or if it has lain so long be- fore the coroner is called in to take the inquest that no assistance can be had from the view, he ought not to proceed. In such cases, the inquiry may be by witnesses of the felony, by justices of the peace, justices of oyer and terminer, or in a court by presentment of the grand jury.—See Wood's Inst. 491; 2 Hawk. 78; 2 H. H. 59. 10. Where the body had been buried five years, and the scull was dug up, which the coroner assured the jury was the scull of the de- ceased, and the inquest was taken upon that, the court refused to file the inquisition.—Stra. 22, R. v. Bond. 11. It is not necessary that the inquisition should be taken in the very same place where the body was viewed ; for it hath been re- solved, that an inquisition taken at D, on the view of a body lying dead at L, may be good.—2 Hawk. 18. 12. A coroner hath no power, either by common law or statute, to inquire of any accessories after* the fact to the felony; but of acces- sories before he hath such power.—lb. 13. If the coroner omits to take an inquisition upon an untimely death, it may be done by justices, &c.; but it must be done openly, and if it be done secretly it may be quashed.—1 Bur. 17. 14. For mismanagement in the coroner, &c, the filing of the in- quisition may be stopped, or the coroner may be ordered to attend and amend his inquisition.—Wood's Inst. 492. 15. If he hath been guilty of corruption or bribery in taking the inquisition, a melius inquirendum may be awarded to special com- missioners to take a new one, who shall proceed on the testimony of witnesses, not on view of the body. If the inquisition is good, he that is suspected to have committed the felony may be tried upon the inquisition, as well as upon an indictment.—Wood's Inst. 492. 16. If the constables make not a return, or the jurors returned ap- pear not, their defaults are to be returned to the coroner; and the * But see sec. 29. Chap. G.] CORONERS. 213 constable or jurors in default shall be amerced by the court having cognizance of the proceedings.—2 H. H. 59. But see post, sec. 23, 21. 17. The jury appearing is to be sworn and charged by the coro- nor to inquire, upon the view of the body, how the party came by his death.—2 II. II. 60. For the import of such charge see sec. 26, post. IS. The opinion formerly held that a coroner's inquest was not traversable, is now generally exploded.—1 Bac. Abr. Coron. D; 2 Hawk. 81. 11). Every person who shall be elected to the office of coroner shall, before he enters upon the execution of the duties of his office, take the following oath or affirmation, to wit: " I, A. B., coroner of the county of do solemnly swear (or affirm, as the case may be,) that I will well and truly serve the state of Georgia, in the office of cor- oner of the said county; that I will, to the utmost of my power, faith- fully and truly execute, or cause to be executed, all writs and pre- cepts to me directed, and which shall come to my hands, and will faithfully and truly return the same, according to the best of my knowledge, skill, and judgment; that I will in no case knowingly use or exercise the said office illegally, corruptly, or unjustly ; that I will neither directly or indirectly, by any means or device, or under any colour or pretence whatsoever, accept, receive, take, use, or en- joy, or consent to the accepting, using, receiving, taking, or enjoying any fee or reward, of or from any person or persons whomsoever, for the summoning, empannelling, or returning of any inquest, jury, or tales, to or in any court of this state, or between party and party, other than such fees or rewards as are or shall be allowed by law for the same, and that I will not, directly or indirectly, exact or de- niand any manner of fee or reward, from any person or persons, for serving, executing, or returning any writ, precept, or process, execu- tion or inquisition, or for any other service in my said office, other- wise than such fees or rewards as are or shall be allowed for the same by law, but that I will in all cases and things touching the duties of the said office demean myself honestly, fairly, and impartially, ac- cording to the best of my knowledge, skill, and judgment."—Daw. (Jump. 101. 20. Every coroner shall, upon view of the body, take inquests of deaths in prisons : Provided, such death happen suddenly or violently and without an attending physician, unless such death be attended by suspicious circumstances : and of all violent, sudden, or casual deaths within his county, and the manner of such deaths.—Daw. Comp. 404. 21. The coroner, as soon as he shall have notice or be certified of any death as aforesaid, shall make out a precept, directed to any constable of the county where the dead body is found, or lying, re- quiring him to summon a jury of inquest, composed of good and law- ful men, from the captain's district within which the said body may be reported to lie, or from an adjoining district of said county if ne- cessary, to appear before him at the time and place in such pre- 214 CORONERS, [Part III. cept mentioned and contained, which precept shall be in form fol- lowing :— County, to wit: The State of Georgia to any lawful consta- bles of , of the said county. You are required immediately, upon sight hereof, to summon good and lawful men from district, or an adjoining district if necessary, of the county of , to be and appear before me, A. B., coroner of the county aforesaid, at , in the said district of said county, on the day, of , at the house of , in the noon of the same day, then and there to inquire of, do, and execute all such things as, on behalf of the state, shall be law. fully given them in charge, touching the death of , (or a per- son unknown, as the case may be,) and be you then and there to cer- tify what you shall have done in the premises, and further to do and execute what in behalf of the said state shall be then and there en- joined upon you. Given under my hand and seal at , in the said county, this day of , in the year of our Lord . Daw. Comp. 404. 22. The constable to whom such precept shall be directed and delivered shall forthwith execute the same, and shall repair to the place at the time mentioned therein, and make return of the precept, with his proceedings thereon, to the coroner.—lb. 23. It shall be the duty of the coroner to certify and return every constable who shall neglect or refuse to execute the services and du- ties, or any of them, by this act prescribed, to the next inferior court to be held in and for the county, which court, unless a reasonable ex- cuse be offered, shall set such fine upon the constable offending as they shall think fit and reasonable, not exceeding fifty dollars.—lb. 24. When any juror shall be summoned as aforesaid, and shall fail to attend, that then and in that case the said defaulting juror shall forfeit and pay a sum not exceeding ten dollars, to be levied by execution, under the hand and seal of said coroner, unless such de- faulting juror shall show good and sufficient cause of excuse, within ten days after said default, to be made on oath before any justice of the peace, and filed in the office of the clerk of the inferior court, the merits of which excuse shall be determined by the next inferior court thereafter.—Daw. Comp. 404. 25. The coroner shall swear, or affirm, twelve of the said jurors who shall appear, seven of whom shall be competent to return a verdict, and shall administer to the foreman of the inquest an oath, or affirmation, upon view of the body, in form following:—You, as foreman of this inquest, shall diligently inquire, and true present- ment make, on behalf of the state of Georgia, how, and in what manner , (or a person deceased unknown, as the case may be,) here lying dead, came to his death, and of such other matters re- lating to the same as shall be lawfully required of you, according to evidence. And then shall swear, or affirm, by three at a time, in order, the rest of the jurors, in form following:—Such oath, or affirmation, as the foreman of this inquest hath taken on his part, Chap. G.] CORONERS. 215 you. and every of you, shall well and truly observe, and keep on \our part.—lb. iit». When the jurors are sworn or affirmed as aforesaid, the coroner shall charge them on their oath or affirmation to declare of the death of the person, whether he or she died by murder, man- slaughter, misadventure, misfortune, accident, or otherwise,and who, and u hen,and by what means, and in what manner; and if by murder, who were principals, and who were accessories ; and if by man- slaughter, who were the perpetrators; and with what instrument the stroke or wound was in either case given, and so of all prevail- ii g circumstances which may come by presumption, and if by mis- alventure, misfortune, accident, or otherwise, whether by the act uf God or man. and whether by hurt, fall, stroke, drowning, or in any other way ; to inquire what persons were present at the death, from whence the deceased came, and who he or she was, and his or her parents relations, or neighbours; who were the finders of the body; whether killed in the same place where he or she was found, or if i Isewhere, by whom, and how he or she was brodght from thence, and of all circumstances relating to the said death ; and if he or she died imprison, whether by hard usage there or not, and if so, how and by whom ; and if he or she put an end to his or her own life, then to inquire of the manner, means, or instrument, and of all circumstances concerning it.—Daw. Comp. 404, 405. 27. It shall be lawful for every coroner to issue process for wit- nesses, commanding them to come before him to be exanmied, and to declare their knowledge concerning the matter in question ; and the said coroner shall administer to every witness an oath, or affirmation, in form following :—You solemnly swear (or affirm) that the evidence which you shall give this inquest, on behalf of the state, touching the death of C. D., (or a person unknown, as the case is.) shall be the truth, the whole truth, and nothing but the truth. Daw. Comp. 405. 2S. All coroners shall deliver their inquisitions to the next supe- rior courts of their respective counties, and the said court shall proceed thereon against the offender.—lb. 21). Every coroner upon an inquisition before him found, whereby any person or persons shall be indicted of murder or manslaughter, or as accessory, or accomplice to the said crime of murder, either before or after the fact, shall put in writing the effect of so much of the evidence given to the jury before him as shall be material; and every such coroner is hereby authorized and required to bind all such by recognisance as do declare anything material to prove the said murder or manslaughter, or to prove any person or persons acces- sory or accessories, as aforesaid, to the said murder, to appear at the next superior court of the county where the trial thereof shall be, then and there to give evidence against such offender or offenders, at the time of his, her, or their trial, and shall certify, as well the same evidence, as such recognisance or recognisances, in writing, as he shall take, together with the inquisition before him taken, and for- ward to the said superior court, at or before the time of the trial of the party or parties indicted.—lb. 216 CORONERS. [Part III, 30. If any coroner be remiss and do not take inquisition as afore- said, or do not certify as is before directed, or shall offend in anything contrary to the true intent and meaning of this act, the superior court of the county where such offence shall be committed, upon due proof thereof by examination before them, shall for every such offence set such fine upon the said coroner as the said court may see fit and rea- sonable, not exceeding five hundred dollars.—Daw. Comp. 405. 31. The said coroner shall, before entering upon the duties of his office, give bond and security, as is prescribed in the case of sheriffs, in the sum of five hundred dollars, except in the counties of Chatham and Richmond, where the penalty of said bonds shall be two thou- sand dollars.—lb. 32. The coroner and constable serving the. process shall each re- ceive, in addition to the fees now prescribed by law, the sum of fifty cents on each execution collected; and that the constable summon- ing the jury shall receive the sum of one dollar.—lb. 33. All process issued by the clerks of the said courts respectively, where the sheriff,1Vho ought to execute the same, shall be in anywise interested, shall be directed to the coroner of such county, and served and returned by him in the same manner as is required of sheriffs.—Prin. Dig. 206, 207. 34. Fees of Coroners. For summoning an inquest on a dead body, and returning the inquisition, (to be paid by the county if the deceased's estate is unable,) $12 50 For providing a coffin and burial expenses, (to be paid in like manner as above,)# 3 75 In all other cases, the same as the sheriff. 35. Precept to summon a Jury. Georgia, > To Chappell Boutwell, one of the constables Baldwin County. J of and in the said county. These are to require you, immediately upon the sight hereof, to summon twenty-four good and lawful men of the said county, to be and appear before me, I. T. Cashing, the coroner of the said county, at Milledgeville in the said county, on the tenth day of August ensuing, then and there to inquire of, do, and execute all such things, as on behalf of the said state shall be lawfully given them in charge, touching the death of Joel Howe. And be you then there, to certify what you shall have done in the premises; and further, to do and execute what, in behalf of the said state, shall be then and there enjoined you. Given under my hand and seal, the ninth day of August, in the year of our Lord 1835. I. T. Cushing, Coroner. 36. Inquisition of Murder. Georgia, \ An inquisition indented, taken at Baldwin County. ) in the said county of Baldwin, the tenth day of * His fees fof holding inquests on slaves, payable by the owners.—Prin. Dig. ISO. Chap. G.] coroners. 217 August, in the year of our Lord one thousand eight hundred and thiily.five, before /. TCushing, the coroner of and in the said county, upon the view of the body of Joel Howe, then and there 1 yini* dead, upon the oaths of Abner Bush, Charles Bush, Jurors. &c. ) 37. An Inquisition where one hangs himself. [Begin as above with the first eight or ten lines, and continue as follows;] riot having the fear of God before his eyes, but being * Lei;al precision and refinement aside—how would such composition harmonize to the ear of a plain, common-sense English scholar 1—Compilers. e e 218 CORONERS. [Part III. seduced and moved by the instigation of the devil, at Baldwin aforesaid, in a certain wood, at Baldwin aforesaid, standing and being, the said Joel Howe, being then and there alone, with a cer- tain hempen cord, of the value of ten cents, which he, then and there, had and held in his hands, and one end thereof then and there, put about his neck, and the other end thereof, tied about a bough of a certain oak tree, himself, then and there, with the cord aforesaid, voluntarily and feloniously, and of his malice afore- thought, hanged and suffocated ; and so the jurors aforesaid, upon their oath aforesaid, say, that the said Joel Howe, then and there, in manner and form aforesaid, as a felon of himself, feloniously, voluntarily, and of his malice aforethought, himself killed, Strang- led, and murdered; against the peace and dignity of the state. 38. An Inquisition where one drowns himself. [Begin as above, but with variations to suit the particular case.] at Baldioin aforesaid, in the county aforesaid, then and there, being alone in a common river, there called Oconee, himself volun- tarily and feloniously drowned ; and so the jurors aforesaid, upon their oath aforesaid, say, that the aforesaid Joel Howe, in manner and form aforesaid, then and there, himself voluntarily and feloni- ously, as a felon of himself, killed and murdered; against the peace and dignity of the state. 39. An Inquisition where one dies a Natural Death. [Begin, and vary to suit the particular case.] that the said Joel Howe, on the ninth day of June, in the year aforesaid, at Milledge- ville, and in the county aforesaid, to wit, in a certain place called the old barn, was found dead ; that he had no marks of violence appearing on his body, and died by the visitation of God in a natural way ; and not otherwise. In witness, &c. 40. An Inquisition upon one who dies in Jail. [Begin as in other cases, and after naming the jurors, say,] who say upon their oath, that the aforesaid Joel Howe, on the day of the taking of this inquisition, being a prisoner in the jail at Mil- ledgeville, in the county aforesaid, then and there died of the visit- ation of God, and then and there, in manner and form aforesaid, came to his death ; and not otherwise. In witness, &c. 41. An Inquisition on one non compos mentis. —who say upon their oath, that the aforesaid Joel Howe, on the day and year aforesaid, and at the time of his death, to wit, from the third day of June, to the time of his death, and at the time of his death aforesaid, was a lunatic, and a person of insane mind; and that the said Joel Howe, being a lunatic and a person of insane mind as aforesaid, did, on the seventh day of August, come alone to a certain river called Oconee, in the said county, and did, then and there, cast himself into the said river, and drown himself in Chap. G.] CORONERS. 219 the water of said river; and so the jurors aforesaid, upon their oath aforesaid, say, that the aforesaid Joel Howe, from the cause afore- said, in manner and form aforesaid, came to his death ; and not otherwise. In witness, &c. -1'3. An Inquisition on one for cutting his Throat. —by the instigation of the devil, at Milledgeville aforesaid, in the county aforesaid, in and upon himself, then and there being, in the peace of God and of the state, feloniously, voluntarily, and of his malice aforethought, made an assault; and that the aforesaid Joel Howe, then and there, with a certain knife, of the value of six cents, which he the said Joel Ilowe, then and there, held in his right hand, himself upon his throat, then and there, feloniously, voluntarily, and of his malice aforethought, did strike and give to himself, then and there, with the knife aforesaid, upon his throat aforesaid, one mortal wound of the breadth of four inches, and the depth of one inch ; of which said mortal wound, the said Joel Howe, at Milledgeville aforesaid, in the county aforesaid, languished, and languishing lived, from the said third day of August, in the year one thousand tight hundred and thirty-five aforesaid, to the fourth day of August, and that the said Joel Ilowe, on the fourth day of August aforesaid, in the year one thousand eight hundred and thirty five aforesaid, at Milhdgerille aforesaid, in the county aforesaid, of that mortal wound died. And so the jurors aforesaid, $'o help you God." And the same oath which is taken by the foreman, shall be taken by each and every member of any and all the grand juries in this state.—Prin. Dig. 226. 16. Grand jurors shall be bound only to notice or make present- ment of such offences as may or shall come to their knowledge or observation after they shall have been sworn : but nothing in this act shall be considered as impairing their right as jurors to make pre- sentment of any violations of the laws which they may know to have been committed at any previous time.—Daw. Comp. 229. 17. It shall be lawful in all cases where it happens that the jus- tices of any inferior court, at the regular term of said court, shall omit drawing a jury to serve at the succeeding court, that the justices of said court, or any three of them, with the sheriff and clerk, meet at the place of holding such court, at least forty days previous to the sitting of said court, and draw a jury under the same regulations that they ought to have done in term time.—Daw. Comp. 199. 18. Where any inferior court in this state, at the regular term of said court, have omitted drawing a jury to serve at the next court, that they shall be authorized to draw a jury, at any ti,me, under the same regulation as in the preceding section; and that the clerk of the inferior court shall, immediately after the drawing of said jury as herein provided, make out a list of the jury so drawn, and place the same in the hands of the sheriff, or deputy, who shall proceed, imme- diately after receiving the same, to summons the jury so drawn, in the same manner as if they had been drawn at the regular term of said court; and the said jurors so drawn and summoned, shall be bound and liable to serve in the same manner, and under the same penalties as if drawn at the regular term of said court.—Daw. Comp. 199, 200. Of the Challenge of Jurors. 19. There are two kinds of challenge, either to the array, by which is meant the whole jury; or to the polls, by which are meant the several particular persons or heads in the array.—1 Inst. 156, 158. 20. Peremptory.—This is so called, because a person may chal- lenge peremptorily upon his own dislike, without showing of any cause. 21. Principal challenge to the polls—where cause is shown, but which, if found true, stands sufficient of itself, without leaving any to the triers. Chap. 7.] JURORS. 225 Pauses of principal challenge to the polls are such as these:— If a person is an alien, 1 Inst. 156 ; or if not qualified as the state laws direct. If the juror be of blood or kindred to either party, this is a principal chal- lenge; for that the law presumeth that one kinsman doth favour another before a stranger; and how far remote soever he is of kindred, yet the chal- lenge is good.—1 Inst. 157. Affinity or alliance by marriage is a principal challenge, if the same con- tinues, or issue be had ; otherwise it is but to the favour.—1 Inst. 157. If the juror hath part of the land that dependeth upon the same title, it is a principal challenge.—1 Inst. 157. It hath been allowed a good cause of challenge on the part of the prisoner, that the juror hath declared his opinion beforehand, that the party is guilty, or will be hanged, or the like.—2 Hawk. 418. Likewise, if the juror gave a verdict before for the same cause,'or upon the same title or matter, though between other persons.—1 Inst. 157. A grand juror may be challenged.—Haw. Pla. Cor. book 2, chap. 25, s. 16. And if a grand juryman who was one of the indictors in the same cause be returned upon the petit jury, and do not challenge himself, he shall be fined. 2 H. H. 300. If a juror hath been an arbitrator, chosen by the plaintiff or defendant in the same cause, and hath been informed thereof, or treated of the matter, this is a principal challenge ; otherwise, if he were chosen indifferently by either of the parties.—1 Inst. 157. Also, if a juryman, before he be sworn, take information of the case, this is cause of challenge.—2 H. H. 306. If any, after he be returned, do eat and drink at the charge of either party, it is a principal cause of challenge.—1 Inst. 157. But it is not a principal challenge to a juror, but only to the favour, that the prosecutor was lately entertained at his house.—3 Salk. 81. Actions brought by the juror against either of the parties, or by either of the parties against him, which imply malice or displeasure, are causes of princi- pal challenge ; other actions, by which do not imply malice or displeasure, are but to the favour.—1 Inst. 157. 22. Challenge to the polls for favour.—This is when either party cannot take any principal challenge, but showeth causes of favour, which must be left to the discretion of the court, upon hearing their evidence, to find hitn favourable or not favourable ; and the causes of favour are infinite ; for all of which the rule of law is, that he must stand indifferent, as he stands unsworn. No challenge shall be taken till a full jury have appeared.—2 Haw. 412. He that hath divers challenges must take them all at once.—1 Inst. 158. If a juror he challenged by one party, and after be tried indifferent, it is time enough for the other party to challenge him.—1 Inst. 158. When the state is party, the defendant that challengeth for cause, must show his cause presently.—1 Inst. 158. If a man, in case of treason or felony, challenge for cause, and he be tried indifferent, yet he may challenge him peremptorily.—1 Inst. 158. It has been the uniform practice in this state, for the judges, instead of triers, to try and decide upon the propriety of all challenges, which are made to jurors, or persons brought to give evidence in any of the courts thereof. —Clay. Just. 220. By the law of England, a jury, after their evidence given upon the issue, ought to be kept together in some convenient place without meat or drink, fire or candle, and without speech with any, unless it be the bailiff, and with him only if they be agreed.—1 Inst. 227. And if the jury, after their evidence given to them at the bar, do at their own charges eat or drink, either before or after they be agreed on their ver- diet, it is finable, but it shall not avoid the verdict; but if, before they be agreed rf 226 JURORS. [Part III. on their verdict, they eat or drink at the charge of the plaintiff, if the verdict be given for him, it shall avoid the verdict. But if it be given for the defend- ant, it shall not avoid it; and so on the contrary. But if, after they be agreed on the verdict, they eat and drink at the charge of him for whom they do pass, it shall not avoid the verdict..—1 Inst. 227. Whenever it shall so happen that the jury is confined, in the investigation of any case, for a length of time which exposes them to hunger or cold, or both, the court may, on application from said jury, direct them to be fur- nished, at their own expense, with such nourishments as in his own judg- ment may seem just and proper; and permit them to have provisions and fire, or either, if circumstances should, in the judgment of the court, require it.—Acts 1831, p. 138. After their departure they may desire to hear one of the witnesses again, and it shall be granted, so he deliver his testimony in open court; and also they may desire to propound questions to the court for their satisfaction, and it shall be granted, so it be in open court.—2 H. H. 296. But if the plaintiff, after the evidence given and the jury departed from the bar, or any for him do deliver any letter from the plaintiff to any of the jury concerning the matter in issue, or any evidence, or any writing touching the matter in issue, which was not given in evidence, it shall avoid the verdict, if it be found for the plaintiff, but not if it be found for the defendant; and so on the contrary. But if the jury carry away any writing unsealed, which was given in evidence in open court, this shall not avoid their verdict, albeit they should not have carried it with them.—1 Inst. 227. A jury charged and sworn in a capital case, cannot be discharged, without the prisoner's consent, till they have given a verdict.—2 Haw. 439; Fost. 22, Sir John Wedderbourn s case. „ And in case of a jury committing a contempt, or breaking up before giving in their verdict in any civil case, the court may declare the same a mistrial, and shall fine each of the offending juror or jurors in a sum not exceeding one hundred dollars.—Prin. Dig. 212. If a jury cast lots for their verdict, it shall be set aside, and they shall be fined for the contempt.—3 Keb. 805; 2 Lev. 140, 205 ; 2 Jones, 83. In criminal cases, of life or member, the jury can give no private verdict, but they must give it openly in court.—1 Inst. 227. After the verdict is recorded, the jury cannot vary from it, but before it be recorded they may vary from the first offer of their verdict; and that ver- diet which is recorded shall stand.—1 Inst. 227. A verdict finding an impossible matter shalljiot be void, if at the same time it find the substance of the indictment, but the surplus shall be rejected.— 1 Haw. 77. Verdicts shall not be taken so strictly as pleading, but the substance of the thing in issue ought to be always found.—3 Salk. 373. But if the case so happen, that the jury can in nowise agree, as if one of the jurors knoweth in his own conscience the thing to be false, which the other jurors affirm to be true, and so he will not agree with them in giving a false verdict, and this appeareth to the justices by examination, the justices, (as it seemeth,) in such case, may take such order in the matter as shall seem to them, by their discretion, to stand with reason and conscience, by award- ing a new inquest, or otherwise, as they shall think best, by their discretion, like as they may do if one of the jury die before the verdict.—Dr. and Stud. 158. If a man assault or threaten a juror for giving a verdict against him, he is highly punishable by fine and imprisonment. No one is liable to any prosecution in respect of any verdict given by him in a criminal matter, either upon a grand or petit jury ; for since the safety of the innocent, and punishment of the guilty, doth so much depend upon the fair and upright proceedings of jurors, it is of the utmost consequence that they should be as little as possible under the influence of any passion what- soever, and therefore, lest they Should be biased with the fear of being har- Chap. 8.J GRAND JURY. 227 asseil by a vexations suit, for acting according to their consciences, the law will not leave any possibility for a prosecution of this kind.—1 Hawk. 199; L. Kayin. 4f>9. No "verdict shall be received on any unliquidated demand where the jury have increased their verdict on account of interest, nor shall interest be given on any open account, in the nature of damages.—Prin. Dig. 212. Fees of Jurors. 23. The fee of the jury shall be three dollars on all verdicts which may be signed, and on all judgments which may be confessed the jury fee shall be one dollar—to be paid by the party taking such ver- diet or judgment, and to be taxed in the bill of costs.—Acts of 1832, p. 114. CHAPTER VIII. GRAND JURY.* 1. Any person who may be introduced into the grand jury room, is bound not to disclose what may transpire; and the jurors them- selves are, by the terms of their oath, laid under the same obliga- tion ; and if they transgress it, they are finable. Formerly, indeed, they became accessories to the offence, if felony, and if treason, prin- cipuls ; and at this day, it is in general a high misprision. But where a witness examined on the trial swears directly the reverse of the evidence given before the grand jury, they are at liberty to state this circumstance to the judge, who may direct him to be pros- ecuted for perjury, on the testimony of the grand inquest, 1 Chit. Crim. Law, 317 ; for the statute declares, that " all grand jurors shall be competent witnesses in any court of record in this state, where it may be necessary on account of anything that may be given in evidence before them as a body of grand jurors."—Prin. Dig. 146. 2. It has been held that the true object of the secrecy required, is to prevent the evidence produced before the grand jury from being counteracted by subornation of perjury on the part of the defend- ant.— 1 Chit. Criin. Law, 317. 3. The grand jury in general hear evidence only in support of the charge, and not in exculpation of the defendant; and it has been said that they ought never to hear any other than that which is pro- duced by the state. But it may be doubted whether, as they are sworn to present the truth, which necessarily requires investigation, in case they may not be able to elicit truth from the witness for the prosecution, and are actually convinced of that circumstance, they may not require other testimony to assist them in forming their de- cision. The true intention seems to be, that, prima fapie, the grand jury have no concern with any testimony but that which is regularly •For the manner of drawing, selecting, and swearing grand jurors, see ante, c. 7. 228 GRAND JURY. [Part in. offered to them with the bill of indictment, on the back of which the names of the witnesses are inserted ; their duty being merely to in- quire whether there be sufficient ground for putting the accused party to his trial before another jury of a different description. But if they are unable to satisfy themselves of the truth, sufficiently to warrant their determination, they may properly seek other informa- tion relative to mere facts ; but further than this they cannot pro- ceed. Formerly, indeed, it was laid down that the grand jury ought to find the bill if probable evidence were adduced to support it, be- cause it is only an accusation, and the prisoner will afterward defend himself before a more public tribunal. But great authorities have taken a more merciful view of this subject, and considering the igno- miny, the dangers of perjury, the anxiety of delay, and the misery of a prison, have argued, that the grand inquest ought, as far as the evidence before them goes, to be convinced of the guilt of the de- fendant: what was therefore anciently said respecting petit treason may be applied to all other offences, that, since it is preferred in the absence of the prisoner, it ought to be supported by substantial testi- monies.—1 Chit. Crim. Law, 317, 318. The grand jury are sworn to inquire only for the body of the county ; and therefore they can- not regularly inquire of a fact done out of the county.—4 Black. 502. 4. With respect to the kind of evidence which grand jury may receive, it should be observed, that they are bound to take the best legal proof of which the case admits, and it must be given on oath; and therefore the jury cannot, on suspicion of a witness having been tampered with by the prisoner, receive in evidence his written ex- amination in lieu of his parole testimony, and the court will resist an application for the depositions ; and upon the same ground, on an in- dictment for perjury in an affidavit made in chancery, they should have the original document, and a mere office copy will not suffice; so evidence of what third person said will not be good in order to sup- port a bill before the grand inquest. But an accomplice may give evidence before them to support a bill of indictment against the par- taker of his guilt; and a bill so found will be sufficient, even though he had not been previously admitted as state's evidence, but had been taken from prison to give evidence by means of an order altogether surreptitious and illegal. But the grand jury ought not to find an indictment upon the testimony of incompetent witnesses, as of those who have been convicted of conspiracy, or other infamous crime; and therefore, if in case a bill be presented to them with such wit- nesses alone endorsed, on application to the court they will be di- rected to reject it; if the jury have any doubt with respect to the propriety of admitting any part of the evidence offered to them, they may pray the advice of the court which is sitting. In case of high treason, no indictment can be found without the oath of two witnesses, or a voluntary confession. If the grand jui^y find the bill upon incompetent or improper evidence, yet, if the prisoner be afterward tried on legal and sufficient testimony, it seems that the conviction cannot be shaken.—1 Chit. Crim. Law, 318, 320. 5. All witnesses who are material to the finding of an indictment, Chap. 8.] GRAND JURY. 229 are compellable to appear before the grand jury and give evidence. And if they neglect to obey it, on affidavit that they were material to the prosecutor's case, and that they were duly served with sub- puma, the court will grant an attachment against them, on which they may be taken and committed till after trial of the offender, when an order will be made for their discharge. If when a witness ap- pear, he refuses to be sworn, he may be committed for a contempt. 1 Chit. Critn. Law, 320, 321. G. Each witness, before he leaves the court, is sworn, that the evidence he shall give the grand inquest upon the bill of indictment against the defendant, shall be the truth, the whole truth, and no- thing but the truth.; and if he be guilty of perjury, he will be subject to prosecution for that offence.—lb. 322. 7. After the grand jury have heard the evidence, they are to decide whether the bill shall be found or rejected. In the finding, twelve of the jurymen, at least, must concur; but if the rest of the jury dissent, the finding will be still valid. The jury cannot find one part of the same charge to be true and another false, but they must either main- tain or reject the whole ; and therefore, if they endorse a bill of in- dictmcnt for murder, " bill a vera se defendendo" or billa vera for manslaughter, and not for murder, the whole will be invalid, and may be y other person or persons whatsoever, as phrent, guardian, executor, administrator, agent, or trustee, or in any other manner whatever, according to the best of my knowledge, informa- tion, or belief, and that I will give a just and true answer to all law- ful questions that may be asked me touching the same; and all this I declare, without any equivocation or mental reservationf whatever; So help me God which said oath or affirmation the receivers for the several counties are hereby authorized and required, respectively, to administer gratis.—Prin. Dig. 493. * rormrrlyghr per cent., but by the act of 1819 increased to twenty-five per cent.; and by the act of 1831, pamphlet, page 233, it is provided that the tax receivers and col- b otors in the several counties in this state, whose tax does not amount to $1500, shall ti reive twehh/five per cent., as an additional compensation, on what they are now allowed 1-ir their services. t All persons making returns for taxable property, may, at the time of taking th« nVh prescribed by law, make an exception of such property as they on their said oath I (lieve to have been, or will be returned by some other person.—Daw. Comp. 420. °g 234 RECEIVER OF TAX RETURNS. [Part III. 13. Where any receiver shall find out taxable property belonging to any persons residing without the limits of the state, and who have no attorney or trustee, legally constituted in this state, or which has not been returned to the receiver of the county where such property lies or is found, he shall charge such property for the payment of the tax imposed thereon, and also for all taxes due thereon by any former tax act, and forthwith once in every month publish a notice of such charge in a public gazette, and in case of non-payment of such taxes within six months, the said property shall be liable thereafter to double tax.—Prin. Dig. 494. 14. Where receivers shall discover that any taxable property has not been returned as directed by law, they shall summon three free- holders, residents of the districts where such property may lie or be, to ascertain the quality of the lands, if any, or other property, and double the tax thereon.—Prin. Dig. 495. 15. If any person or persons shall neglect or refuse to give in a return of his, her, or their taxable property, or shall be convicted of fraud, or making a false return thereof, he, she, or they shall.be liable to pay to the clerk of the inferior court of the county a fine of ten dollars for every hundred dollars valuation so neglected or concealed, one half whereof for the use of the county, under the direction of the inferior court, and the other half for the use of the informer or informers, to be recovered in any court having cognizance of the same.—Prin. Dig. 493. 16. If any receiver shall make a false return, expressive of more or other than is to him given in, he shall forfeit and pay to the party aggrieved a sum equal to double the amount of the taxes on- the property so illegally returned.—Prin. Dig. 498. And by a resolution of the General Assembly, approved 3d December, 1806, it is declared, " that the receivers of tax returns within the several counties of this state, who shall hereafter render an incorrect statement of the taxes due from any county, shall be liable and answerable for the amount of such deficiency, whether in favour or against the state; and the comptroller is authorized to deduct the same from the amount of his fees, to be placed to the credit of the tax collector, if such statement shall be against him, or to the credit of the state, if such amount shall be found against it."—Clayton's Dig. 680. 17. Receivers of tax returns and collectors of taxes of the respective counties shall be responsible to the executive department, and be amenable to such rules in conducting the duties of their respective offices as the executive may think necessary and proper.—Prin. Dig. 492. 18. No justice of the inferior court within this state shall hereafter exercise the duties of tax collector or receiver of tax returns.— Prin. Dig. 502. rlinp. 11.] COLLECTORS OP TAX. 235 CHAPTER XI. COLLECTORS OF TAX. 1. Collectors of tax are elected, commissioned, &c. and vacancies in their office filled, in the same manner as receivers; for which see the preceding chapter, s. 1, 2. By the act of 1830, pamphlet, page 113, the superintendents of elections to beheld for county officers, in the several counties in this state, on the first Monday in January, 1S31, were directed to omit to hold an election for tax collectors of that year; the object of which was, that the collectors afterward to be elected annually might, in the same year in which they were elected, proceed to collect the tax due for the preceding year: as the law stood before, the collector elected in January, 1831, had no duty to perform until the year 1832. 2. All collectors and other officers hereafter elected shall apply for and obtain their commissions and certificates, and qualify in the manner prescribed by law, or'their office shall be considered as va- cant, and shall be filled in such manner as is now prescribed by law, and the person who has failed to obtain his commission and certifi- cate as aforesaid shall not be considered as entitled to be a candidate f >r the office : but this act shall not affect collectors who are in ar- rears for their insolvent lists only, and who have not had an opportu- nity of having said list allowed them.—Daw. Comp. 296. 3. The collectors, as well as receivers of returns, in the respect- ive counties shall be responsible to the executive department, and be amenable to such rules in conducting the duties of their respective offices as the executive may think necessary and proper; and the said collectors, before the)r enter on the duties of their office, shall give bond,* with sufficient security ; and shall also take and sub- scribe the following oath or affirmation, to wit: A. B., appointed collector of tax for the county of , do solemnly swear that I will faithfully discharge the duties required of me by law f and if he shall presume to execute the said office without the qualification aforesaid, he shall forfeit double the sum for each person's tax he shall receive, to be recovered by any person who shall inform and prosecute for the same, in any court or tribunal having cognizance of debt to that amount.—Prin. Dig. 492, 493. By the act of 1823, Daw. Comp. p. 296, it is further provided that if any tax collector elect shall proceed to collect the tax, or any part thereof, before he shall have given bond and taken the oath of office, he shall be liable to indictment, and, upon conviction thereof, fined and imprisoned at the discretion of the court. 4. The governor for the time being shall take bond and security of the collectors of each county respectively for the due performance of all the duties required of them, and shall transmit a dedimus to the justices of the inferior court of the several counties, or any two of * See sec. 6. 236 COLLECTORS [Part III. them, to receive and cause to be executed such bond, with two or more securities, to be approved of by such justices, which bond shall be forthwith transmitted by them to the executive office.—Prin. Dig. 493 ; but see sec. 6. 5. No collector, sheriff, coroner, clerk of the superior court, clerk of the inferior court, or any other person who is or may be a holder of public money, and elected to any office, shall be commissioned by the governor, or be qualified by any judge, justice of the inferior court, or justice of the peace, until he shall produce to his excellency the governor, and also to the judge or justice of the inferior court, or justice of the peace before whom he appears to be qualified, a certificate from the treasurer of the state, countersigned by the comp- troller-general, certifying that he has accounted for and paid into the treasury all sums for which he is accountable and liable ; which cer- tificate shall in each and every case accompany the dedimus potesta- tern. And in addition to the oath of office, the person elect shall swear that he is not the holder of any public moneys unaccounted for. —Daw. Comp. 296. 6. The tax collectors' bonds in the several counties in this state shall be taken for at least double the amount of the tax the said county is liable to pay, which bond shall be recorded in the clerk's office of the inferior court, who shall receive from said tax collector for such service the sum of one dollar ; and when the original bond may be lost, or otherwise mislaid, a copy of said bond certified by the clerk to be a true copy shall be held good in the place of the original.—Daw. Comp. 420. 7. All the property of the tax collector and his securities, as well for the county as state tax, shall be bound from the time of signing such bond, Prin. Dig. 502; and no such securities shall be entitled to hold the office of sheriff in any county in this state until all moneys collected by the said tax collectors shall have been paid by him or them to the proper authorities.—Prin. Dig. 506. 8. No justice of the inferior court within this state shall exercise the duties of tax collector, or receiver of the tax returns.—Prin. Dig. 502. 9. Collectors who have given bond, and qualified in terms of the law, may proceed immediately upon the receipt of the digest to col- lect the tax therein assessed, and shall attend in each district* in the respective counties to receive the taxes, and shall previously give at least ten days' notice thereof, and shall attend at least two days in each district, and not within ten days of each other.—Prin. Dig. 493, 504. 10. Collectors demanding more tax than by law is imposed, shall forfeit to the party aggrieved fourfold on the sum received, recover- able before any court having jurisdiction thereof.—Prin. Dig. 498. 11. If any person shall fail to pay their taxes, the collector shall proceed against such defaulter by distress and sale (after due notice * Except the county of Chatham; the collector shall receive the taxes of that cour.ty n Savannah.—Prin. Dig. 501. Chap. 11.] OP TAX. 237 given of such sale, stating the assessment levied or tax due by such person, see post, s. 16) of goods and chattels, if any to be found, otherwise of the lands of such defaulter, or so much thereof as will pay the taxes due with costs ; but no sale of lands shall be made or lie valid unless two months' notice thereof be given by advertisement in one of the gazettes of this state, which shall be regularly published until the day of sale, and in all cases to make titles to the purchasers of the property sold as aforesaid. And collectors shall, at all sales of land, first offer such parts as may be reasonably expected to produce the amount of tax due by the owner thereof; and if he shall not have a bid for such part, he may then offer a larger quantity until he can produce bids to the amount of the taxes due ; and no sale of more than one tract or grant as the property of any person or company shall be valid, where the first tract sold shall have produced the tax due by such person or company.—Prin. Dig. 495. 12. Non-residents who have no attorney or agent in the state, and who have taxable property within the same, that has been charged and advertised by the receiver agreeably to law, upon the non-pay- ment of the taxes thereon in six months, the collector in a sum- mary way, by attachment, may proceed against said property, in the manner of distress and sale, and shall make titles to the persons pur- chasing the same, and pay the money (lawful charges deducted) into the treasury; if the owner, his agent, or attorney, does not within twelve months after the sale apply for the surplus. It is made the duty of every collector, on the day when he is required by law to close his accounts, or on which he shall come to a final settlement with the treasurer, to make a return on oath, which shall be certified and vouched for by at least two justices of the peace for his county, of all lands sold by him for taxes, especially setting forth the tax for which it was sold, the price it sold for, and the purchaser. And in case of failure, he and his security shall be subject to a penalty of two thousand dollars, to be recovered in any court having cognizance thereof to the use of the prosecutor ; and shall also be subject to an action for damages by any person aggrieved.—Prin. Dig. 494. 13. In all cases where the owners of taxable property shall be in default for one or more years, and such property has not been seized or sold, the owner or his agent may make a return thereof to the clerk of the inferior court where such defaulter or his agent may reside; and the clerk shall enter the same in the digest of the taxes for that year, and furnish the collector of such year with a copy thereof, whose duty it shall be to receive the amount of such taxes, and pay the same over to the treasurer of the state.—Prin. Dig. 501. 14. It shall be lawful for any agent to return any property to the receiver, and pay the taxes due thereon to the collector of the county in which such agent resides. And such agent shall be subject to pay the taxes thereon out of his own proper estate, notwithstanding he may renounce or disclaim acting as such before the taxes are levied, unless such agent shall make oath before the receiver that he hath renounced such trust before the payment of the tax became due, 238 COLLECTORS [Part III. without having done it with a design to avoid the payment thereof. But if said agent shall, within one year after making such oath, again become agent, or act as such, he shall be liable to pay the tax, to be levied and collected as in other cases.—Prin. Dig. 493, 494. 15. Taxes are preferred to all other securities and encumbrances; and in case any person shall die before giving in his property, or paying his tax, his representatives shall pay his taxes prior to all other debts whatever, if they have assets in their hands ; and in case they fail to do so, an execution may issue against their individual property for the amount. And if any person after giving in, and before the time of payment of his taxes shall leave the county, the collector is required forthwith to levy the taxes, although the day of payment has not arrived, unless the person shall give security, to be approved by him, for the payment thereof.—Prin. Dig. 496. 16. The time of advertising the collectors' sales, and the days on which they shall take place, shall be the same as are prescribed by law for sheriffs' sales; Provided, that such collector, in all cases where they, or either of them, shall levy or distrain on any personal property, for the collection of a poll-tax only, that it shall be his duty to advertise the property so levied upon as aforesaid, in three of the most public places in the captain's district, at least fifteen days pre- vious to such intended sale, wherein such defaulter resides, or may have resided at the time of giving in his return to the tax receiver; and his property shall be sold under the same restrictions as are heretofore pointed out by the tax law now in force.—Prin. Dig. 504. 17. No collector shall collect any tax that has been due two years from any person, unless sufficient property could not be found to satisfy the same.—Prin. Dig. 504. 18. All deeds of gift, conveyances, mortgages, sales, and assign- ments of goods, lands, tenements, and chattels of any kind, made with intention to avoid the taxes, are void ; and any person who has mortgaged any estate, who shall neglect to pay the tax of the same, the mortgage shall be liable to pay the same. But no sale for taxes shall effect the state's title to any mortgaged property.—Prin. Dig. 496. 19. Any non-resident who shall expose to sale any goods in this state, shall, on his arrival, or within seven days after entering the same, make returns on oath to the receiver, and give security to the collector to pay the same on or before the time prescribed for paying taxes : Provided, such goods shall not be liable to pay the tax when they may be exported, or placed in the hands of a vendue master, to be actually disposed of by him or them ; and on failing to com- ply as aforesaid, it shall and may be lawful for the collector to pro- ceed against him or them, in like manner as against persons about to remove out of the county.—Prin. Dig. 497 ; see ante, s. 15. 20. Taxes are to be paid in specie, bank bills of the United States, governor's, president's, and speaker's warrants, and bank bills of the chartered banks of this state.—Prin. Dig. 497. 21. In all cases where free persons of colour, subject to taxation, fail or refuse to pay their tax, or shall have no property on which to Chap. 11.] OP TAX. 239 levy, the collector may levy on and hire out said free person of colour, for such price as will produce the amount due the state.— Prin. Dig. 507. 22. One half of the (general) tax of each county shall be paid into the treasury of the state as heretofore, and the other half to the inferior courts of the respective counties, for county purposes, to be appropriated by said courts to the building of courthouses and jails, the building of bridges, the improvement of public roads, and the education of youth, as the said courts respectively may deem most expedient.—Daw. Comp. 421. 23. Where the collector finds no property of the person in arrears, to satisfy the tax due, he is empowered and required to sell property found in any other county, to the amount of the tax, without further notice than twenty days' publication in one of the gazettes of the state.—Prin. Dig. 49G. 24. No replevin shall lie, or any judicial interference be had in any levy and distress for taxes under the tax-law, but the party injured shall be left to his own proper remedy, in any court of law, against the officers.—Prin. Dig. 497. 25. Collectors shall lay before the grand jurors a list of insolvents in their respective counties, upon oath, who shall allow or disallow the same.—Prin. Dig. 496. 26. No collector shall be allowed his insolvent list after execution shall have issued against him, unless he will come before the comp- troller-general, and have the same fairly adjusted: and no collector shall be allowed a credit at the comptroller-general's office for the commissions of any receiver until he shall have produced to the comp- troller the receipt given by him to the receiver for the digest as afore- said, with the receipt thereon of the receiver for the amount of his commissions as therein specified.—Prin. Dig. 500, 503. 27. If the insolvent list should be approved for a smaller sum than was claimed by the collector, on his settlement with the treasurer, he shall return it as herein directed, and pay the difference at the same time into the treasury, or execution shall issue as herein pointed out. —Prin. Dig. 496. 21, 1G2. 41. When any person, holding real or personal estate, shall depart this life intestate, the said estate, real and personal, shall be con- sidered altogether the same nature, and upon the same footing as to distribution, which shall take place agi*eeably to the provisions of the preceding section ; but whenever there shall be a child or chil- dren of an intestate, who shall have any estate by settlement of the intestate, or shall be advanced by the intestate, in his or her lifetime, by portion or portions equal to the share which shall by such dis- * See sec. 43, post. 262 COURTS OF [Part III. tribution be allotted to the other children to whom such distribu- tion is to be made, he, she, or they in that case shall receive no further distribution of the said intestate's estates. And when- ever any child shall have an estate by settlement from the said intestate, or shall be advanced by the intestate, in his or her life- time, by portion not equal to the share which may be due to the other children by distribution as now established, then so much of the surplusage of the estate of such intestate, as shall make the estate of all the children of such intestate to be equal, as near as can be estimated: Provided such advancements, when brought into hotch-potch, shall be estimated according to the value of the prop- erty at the time such advancement was made, and no interest allowed thereon.—Daw. Comp. 206. 42. In case of a feme covert dying intestate, the husband may demand and have administration of their rights and credits, and other real and personal estates, and recover and enjoy the same without being subject to distribution.—lb. 207. This provision of the act of 1821, being adjudged a variance from the cap- tion, was re-enacted in 1827.—See lb. 220. 43. Whenever it shall so happen that any person shall die intes- tate and without issue, his wife shall inherit the whole, both real and personal, of her deceased husband, after paying his just debts.—lb. 217. 44. Where any woman shall die intestate, leaving children com- monly called illegitimate, born out of wedlock, and no children born in lawful wedlock, all such estate whereof she shall die seized or possessed, whether real or personal, shall descend to, and be equally divided among such illegitimate children and their representatives, in the same manner as if they had been born in wedlock ; and if any such illegitimate child shall die intestate, without leaving any child or children, his or her estate, as well real as personal, shall descend to and be equally divided among his or her brothers and sisters born of the body of the same mother, and their representatives, in the same manner, and under the same regulations and restrictions as if they had been born in lawful wedlock.—Prin. Dig. 136. 45. The superior courts in the several counties shall exercise the powers of a court of equity, in all cases where a common law remedy is not adequate, to compel parties in any cause to discover, on oath, all requisite points necessary to the investigation of truth and justice; to discover transactions between co-partners and co- executors ; to compel distribution of intestates' estates, and payment of legacies ; and to discover fraudulent transactions, for the benefit of creditors.—lb. 208. 46. The foregoing section is amended by an act of 1820, which provides that, whenever, in any of the cases enumerated in said sec- tion, a plaintiff or complainant shall conceive that he, she, or they can establish his, her, or their claim, without resorting to the con- science of the defendant, it shall and may be lawful for every such plaintiff or complainant to institute his, her, or their action upon the Chap. 14] ORDINARY. 263 common law side of the court, and shall not be held to proceed with the forms of equity. 47. That all parties in any of the cases mentioned in said section, after the commencement of the action at common law, may, during the progress of said suit, file his, her, or their bill for the discovery of testimony, in aid or defence of his, her, or their common law action, in all cases where the same may be necessary.—Daw. Comp. 203. 48. Where lands held in coparcenary, joint tenancy, or tenancy in common are to be divided, the mode is by petition to the superior court.—See Prin. Dig. 258,259 ; and Daw. Comp. 219. 49. When two or more persons shall hold and possess any estate of lands in joint tenancy in this state, and one or more of said joint tenants may depart this life during the existence of said estate, the title or interest of the deceased joint tenant in said estate shall not go and become the property of the surviving joint tenant or tenants, as under the English law, but that the same shall be distributed as all other estates are, under the existing laws of this state.—Daw. Comp. 222. 50. It may be lawful for the inferior courts of the several counties in this state, when sitting for ordinary purposes, to order the sale of any slave or slaves belonging to the estate of any testator, or intes- tate, or ward, on the application of the executor or executors, or exec- utrix, administrator, administrators, or administratrix, or guardian or guardians, which shall be at public auction, and on the first Tuesday of the month, between the usual hours of sale, at the place of public sales, in the county where the letters testamentary of administration or guardianship may have been granted ; giving sixty days' notice thereof in one of the gazettes of this state, and at the door of the courthouse of the county where such sales are to be held, when it is made fully and plainly to appear that the same will be for the benefit of the heirs and creditors of such estate, or of the ward of such guardian or guardians : Provided, that a notice of such application for leave to sell be first made known in one of the public gazettes of this state, at least four months before any order absolute shall be made thereupon.—lb. 227. 51. The justices of the inferior courts in the several counties in this state, when sitting for ordinary purposes, shall be authorized to order a sale of any part or the whole of the real estate of any orphan or orphans, lunatic or idiot, illegitimate or illegitimates, upon application of the executor, or executors, or executrix, admin- istrator, or administrators, or administratrix, guardian or guardians, where it is made fully and plainly to appear that the same will be for the benefit of such orphan or orphans, idiot or lunatic, illegitimate or illegitimates, under the same rules and restrictions as are by law pointed out for the sale of real estates of testators and intestates. —Daw. Comp. 219. 52. No administrator shall be allowed to sell any slave or slaves belonging to the estate of his intestate; but where the other personal estate, together with the hire of such slave or slaves for twelve 264 COURTS OF [Part nr. months, shall be insufficient to discharge the debts due by the estate, or where one or more slaves shall be subject to distribution, and an equal division thereof cannot be made in kind, it shall be lawful for the court of ordinary, by which'administration was granted, to dirert the sale of such slave or slaves : Provided always, that each dis- tributee, or his, her, or their guardian, shall receive twenty days' notice in writing, previous to the granting of such order, to show cause, if he or they can, against such sale.—Prin. Dig. 165. 53. All intended sales of goods and chattels belonging to testa- tors or intestates, shall be published in two or more public places in the county where such effects are to be sold, and in the gazette, at least forty days before the day of such intended sale.—lb. 157. 54. No sale of estates, made by executors or administrators, shall commence before the hour of ten o'clock in the forenoon, or to be continued after the hour of four o'clock in the afternoon; nor shall any such sale be continued from day to day, unless the advertise- ment shall be so expressed, and the same be publicly made known, by the hour of four o'clock in the afternoon of the day on which such sale shall commence.—lb. 165. 55. It shall be the duty of all administrators, of sales to be made by them, to put up the property to be sold in such manner and quantity as shall be deemed most advantageous to said estate.— lb. 165 * 56. Any individual who may become the purchaser of any real or personal estate at any sale which shall hereafter be made tit public outcry by any executor, administrator, guardian, or sheriff, and shall fail or refuse to comply with the terms of such sale when required to do so, shall be liable for the amount of such pur- chase money, and it shall be at the option of such executor, admin- istrator, guardian, or sheriff, either to proceed against such purchaser for the full amount of the purchase money, or to resell such real or personal estate, and then to proceed against the first purchaser for the deficiency arising from such resale ; and in case of sheriff sales, such suit may be brought in the name of the sheriff, for the use of the defendant or plaintiff in execution, or any other person in interest, as the case may be. 57. No note or memorandum in writing shall be necessary to charge such purchaser at such sale, and who shall become such by reason of such real or personal estate being knocked off to him, as the highest bidder.---Acts 1831, 130. 58. When any executor or administrator has or may advertise that it is his, her, or their intention to apply for leave to sell any real estate, as the property of his, her, or their testator or'intestate, or having obtained an order of sale, and the said estate shall be claimed by any other person or persons, such claimant by himself, his agent, or attorney, shall file with the clerk of the inferior court, or court of * If there be two or more executors, or administrators, a sale or release by one of them shall be good against all the rest.—See Chitty's note on 2 Black. 510. Chap. 14.] ORDINARY. 265 ordinary, as the case may be, sucjj claim, on oath, a copy whereof shall be served upon such executor or administrator previous to the day of sale: whereupon it shall be the duty of said clerk to transmit such claim to the next superior court of the county where the land lies, and the right of property shall be there tried upon an issue, made up in the same manner, and under like regulations, restrictions, and penalties as are laid down in the judiciary for the trial of the right of property levied on under executions.—Prin. Dig. 167, 168. 59. Where personal property shall be advertised for sale by any executor or administrator, and the same shall be claimed in manner aforesaid, such claim shall be tried in the superior or inferior court next to be held after such claim filed in the county where such exe- cutor or administrator may reside, -provided such property is in their possession : and if in the possession of the claimant, such trial shall be had in the county where the claimant resides, under the same regulations, restrictions, and penalties as aforesaid.—lb. i68. 60. Where it shall clearly and indisputably appear that any person or persons hath or have entered into any bond, obligation, or other agreement in writing, whereby they were bound to make titles to any lands, tenements, or hereditaments, and shall die without having performed the same, or making provision therefor by will, the person or persons to whom such bond, obligation, or other agreement in writing as aforesaid was given, shall petition the court of ordinary of the county in which the executors or administrators reside, and annex a copy of such bond, obligation, or other agreement thereto, praying the court to direct the executors of such testator, or admin- istrator of such intestate, to make titles for the lands, tenements, or hereditaments expressed in the said bond, obligation, or other agree- ment: whereupon the said court shall give at least three months' notice in one of the public gazettes, and in the public places of the county of such application, and that the executors or administrators will be directed, at the court to be held at the next term, to make titles agreeably to such bond, obligation, or agreement; and if no objection shall be made thereto during the said next term, it shall and may be lawful for the executors of such testator, or the admin- istrators of such intestate, upon application made to him or them for that purpose, and upon its being made known to his, her, or their satisfaction that the contract hath been carried fairly into effect, on the part of the person or persons to whom such bond, obligation, or other agreement in writing was made, or their legal representatives, and the amount of the purchase money, or the consideration for which the said contract was entered into, shall be fully paid or per- formed, writh the concurrence of the court of ordinary of the county in which the intestate died, or resided at the time of his or her decease, to make and execute titles in fee simple for such lands or tenements, and fully and completely perform the contract and agreement of the deceased, as perfectly and effectually to all intents and purposes as the party having made the said contract might or could have done when in life: Provided always, nevertheless, that L 1 COURTS t)F [Part III. if any of the heirs or legal representatives of the deceased shall oppose or dissent to the making of such titles by the executor or administrator, such executor or administrator shall withhold and for- bear to make such title or titles, until a suit shall be instituted against him or them, and a verdict of a jury or judgment of the court shall pass against him for that purpose.—Prin. Dig. 158, 159. 61. Where there has been a contract or contracts in writing for the sale of land, and the party to whom titles are to be made dies before such titles are executed, it shall and may be lawful for the court of ordinary to order the title or titles to be made to the heirs general of the party deceased.—lb. 165, 166. 62. Where any person or persons shall depart this life, after having entered into any written agreement for the conveyance of any real estate, and the obligee shall also have departed this life, the executors of the obligor shall in like manner make and execute a conveyance or" conveyances to the heirs of the obligee.—lb. 166. 63. It shall be the duty of an executor or executors, administra- tor or administrators, in all cases where titles to lands are made, to make a fair statement thereof, describing the boundaries and situa- tion of the land, and return the same, together with the bond, obliga- tion, or other agreement in writing, which may have been taken up upon making such titles, to the court of ordinary, to be filed in the clerk's office of that court, subject to the inspection of all persons interested.—lb. 159. 64. When it shall be made to appear to the satisfaction of the court of ordinary, that any executor or executors of any estate are in insolvent circumstances, and that the estate is likely to be wasted by the improper conduct of such executor or executors, it shall be the duty of said court, by order, to compel such executor or execu- tors to give bond with approved security for the faithful execution of the trust reposed in him, her, or them by the said will, and in case of failure to comply with such order, to grant letters of admin- istration, with the will annexed, to such person as would be entitled thereto if no such executor had been appointed.—lb. 165. 65. The said court shall have power and authority, upon com- plaint made and cause shown by any security of any administrator or guardian that his principal is mismanaging his estate upon which he is the administrator or guardian, to pass an order requiring such administrator or guardian to show cause, if any they have, at the next term, why such security should not be discharged from his securityship, and such administrator or guardian compelled to give new security, or their administration or guardianship revoked, as to the said court shall seem expedient; and upon the revocation of such administration, or upon the revocation of any letters testamen- tary, as provided by law, and granting administration de bonis non, suits brought by or against the former administrator shall not for this cause be abated; but the removal of such administrator or executor being suggested on record, a sci. fa. may issue to make Chap. 14.] ORDINARY. 267 such administrator de bonis non a party, at any time after the granting of such letters de bonis non.*—Prin. Dig. 169. 66. Whenever securities for executors, administrators, or guar- dians conceive themselves in danger of suffering thereby, and petition the court of ordinary for relief, the said court shall cause the ex- ecutor, administrator, or guardian to be summonedf to appear before them at the next sitting thereof, and shall make such order, and give such relief in the case, by counter security, or otherwise, as to the said court shall seem just and equitable.—lb. 165. 67. When any court of ordinary shall know or be informed that any guardian, executor, of administrator shall waste, or in any man- ner mismanage the estate of any orphan, or deceased person, or does not take due care of the education and maintenance of such orphan, according to his, her, or their circumstances, or where such guar- dian, executor, or administrator, or his, her, or their securities, are likely to become insolvent, or where such executor, administrator, or guardian shall fail to make returns within the terms prescribed by law, particularly where no inventory and appraisement shall have been made and returned in terms of the law; said court are hereby required to order a rule to be servedj on such guardian, executor, or administrator so in default, returnable to the next regular term of said court after the passing of the same ; and upon the return of the said rule being served, the court shall proceed to investigate all the actings and doings of said guardian, executor, or administrator, (as the case may be,) and may, and are hereby authorized and em- powered to revoke the trust confided to him, her, or them, or pass such other or further order as said court may think expedient and fit, for the better managing and securing such estate, and educating and maintaining such orphan ; and upon the revocation of such let- ters testamentary, letters of administratorship, or guardianship, suits by or against either shall not for this cause abate ; but the removal being suggested of record, a scire facias may issue to make the sue- cessor of such removed person a party at any time after the appoint- ment and qualification. It shall be the duty of the several clerks of the courts of ordinary of this state to keep a regular docket in bound books of the names of such persons as are liable to make returns to said respective courts ; and the justices thereof are hereby required to call the same regularly, and to make their entries therein as is practised by the judges of the superior courts.—Daw. Comp. 205, 206. 68. In all cases where an executor, administrator, or guardian is alleged to be mismanaging the estate which they may respectively represent, and the court shall pass an order requiring such executor, * Re-enacted in 1828, as follows:—" It shall be lawful in all suits, either at law or in equity, brought against a former administrator, on whose decease letters of admin- istration de bonis non may be granted, to issue a scire facias to make such adminis- trator a party, at any time after the granting of such letters of administration de bonis non.—Daw. Comp. 223. 1 For the mode of effecting service, see sec. 68, post. t For the mode of service, see next section. 268 COURTS OF [Part III. administrator, or guardian to show cause why such executor, ad- ministrator, or guardian, should not be compelled to give security for such executorship, administration, or guardianship, or show cause why the same should not be revoked, it shall, and may be lawful for the sheriff of the county to effect service of a copy of such order personally on said executor, administrator, or guardian, as the case may be, at least twenty days before the sitting of the court at which it is made returnable. In all such cases above alluded to, when the party against whom the said order shall be taken shall remove out of the limits of the county or state, or absconds or conceals himself, or stands in defiance of a peace-officer, it shall and may be lawful, on the return of the fact by the sheriff, to cause a publi- cation of said order of court to appear in some one of the public gazettes of this state at least three times, and such publication shall be deemed equiv- aleht to such personal service.—Daw. Com. 223. This law was passed on the 20th December, 1828, and during the same session, and only two days afterward, a law was approved containing the following clause:— "When the justices of the inferior court or courts of ordinary shall or may issue a rule nisi against executors, administrators, or guardians, a personal service by the sheriff or his deputy, or a copy of the rule, shall be left by him at the executor's, administrator's, or guardian's notorious place of abode, which shall be deemed a legal service, and the justices of the inferior court or court of ordinary shall proceed to decide the cause as if a personal service had been effected ; and in case the party shall have removed without the juris- diction of the court, then a publication in one of the newspapers nearest his former place of residence, once a week for three weeks, shall be deemed a sufficient and legal notice."—lb. 223. The provisions of this clause somewhat vary the mode of effecting ser- vice as provided in the preceding one, and so far, being in point of time a subsequent enactment, must govern. 69. It shall and may be lawful for all and every executor and administrator, guardian, and trustee, for his, her, or their care, trouble, and attendance in the execution of their or either of their several duties and trusts, to take, receive, or retain, in his or their hands, a sum not exceeding fifty shillings for every hundred pounds which he, she, or they shall hereafter receive, except on the appraised value of any estate that shall come into their hands ; and the like sum of fifty shillings for every hundred pounds which he, she, or they shall pay away in debts, legacies, or otherwise; (excepting also, the de- livering up any such estate to the person or persons entitled to the same during the course and continuation of their or either of their management or administration ;) and so in proportion of any sum less than one hundred pounds : Provided, nevertheless, that no executors or administrators, guardian or trustee, shall, when they have power so to do, for his, her, or their trouble, in letting out and lending any sum or sums of money upon interest, and again receiving the moneys so lent and let out, be entitled to receive, take, or retain any sum ex- ceedingthe sum of twenty shillings for every ten pounds, for all sums arising by moneys lent to interest, so to be by them received, and in like proportion for a larger or lesser sum : and Provided also, that no executor, administrator, guardian, or trustee, who is or may be creditors of any testator or intestate, or to whom is or may be left Chap. 14.] ORDINARY. 269 or bequeathed any sum or sums of money, or other estate or effects, shall be entitled to any reward or commission for the payment or retaining to themselves any such debts or legacies.—Prin. Dig. 152, 153. 70. The commissions given by the foregoing section shall be divided among executors, administrators, guardians, and trustees, according to the proportion of the services by them respectively per- formed, to be rated and settled by the chief justice and two of the justices of general court of pleas,* in case the executors, admin- istrators, guardians, and trustees cannot agree among themselves concerning the same.—lb. 153. There is a provision in the act from which the foregoing sections are taken, that gives executors, administrators, and guardians, who may have had extraordinary trouble in the management of the estates committed to them, the privilege of " bringing an action in the court of pleas" (the superior court) for additional compensation, and limiting the verdict in such actions to fifty shillings per cent., over and above the sums allowed as above. This privilege (if privilege it may be called) is, however, seldom if ever resorted to, as, in most cases, the additional compensation to be gained would scarcely defray the expense of prosecuting such a suit.—See Prin. Dig. 153. 71. In case either party in the said courts of ordinary shall be dis- satisfied with any decision thereof, then and in all such cases such dis- satisfied party may, within four days after the adjournment of the said court, be allowed to enter an appeal by paying all costs which may have accrued, and giving security to the clerk of the said court of ordinary for such further costs as may accrue by reason of such appeal; which appeal, so entered, shall be by said clerk transmitted to the clerk of the superior court of the county in which such proceed- ings may take place at least ten days before the next superior court of said county, and which said superior court shall determine thereon at such term according to law and right. And letters testamentary, or of administration, shall not be granted or issued until the decision of such appeal by the said superior court; but the said court of ordi- nary may, pending such appeal, grant temporary letters to collect the estate of the deceased.—lb. 166. 72. All appeals taken up from the decision of the several courts of ordinary of this state to the superior court, touching the probate of willsf and granting letters of administration in which matters of fact are involved, shall be tried and determined by a special jury of the county where the case may happen, in the same way and under the same regulations as other appeals.—Daw. Comp. 213. 73. Any executors, executrix, administrators, administratrix, or guardian, whose residence shall be changed from one county to another, either by the creation of a new county, removal, or otherwise, shall have the privilege of making the annual returns required of them by law to the court of ordinary of the county in which they reside, by hav- ing previously obtained a copy of all the records concerning the estates * As the law stands, the settlement of this controversy would devolve on the superior court t When a will is disputed, it ought to be lodged with the clerk of the court of ordi- nary for safe custody.—Chitty's note on 2 Black. 508. 270 COURTS or [Part III. for which they are bound as executors, administrators, or guardians, and having had the same recorded in the proper office in the county in which they then reside, and having given new bond and security as the law directs for the performance of their duty.—Prin. Dig. 170. 74. It shall be lawful for any executor or executors, administrator or administrators, who may have fully discharged the duties assigned him or them, to petition the ordinary court for a discharge from his or their executorship or administration; upon which petition the said court shall order a citation to be issued, requiring all persons con- cerned to show cause (if any they have) why the said executor or executors, administrator or administrators, on the day therein to be named, should not be discharged; which citation shall be published in one or more gazettes of this state for the space of six months; and if no cause is shown to the contrary, and it shall also appear, from an examination into the situation of the testator's affairs and estates, that the said petitioning executor or executors, administrator or ad- ministrators, have faithfully and honestly discharged the trust and confidence reposed in him or them, that he or they shall be forthwith dismissed and released from his or their liability as executor or executors, administrator or administrators.—lb. 168. 75. If any guardian heretofore appointed, or hereafter to be ap- pointed, for any minor or minors, insane person, or lunatic, shall be desirous of obtaining letters dismissory from such guardianship, it shall and may be lawful for s-uch guardian to apply to the court of ordinary whence his letter issued, and obtain an order nisi, requiring all persons concerned to appear at the next term of said court, to show cause why he, she, or they should not be dismissed from said guardianship. And it shall be the duty of any guardian, so obtaining such order nisi, to publish the same for forty days in one or more of the public gazettes of this state, having the most extensive circulation in the county where the application is made: and when it shall be shown to the court that such publication has been made, it shall be the duty of said court strictly to examine the returns, accounts, and vouchers of such guardian, and take such further order, or grant letters dismissory, as the circumstances of the case may require.— Daw. Comp. 217. Whenever it shall be found that any guardian applying to be dismissed under the provisions of this act, shall have in his or her hands any money, property, or effects belonging to his or her ward or wards, the same shall be delivered to the court of ordinary, who, by their clerk, or such other person as the court may deem proper, willing to accept the same, shall take charge thereof, and manage the same for the benefit of such minor, lunatic, or in- sane person, until the appointment of another guardian.—lb. Whenever it shall become necessary for any clerk of the court of ordinary to take upon himself the duty of guardian as aforesaid, he shall give bond and security for the faithful discharge of his duty, as in ordinary cases of guardianship.—Daw. Comp. 217. It shall be the duty of the court of ordinary to require of all guardians good and sufficient security for the faithful discharge of their duty as guar- dians, in a sum double the supposed value of the property belonging to the ward or wards, payable to the inferior court, sitting as a court of ordinary.—lb. 76. It shall be the duty of the clerks of the superior courts of the Chap. 14.] ORDINARY. 271 respective counties in this state, to record all receipts showing a final settlement between any executor, administrator, or guardian, and the heirs, wards, or distributors of the estate the said executor, administra- tor, or guardian may represent: Provided, said receipt has been attest- ed by two witnesses, one of whom must be a justice of the peace, a judge of the inferior or superior court in this state: and such receipt, so recorded, shall be received in evidence without further proof in any of the courts of this state.—Acts 1834, p. 95. 77. Whenever any executor, administrator, or guardian shall make it appear that said original receipt is lost or destroyed, and the same is not in his, her, or their power, custody, or control, then a copy of said receipt,certified to by the clerk where the original was recorded, shall be admissible as testimony in any of the courts of law or equity in this state. Nothing in the provision of this act shall be so construed as to prevent any executor, administrator, or guardian from giving in testimony any receipt, after legal proof of its execution, though the same may not have been recorded. The clerk 6hall receive as a fee for the recording of said receipt the sum of fifty cents.—Acts of 1834, p. 95, 96. 78. When the administrator, administrators, or administratrix of the estate of any intestate shall die before he has fully administered upon the estate, and the person or persons whom the court of ordinary shall appoint administrators or administratrix de bonis non upon such unad- ministered estate, shall refuse to give the security required by law; or when the applicant or applicants for letters of administration de bonis non upon unadministered estates, shall be incapable of giving the secu- rity required by law, it shall be the duty of the court of ordinary in the county where any such case shall happen, by special order of court, to vest the final administration of such estates in the clerk of the court of ordinary of said county, or such other person as the court may appoint; and such clerk or other person as aforesaid, when such special order shall have passed, shall immediately proceed finally to administer on such unadministered estates as soon as possible, under the direction of said court, for which purpose the said clerk, or other person as aforesaid, shall have full power and authority to commence and defend suits at law, as the legal representative of such unadministered estate : Pro- vided, that in all such suits at law no other evidence shall be required of the said clerk, or other person as aforesaid, being the legal repre- sentative of any such unadministered estate, than an exemplified copy of the aforesaid special order of the court of ordinary.—Prin. Dig- 170, 171. 79. Such clerk, or other person as aforesaid, when invested with the administration of an estate, according to the provisions of this act, shall be allowed such compensation for their services as is allowed to all other executors and administrators by the law of this state.—lb; 171. Of Wills. 80. Any person having in possession the will of a deceased person, who shall neglect to produce the same to be proved upon application 272 COURTS OP [Part III. to the superior court* of the county where such will ought to be proved, process as for contempt shall issue, and the person shall be fined and imprisoned until the will shall be delivered.—Prin. Dig. 155. t 81. It shall be the duty of all and every witness to any will or wills to be and appear at the court of ordinary, on the regular day, for the probate of the said will, ready to testify of and concerning the validity of the same ; and the courts of ordinary in this state shall have, and they are hereby vested with the same powers and authority that are vested in the superior or inferior courts, for the production and punishment of any witness or witnesses, that may be needful to carry into effect the business of the said courts of ordinary.—lb. 167* 82. Whereas it often happens that persons left as executors to wills refuse to qualify, to the delay of the just claims of creditors, and to the injury of the estate of such testator: for remedy 'whereof, it shall be the duty of all and every such person, so left as executor, to be and appear at the court of ordinary, at the first regular court, for the probate of the same: and in case any such person, left as executor, should not qualify within one year after the death of the testator, then and in that case their right to qualify shall be considered to be abated and destroyed, and the said courts are hereby prohibited from ad- mitting them to the same.—lb. 1G7. 83. It shall and may be lawful for any executor, named in the will of the testator, to qualify under the said will at any time : Provided, the qualification of one or more takes place within twelve months after the decease of the testator: Provided also, that the executor and executors who do not qualify within twelve months from and after the decease of the testator one of whom shall do so within twelve months after the decease of the only qualified executor.— Ib. 167. 84. Two or more of the justices of the inferior courts shall be authorized, in vacation, to admit any executor of a will to prove the same before them, but there shall be a court, and at a regular time of meeting thereof, before the same shall be admitted to record.— Ib. 169. All witnesses to prove the execution of a will must be such as are admissi- ble in trials at common law.—Prin. Dig. 563, (n;) and see note on sec. 91, post. Such witnesses may be sworn and examined in the following manner:— You shall true answers make to all lawful questions that shall be asked you by the court, or its authority, touching the execution of the last will and testament of A. B. now presented for probate : So help you God. The court should then propound the following material questions to bean- swered in the affirmative, with such others as they may think proper to ask : 1. Did you see A. B. sign,f seal, publish, and declare this writing to be and contain his last will and testament ? i 2. Did you sign the same as a witness, in the presence of the testator? 3. Was he, at the time, of sound dsiposing mind and memory 1 * Query. Is not this authority vested in the court of ordinary ?—See ante, sec. 1 and 2, and sec. 81, post. t The testator's name may be signed by another person, but it must be done in his presence and by his express directions, which must be also proven. Chap. 14.] ordinary. 273 4. Did he execute the same freely, without compulsion, so far as you know or believe ? The will being duly proven, the court should direct the clerk to enter the probate thereof, which may be done as follows; making corresponding en- tries upon the minutes of the court:— Georgia, ) Court of Ordinary, Baldwin County. J November Term, 1835. The within last will and testament of A. B. having been duly proven at this regular term in open court, upon the oaths of C. D., E. F., and G. H., ordered that the same be admitted to record. 85. In case any person in this state shall hereafter happen by his will to appoint his debtor to be his executor, such appointment shall not, in law or equity, be construed or deemed to be a release or ex- tinguishment of any debt due to the testator, unless the testator shall, in his will, expressly declare his intention to devise, bequeath, or re- lease such debt.—Prin. Dig. 151. 86. No executor or executors in this state shall, either at law or in equity, be entitled to any beneficial interest, under and by virtue of the will or testament of their testator, not therein expressly men- tioned, except their commissions as now allowed by law; but they shall hold their residuum or undevised real or personal estate as a trus- tee for the distributees or next of kin of their deceased testator or tes- tatrix.—Daw. Comp. 223. 87. When any person shall make a will in writing without ap- pointing any executor or administrator therein, or such executor or executors shall refuse to qualify, the court of ordinary of the county, wherein such will shall be proved shall, on application, grant letters of administration, with the will annexed, to such person or persons as w ould have been entitled thereto if the deceased had died intes- tate. And if any person shall die intestate, the register of the county wherein the will of such person (had he or she left one) would have been proved, shall grant letters of administration to them who would have been entitled thereto.—Prin. Dig. 155. By this law, it would seem that the administration is confined to the county where the deceased resided at the time of his death. 88. Every executor or administrator with the will annexed, at the time of proving the will, or granting administration, shall take the following oath: " 1 do solemnly swear that this writing contains the true last will of the within named A. B., deceased, so far as I know or believe ; and that I will well and truly execute the same, by paying first the debts and then the legacies# contained in the said will, as far as his goods and chattels will thereunto extend, and the law charge me; and that I will make a true and perfect inventory of all such goods and chattels :f So help me God."—Prin. Dig. 155. 89. Wills are of two sorts—written, and verbal or nuncupative: of which the former is committed to writing; the latter depends merely upon oral evidence, being declared by the testator in extremis before a sufficient number of witnesses, and afterward reduced to writing. * See sec. 95. t See the note to the forms of administrator's bond and letters of administration, at the close of this chapter. m m 274 COURTS OF [Part III. A codicil is a supplement to a will; or an addition made by the testator, and annexed to, and to be taken as part of a testament; being for its explanation, or alteration, or to make some addition to, or substruction from, the former dispositions of the testator. This may also be either written.or nuncupative. 2 Black. 500. Nuncupative Wills. 90. But as nuncupative wills and codicils are liable to great impo- sitions, and may occasion many perjuries, the statute of frauds, 29 Car. II., c. 3,* hath laid them under many restrictions; except when made by mariners at sea, and soldiers in actual service. As to all other persons, it enacts, 1. That no written will shall be revoked or altered by a subsequent nuncupative one, except the same be in the lifetime of the testator reduced to writing, and read over to him, and approved ; and unless the same be proved to have been so done by the oath of three witnesses at the least; who, by statute 4 & 5 Ann, c. 16, must be admissible upon trials at common law. 2. That no nuncupative will shall in anywise be good where the estate be- queathed exceeds 30Z. unless proved by three such witnesses, present at the making thereof, and unless they, or some of them, were spe- cially required to bear witness thereto by the testator himself; and unless it was made in his last sickness, in his own habitation or dwell- ing-house, or where he had been previously resident ten days at the least, except he be surprised with sickness on a journey, or from home, and dies without returning to his dwelling. 3. That no nun- eupative will shall be proved by the witnesses after six months from the making, unless it were put in writing within six days. Nor shall it be proved till fourteen days after the death of the testator, nor till process hath first issued to call in the widow, or next of kin, to con- test it if they think proper.—2 Black. 500, 501. Written Testaments. 91. As to written wills, they need not any witness of their pubfica- tion. 1 speak not here of devises of lands, which are quite of a dif- ferent nature, being conveyances by statute unknown to the feudal or common law, and not under the same jurisdiction as personal tes- taments. But a testament of chattels, written in the testator's own hand, though it has neither his name nor seal to it, nor witnesses pres- ent at its publication, is good ; provided sufficient proof can be had that it is his own handwriting. And though written in another man's hand, and never signed by the testator, yet if proved to be according to his instructions and approved by him, it hath been held a good tes- tament of the personal estate.—2 Black. 500, 502. All devises and bequests of any lands or tenements shall be in writing and signed by the party so devising the same, or by some other person in his pres- ence, and by his express directions, and shall be attested and subscribed in the presence of the said devisor by three or four credible witnesses, or else they shall be utterly void and of none effect.f—Prin. Dig. 561. * For this statute, see Prin. Dig. 560, or Schley's Dig. 252. t All persons, male and female, are esteemed competent witnesses to prove a will, save only such as are under the usual age of discretion, such as are infamous, as per- jured persons and the like, and such as are presumed to bear affection, as kindred, ten- ants, servants, and the like. A legatee is reputed a competent witness to prove any other part of a will but his own legacy, but not otherwise. Chap. 14.] ordinary. 275 And moreover, no devise in writing of lands, tenements, or hereditaments, or any clause thereof, shall at any time be revocable, otherwise than by some other will or codicil in writing, or other writing declaring the same, or by burning, cancelling, tearing, or obliterating the same by the testator himself, or in his presence, and by his directions and consent; but all devises and be- quests of lands and tenements remain and continue in force until the same be burnt, cancelled, torn, or obliterated by the testator, or by his directions, in man- ner aforesaid, or unless the same be altered by some other will or codicil in writing, or other writing of the devisor, signed in the presence of three or four witnesses declaring the same, any former law or usage to the contrary notwithstanding.—Prin. Dig. 561. Revocation of Testaments. 92. No testament is of any effect till after the death of the testator. And therefore, if there be many testaments, the last overthrows all the former; but the republication of a former will revokes one of a later date, and establishes the first again.* Hence it follows that testaments may be avoided three ways: 1st, If made by a person labouring under any of the legal incapacities, (see post, sec. 93;) 2d, By making another testament of a later date ; and 3d, By can- celling or revoking it.—2 Black. 502. There can be no doubt, that if a will duly executed is destroyed in the life- time of the testator, without his authority, it may be established upon satis- factory proof thereof and of its contents. What will be a cancellation by a tes- tator, must depend upon the evidence of his intent to destroy and determine its operations.—Chitty's note on 2 Black. 502. It hath also been held, that, without an express revocation, if a man who hath made his will, afterward marries, and hath a child, this is a presumptive or implied revocation of his former will which he made in a state of celibacy. —2 Black. 502. The above decision was confirmed by the legislature of 1834, by the pas- sage of the following act:— " In all cases when a person, after having made a willj shall marry, or have born a child or children, and no provision shall be made in said will for the wife after married, or child or children after born, and shall depart this life without revoking said will, or altering it subsequent to said after marriage, or subsequent to the birth of said after-born child or children, thejustices of the inferior court of the county while sitting as a court of ordinary, having juris- diction of the case, shall pass an order declaring that such person died intes- tate; and his estate shall be distributed under the laws of this state regula- ting the distribution of intestates'estates. Provided, nevertheless, that either party, being dissatisfied with the decision of the said court, may enter an appeal to the superior court, as in other cases."—Acts 1834, p. 88. If a feme sole makes her will and afterward marries, such subsequent mar- riage is esteemed a revocation in law, and entirely vacates the will; which would not revive on the death of her husband.—2 Black. 499. Persons capable of making a Will. 93. No objection can be admitted to the will of an infant of four- teen merely for the want of age ; but if the testator was not of sufficient discretion, whether at the age of fourteen or four-and- twenty, that will overthrow his testament. Madmen, or otherwise non compotes, idiots or natural fools, persons grown childish by reason of old age or distemper, such as have their senses besotted * It is doubtful whether, by cancelling a second will, the first is revived ; at law it would be so.—Chitty's note 17, on 2 piack. 502. 276 COURTS OF [Part III. with drunkenness,—all these are incapable, by reason of mental disability, to make any will so long as such disability lasts. But if a testator be sub- ject to insanity, a will made during a clear lucid interval will be established. It is also said that such persons as are born deaf, blind, and dumb, are in- capable of making a will.—2 Bla. 497. A feme covert is incapable of making a will without the consent of her hus- band, and even then her powers are very much restricted.—2 Black. 498. Appointment of Executors. 94. An executor is one to whom another man commits by will the ex- ecution of that his last will and testament. And all persons are capa- ble of being executors, that are capable of making wills, and many others besides, as feme coverts, and infants. But no infant can act as such till the age of seventeen. This appointment of executor is essential to the making of a will; and it may be performed either by express words, or such as strongly imply the same. The executor may appoint one or more executors, either over his whole property or of different kinds, as one executor in respect of his lands, and another of his debts. But when a number are appointed in conjunction, they are in law consid- ered in the light of an individual person.—Chit, note on 2 Black. 504. But if the testator makes an incomplete will, without naming an executor, or if he names incapable persons, or if the executor named refuse to act; in any of these cases, the ordinary must grant administration with the will annexed to some other person, whose duties are very little different from those of an executor.—2 Black. 503, 504. Of Legacies. 95. In case of deficiency of assets, all the general legacies must abate proportionably, in order to pay the debts; but a specific legacy (of a piece of plate, a horse, or the like) is not to abate at all, or allow any- thing by the way of abatement, unless there be not sufficient without it. Upon the same principle, the legatees who have been paid their leg- acies are afterward bound to refund a rateable part, in case debts come in, more than sufficient to exhaust the residuum after the lega- cies paid.—2 Black. 513. If the legatee dies before the testator, the legacy is a lost or lapsed legacy, and shall sink into the residuum. And if a contingent legacy be left to any one, as when he attains, or if he attains the age of twenty-one, and he dies before that time, it is a lapsed legacy. But a legacy to one, to be paid when he attains the age of twenty-one, is a vested legacy, an interest which com- mences in prcesenti, although it be solvendum in futuro ; and if the legatee dies before that age, his representatives shall receive it out of the testator's personal estate, at the same time that it would have become payable in case the legatee had lived.—2 Black. 513. 96. An administrator with the will annexed shall enter into bond with good and sufficient security, in a sum equal to the value of the estate at least, the condition of which bond shall be in the form fol- lowing, to wit: " The condition of this obligation is such, that if the above bound C. D., administrator with the will annexed of the goods, chattels,* and credits of E. P., deceased, do make or cause to be * See note to forms at the close of this chapter. Chap. 14.] ORDINARY. 277 made a true and perfect inventory of all and singular the goods, chattels, and credits of the said deceased, which have or shall come to the hands, or possession, or knowledge of the said C. D., or into the possession of any other person for him; and the same, so made, do exhibit to the court of ordinary for said county, at such time as he shall be hereunto required by the said court of ordinary, and the same goods, chattels, and credits do well and truly administer accord- ing to law, and make a just and true account of his acting and doings, when by law required ; and further, do well and truly pay and de- liver all the legacies contained and specified in the said will, as far as the goods, chattels, and credits will extend or the law require, then this obligation to be void, else to remain in full force." Which bond shall be made payable to the court of ordinary for the county, and their successors in office, and recorded in the clerk's office of said court,* and may be sued for'from time to time by any person injured by the breach thereof, until the whole penalty be recovered; and damages sustained, being assessed on such suit by the verdict of a jury, may be levied by execution, and paid to the party for whom they were assessed.—Prin. Dig. 155, 156. 97. The inferior courts in the several counties in this state shall have power to inquire into the circumstances of the poor, bind out orphans, and appoint guardians, in the manner pointed out by law, and appoint overseers over the poor: Provided\ that no justice of the inferior court shall be appointed an overseer of the poor. And the said justices and overseers of the poor shall have power to levy annually a tax, and assess all taxable property returned in their respective counties, not exceeding one-eighthf part of the general tax of such county annually, which shall be collected by the tax collector of the county, who shall be allowed at and after the rate of six and a quarter per centum on the nett amount of such collection, and who shall at the first inferior court after the first Monday in May annually make to the justices of the inferior court a true return of the state of the collection of such tax, and a report in writing of his proceedings, and shall therein fairly state the amount of his collection ; and that the tax collector's statements and collections, so made up, shall be filed on record in the clerk's office, open to the inspection of any per- son interested therein. And in case any person or persons shall refuse or neglect to pay such tax, it shall and may be lawful for the sheriff of the county to distrain for the same, in like manner as the collectors are authorized to distrain for the general tax, and shall have the like commissions therefor, and the money arising from the said tax shall be paid into the hands of the said overseers for the relief of the poor; and the said overseers shall once in every year make up their accounts, and lay the same before the justices of the said court, who shall express their approbation or disapprobation of the same on the back of the said accounts so to be produced.—Prin. Dig. 157, 158, 98. When it shall appear to the court of ordinary that the annual * See post, sec. 106. t See Prin. Dig. 172, 173. 278 COURTS OP [Part III. profits of the estate of any orphan is not sufficient for the education and maintenance of such orphan,* it shall be the duty of such court forthwith to bind out the said orphan for the whole or such part of the time of such orphan's minority as to them shall seem best; and the person to whom such orphan shall be bound shall undertake to clothe and maintain such apprentice in such manner as the said court shall direct; and shall cause such apprentice to be taught to read and write the English language, and the usual rules of arithmetic. And in all cases where it shall appear to the court that any person to whom any orphan shall be bound, in manner aforesaid, shall misuse or ill-treat such orphan, or shall fail to comply with the condition on which such orphan was bound, it shall be the duty of the said court, on due notice and proof thereof, to take the said orphan out of the possession of such person, and bind him or her to some other person.—Prin. Dig. 161. The right of a minor to choose a guardian can only arise in Georgia when the infant has no natural guardian, and the father is dead without having as- signed him one under the statute, either by deed or will, or where the nat- ural guardian may refuse or fail to give bond and security under the act of 1823. In either of these events the infant, whether he be under or over the age offourteen years, may, if he have sufficient discretion, appear before the court of ordinary, and choose or elect a guardian for himself, which election is placed on the minutes of the court, and an order made, that letters of guardianship do issue to the person so chosen, on his giving bond and se- curity and taking the oath prescribed by law. In the latter case, however, such person is only guardian of the property, and not of the person of such infant. This election of the infant is not conclusive upon the court. For if the person chosen be, in the opinion of the court, an improper person, the court will reject him; and if the infant will not choose a proper person, the court appoints for him.—Schley's Dig. 70. 99. Although by the above law, (sec. 98,) the power of the court of ordinary to bind apprentices seems to be confined to orphans, and there is nowhere among our laws an express authority given them in any other case, yet binding out bastards by them is so intimately connected with this trust that it may be safely done. Parents have also the right to bind their children apprentices; and where they are unable to maintain them, it is their duty, the performance of which the good order of society, and the future welfare of the child have a right to demand.—Clayton's Justice, 14. 100. One cannot be bound an apprentice without deed.—1 Salk. 6S. An apprentice must be retained by the name of an apprentice expressly; otherwise he is no apprentice, though he be bound.—Dalt. c. 58. By the common law persons under the age of twenty-one years could not bind themselves in such a manner as to entitle their masters to an action for a breach of any covenants of their indentures ; and therefore it has been * If the children have sufficient property they must be supported out of it, for the mother is not bound to support them as the father is. If they have no property, or not enough for the income thereof to support and educate them, the court of ordinary may bind them out, unless the mother will consent to support and educate them herself.— Schley's Dig. 68. Chap. 14.] ORDINARY. 279 customary for the parent or friends to become party to the indenture in their behalf.—Bac. Abr. Master and servant. But if his father or other person doth covenant for him, such covenant shall bind the father or such other person, as in case of Whitley and Loftus. In the indenture of apprenticeship, the father covenants to pay the appren- ticeship money, the son covenants to account for his master's goods; and in the conclusion, the father and son each bind themselves for the true per- formance of all covenants therein. By the court: the end of binding the father was to answer wrongs done by the son, and he must answer for any; and the covenant that each did bind himself must be so, where the son is bound to perform the thing for which the covenant was made, and this clause is usually inserted, that the covenants may be taken distributively, to wit, that each of the covenanters should perform his part; and this makes the covenant of the son bind the father, who covenanted for him as well as himself.—8 Mod. 190. So in case of Branch and Ewington, Dug. 500, it was held by Lord Mans- field, in an action by the master against the father of the apprentice, bound by indenture in the common form, that the father was liable for the elope- ment of the son from the service of his master; notwithstanding there were no express covenants on the part of the father to be answerable for such elopement, and although the statute had given the master another remedy, by a retribution in services. As the infant may be bound by indenture, so the apprenticeship may be determined by consent of all the parties concerned, which, in the case of parish poor children, includes the parish officer; in other cases, the father, or guar- dian, master and infant.—Burrow's Settlement, 562, 760. But a covenant between the master and a third person, the infant not being party, maketh not an apprenticeship.—2 Salk. 479. Besides the express covenants usually inserted in indentures of apprentice- ship, which the master and apprentice are mutually bound to perform, there exists other relations between them, which deserve to be noticed. Thus a master may by law chastise and correct his apprentice for neg- lert or other misbehaviour, so it be done with moderation.—1 Black. 428. So it hath been determined that where an apprentice became lame, and in the opinion of surgeons incurable, the master ought not to be discharged of him, for the master takes the apprentice for better, for worse, and should provide for him in sickness and in health.—Str. 99. So it was adjudged that a master could not compel his apprentice to go beyond sea, if he did not go with him; unless the nature of the apprentice- ship imported it; as if the master was a mariner or merchant adventurer.— Brown, 67; Hob. 134. It seems now to be settled that an apprenticeship, being a personal trust, becomes determined by the death of the master, unless there are special words in the indenture to the contrary.—Bur. Set., case 320. But although it is held that the covenant for instruction fails by the death of the master, yet the apprentice continues so as to have maintenance out of the estate of his master; on the covenants to maintain.—See 1 Salk. 66. The above points appear to be recognised in the case of Baxter (widow and executrix) against Burfield in debt on a bond conditioned for Matthias Auderson's performance of the covenants in an indenture of apprenticeship, whereby he was bound to the plaintiffs testator, who was a mariner; the defendant pleaded that Anderson served faithfully to the death of the tes- tator. The plaintiff replied, that since the death of the testator, Anderson had absconded from her services. To this replication the defendant demurred. And after argument at bar, Lee, C. J., delivered the resolution of the court, that they were all of opinion the defendant should have judgment, and that the executrix could maintain no such action. The binding was to the man to learn his art and serve him, without any mention of executors ; and as the words are confined, sb is the nature of the contract, for it is a fiduciary, and the apprentice is bound from a personal knowledge of the integrity and ability of the master. 280 COURTS OP [Part III. If an apprentice flee from his master's service, and gain money by the same or a different occupation, the master is entitled to receive it.— 1 Vezey, 83. Enticing away an apprentice fromjhis master is not an offence of a public nature, for which an indictment will lie, but the party's remedy is by an action on the case, which he may well maintain.—6 Mod. 182; Bur- row, 1306. 10!. It shall not be lawful for any clerk of the court of ordinary to exercise the duty of that office, until they shall have respectively given bond and sufficient security to the justices of the inferior courts of each county respectively, made payable to his excellency the gov- ernor for the time being, and his successors in office, in the sum of two thousand dollars, for the faithful performance of their duty respect- ively. It shall be the duty of the justices of the inferior courts of each county in this state respectively, or any two or more of them, to take such bond and security according to the provisions of the foregoing section, conditioned well and truly to perform the duties required of them by law. The said bonds, so taken as aforesaid, shall be liable to suit and recovery in the same way, and under the same provisions and restrictions, as are pointed out by law for recovery upon bonds given by clerks of the superior and inferior courts for the performance of their duty as clerks.—Prin. Dig. 181. 102. When any vacancy shall happen in the office of clerk of the court of ordinary, by death, resignation, or otherwise, it shall and may be lawful, and it is hereby made the duty of the justices of the infe- rior courts, or a majority of them, in the county where such vacancy may happen, to proceed without delay to appoint some fit and proper person to fill such vacancy, administer to the person so appointed the same oaths, and take like bond and security as heretofore required by law of the clerks of the court of ordinary of this state, and trans- mit the same to his excellency the governor; and the person so appointed shall be deemed, held, and considered as duly qualified to discharge all the duties required of a clerk of the court of ordinary of the.-county for which he may be appointed, and shall be entitled to the same fees, and be subject to the same pains and penalties for misconduct in office, as if such person had been duly elected and com- missioned by his excellency the governor; and shall continue in office for and during the term for which his predecessor was elected, and until a successor shall be duly elected, commissioned, and qualified. —Daw. Comp. 204. 103. It shall be the duty of the clerks of the courts of ordinary in each county respectively, to enter and register in a book to be kept for that purpose the names of all persons who may report themselves to him, or who may be reported by their parents or guardians, as well as all those who may hereafter be born within the said county, and who may be reported as aforesaid, upon due proof being made by affidavit or oath to the said clerk of the said birth; and the said clerk shall be entitled to take and receive for each registry which he shall be called on to make, the sum of twenty-five cents.—lb. 113. Chap. 14.] ordinary, 281 The parents or guardians of children now in life, or who may be hereafter born, may, upon application to the clerk of the court of ordinary aforesaid, and upon payment of the aforesaid sum to the said clerk, require him to enter the name of the said child, with the time and place of his or her birth.—lb. The said clerk shall forfeit and pay the sum of five dollars for each and every refusal to enter the said births as aforesaid, upon such application be- ing made.—lb. 104. The said entry, so as aforesaid made, shall be received and held as evidence of the birth and age of such person or persons as it purports to represent, in any court of law or equity in this state, by the production either of the original book of entry, or of the certifi- cate of the same, under the hand and seal of the said clerk ; and for which certificate the said clerk shall receive twenty-five cents.—lb. 105. It shall be the duty of the clerks of the court of ordinary of the several counties of this state to record in a book to be kept for that purpose, all guardians' and administrators' bonds taken before the court of ordinary of their several counties, within six days after the same is executed.—Daw. Comp. 115. All the records shall be kept in a book well bound.—Prin. Dig. 116. 106. The clerks of the courts of ordinary in the several counties shall grant marriage licenses, directed to any judge, justice of the in- ferior court, justice of the peace, or minister of the Gospel, to join persons of a lawful age, and authorized by the Levitical degrees* to be joined together in matrimony. And where such persons intend- ing to marry shall have the banns of marriage published three times in some public place of worship, it shall be lawful for such judge, justice of the inferior court, justice of the peace, or minister of the Gospel, being duly certified thereof, to marry the persons whose banns have been so published; and any person marrying any couple without such license, or publication of such banns, shall forfeit Jive hundred dollars, to be recovered for the use of the academy of the county, by action of debt in any court having cognizance thereof, in the name of the commissioners of such academy.—Prin. Dig. 159, 160 ;f and see ante, p. 1, c. 10, s. 28. 107. It shall be the duty of all ministers of the Gospel, judges, jus- tices of the inferior court, or justices of the peace, who shall hereafter join together any persons in the bonds of matrimony, to make a re- turn on the marriage license of the actual intermarriage of the parties, and the day on which the same was solemnized, to the clerk of the court of ordinary, whose duty it shall be to enter the same in a book to be kept by him for that purpose, for which he shall be entitled to * See note, part i, c. 10, s. 4. t It has been doubted by some whether this statute will justify an officer in marry- ing a couple in one county under licenses issued from another. The reasons for such doubt are not founded in the words of the statute. Cases, however, have occurred in this state, of the marriage ceremony having been performed by a person holding the office of justice of the inferior court for a certain county, which ceremony or attempt at the solemnization of marriage was at a place beyond the jurisdictional limits of his commission as a justice of the inferior court. Such an act is void, and can have no binding effect. The issue of such a supposed marriage never could inherit from the father. n n 282 COURTS OP [Part III, ask and receive the sum of thirty-one and a quarter cents, which shall be paid when such license shall be granted; which registry, or a certified copy thereof, shall be admitted as evidence of such mar- riage in any court where the solemnization of such marriage shall be called in question.—Prin. Dig. 166. 108. Form of an Administrator's Bond. Georgia, ) Know all men by these presents, that we, James Baldwin County. ) Saunders, Julius Smith, and Robert Anderson, are held and firmly bound unto the honourable the justices of the infe- rior courts of said county, sitting for ordinary purposes, and their sue- cessors in office, in the just and full sum of ten thousand dollars; for the payment of which sum, to the said justices as aforesaid and their successors, we bind ourselves, our heirs, executors, and administrators, in the whole, and for the whole sum jointly, and severally and firmly, by these presents. Sealed with our seals, and dated this tenth day of August, eighteen hundred and thirty-five. The condition of the above obligation is such, that if the above bound James Saunders, administrator of the estate, real* and personal, of John Stiles, late of this county deceased, do make a true and * Having materially varied the form of this bond, as well as other forms that follow it, it is proper that the reasons for such innovation upon forms so long in use should be given. By the act of 1804, (see ante, sec. 40,) and at various other times anterior thereto, the legislature of Georgia enacted that real and personal estate should be placed upon the same footing as to distribution, which was intended to abolish that partiality observed by the English rule of law in relation to the descent of estates, by which the whole real property vests in the eldest male heir, to the exclusion of all others. From this rule originates the distinction between real and personal estate, the former of which, by the law of England, is not subject to distribution, nor, in general, to the payment of the intestate's debts, and consequently not liable to administration. By our law, that dis- tinction between real and personal estate no longer exists; but both are on the same footing as to distribution and the payment of debts, and are equally subject matter of administration ; notwithstanding the idea of this distinction between them is still preserved (without reason) in many forms used in our state, among which the forms of letters of administration and administrator's bonds are remarkable instances. It is known that persons taking administration of estates under our laws, go into possession and control of all the estate of their intestate, making indiscriminate sale and disposition of all such estate, real and personal; and yet the courts of ordinary, fol- lowing these old forms, take bond of such administrator in the conditions of which no allusion is made to any thing other than personal goods and chattelsthereby giving such administrator the custody of property (often the most valuable portion of estates) for which he is not, by the terms of his bond, held to any accountability whatever. The same in regard to letters of administration. The administrator is therein authorized to administer the goods and chattels, rights and credits, but nothing further. It might be asked by what authority does an administrator sell and convey the real estate of his intestate 1 Certainly not by the authority of his letters as issued in the usual form, for by the express terms of that authority he is restricted to the personal estate. It is easy to perceive that a question might arise here, touching the validity of ad- ministrator's deed to land sold and conveyed under such letters ; and it is remarkable that such questions have not been frequently presented before our courts of law. We have heard of but one, which was decided in Newton superior court some years since, against the authority to make titles under such letters. Without swelling this note further, we respectfully submit to the consideration of the courts of ordinary these amended forms, which have been prepared under the best legal advice, and which, we doubt not, will be adopted in lieu of those heretofore used. See Judge Lamar's note on this subject, Clayton's Justice, page 162. Chap. 14.J ORDINARY. 283 perfect inventory of all the estate, both real and personal, of said deceased, which have, or shall come to the hands, possession, or knowledge of the said James Saunders, or unto the hands or pos- session of any other person or persons for him ; and the same, so made, do exhibit into the said court of ordinary, when he shall be thereunto required ; and such estates do well and truly administer according to law, and do make a just and true account of his actings and doings therein, when he shall be thereunto required by the court of ordinary for said county, and all the rest of the said estate, which shall be found remaining upon the account of the said administration, the same being first allowed by the court, shall deliver and pay to such person or persons, respectively, as are entitled to the same by law; and if it shall hereafter appear, that any. last will and testament was made by the said deceased, and the same be proved before the court, and the executors obtain a certificate of the probate thereof, and the said James Saunders do, in such case, if required, render and deliver up the said letters of administration, then this obligation to be void, else to remain in full force. Attest, James Saunders. (L. S.) Richard Roe, Julius Smith. (L. S.) Clerk, C. O. Robert Anderson. (L. S.) 109. Form of Letters of Administration. Georgia, ) By the honourable the justices of the inferior Baldwin County. ] court of said county sitting for ordinary pur- poses. Whereas, John Stiles, late of this county, deceased, died intestate, having, while he lived and at the time of his death, divers estates,* real and personal, within the county aforesaid, by means whereof the full disposition and power of granting the administration of the estateof the saiddeceased,and also a final dismission from the same, to the court aforesaid does of right belong; they, desiring that the same may be well and truly administered and legally disposed of, do hereby grant unto James Saunders, administrator, full power by the tenor of these presents to administer the entire estate, both real and per- sonal, of said deceased, which to him in his lifetime and at the time of his death did belong, and to ask, demand, sue for, recover, and receive the same, and to pay the debts in which the deceased stood bound, so far forth as his assets will extend, according to law, and then the balance jointly to pay over to the legal heirs and distribu- tees of the said deceased. And the said James Saunders, having given bond and security and taken the oath and performed all other requisites required by law, necessary to his just qualification as ad- ministrator, he is, by order of said court, and by virtue of these presents, ordained, constituted, and appointed administrator of the whole estate, both real and personal, of said deceased. Witness the honourable James Murray, one of the justices of the (L S ) cour' ordinary, this the tenth day of August, eighteen * ' *' hundred an I thirty-five. v Richard Roe, clerk C. O. * See note on preceding form. 284 courts or [Part IIL 110. Form of the Bond of an Administrator with Will annexed. Georgia, ) Know all men by these presents, that we, James Baldwin County, j Saunders. Julius Smith, and Robert Anderson^ are held and firmly bound unto the honourable the justices of the inferior court of said county, sitting for ordinary purposes, and their successors in office, in the just and full sum of ten thousand dollars, for the payment of which sum to the said justices aforesaid, and their successors, we bind ourselves, our heirs, executors, and admin- istrators, in the whole and for the whole sum, jointly and severally, and firmly, by these presents. Sealed with our seals, and dated this tenth day of August, eighteen hundred and thirty-five. The condition of this obligation is such, that if the above bound James Saunders, administrator with the will annexed of the estate, real* and personal, of John Stiles, deceased, do make, or cause to be made, a true and perfect inventory of all'the estate, both real and personal, of the said deceased, which have or shall come to the hands, or possession, or knowledge of the said James Saunders, or into the possession of any other person for him ; and the same, so made, do exhibit to the court of ordinary for said county, at such time as he shall thereunto be required by the said court of ordinary; and the said estates do well and truly administer according to law, and make a just and true account of his actings and doings, when by law re- quired ; and further, do well and truly pay and deliver all the lega- cies contained and specified in the said will, as far as the said estates will extend or the law require, then this obligation to be void, else remain in full force. Attest, James Saunders. (L. S.) Richard Roey Julius Smith. (L. S.) Clerk C. O. Robert Anderson. (L. S.) 111. Form of Letters Testamentary. Georgia, ) By the honourable the inferior court of said Baldwin County, j county sitting for ordinary purposes. To all to whom these presents shall come, greeting. Know ye, that on the tenth day of August, in the year of our Lord one thousand eight hundred and thirty-five, the last will and testa- ment of John Stiles, late of said county, deceased, was exhibited in open court, and in common form of law proved and admitted to re- cord, a copy of which is hereunto annexed ; and administration of the estate, realf and personal, of said deceased, was granted to James Saunders, the executor in and by said will named and appointed, he having first taken the oath and performed all other requisites required by law, he is, by order of said court, and by virtue of these presents, legally authorized to administer the estate, real and personal, of the said deceased, according to the tenor and effect of the said will and testament, and according to law. And he is hereby re- quired to render a true and perfect inventory of all the estate, both real and personal, of the said deceased, and have the same appraised * See note on sec. 109 ante. t Ibid. Chap. 14.] ORDINARY. 285 and returned to this court according to law, and to render a true and correct account, to the said court, of his actings and doings, yearly, and every year, until his administration is fully completed. Witness the honourable James Murray, one of the justices of the , ^. said court of ordinary, this the tenth day of August, in ' ' '' the year of our Lord eighteen hundred and thirty-Jive. Richard Roe, Clerk C. O. 112. Guardian's Bond. (To be in double the supposed value of the ward's estate.) Georgia, J Know all men by these presents, that we, James Baldwin County, j Saunders, Julius Smith, and Robert Anderson, are held and firmly bound unto the honourable the inferior court sitting as a court of ordinary for said county, and their successors in office, in the just and full sum of five thousand dollars, for the pay- ment of which sum, to the said justices as aforesaid and their sue- cessors in office, we bind ourselves, our heirs, executors, and adminis- trators, jointly and severally, firmly by these presents, sealed with our seals, and dated this tenth day of August, one thousand eight hundred and thirty-five. The condition of the above obligation is such, that whereas the said James Saunders is this day appointed guardian to William Stiles, orphan of John Stiles, deceased, (or illegitimate child, or idiot, or lunatic, as the case may be,) now if the said James Saun- ders, do well and truly demean himself as a guardian aforesaid, agreeably to letters of guardianship bearing even date herewith, and agreeably to law in such case made and provided, the above obliga- tion to be void, otherwise to remain in full force and virtue. Attest, James Saunders. (L. S.) Richard Roe, Julius Smith. (L. S.) Clerk C. O. Robert Anderson. (L. S.) 113. Letters of Guardianship. Georgia, ) By the honourable the inferior court of said county Baldwin County, j sitting for ordinary purposes. To James Saunders, of the said county, greeting. '"'Whereas, William Stiles, orphan of John Stiles, deceased, (or illegitimate child, or idiot, or lunatic, as the case may be,) is pos- sessed in his own right of a considerable estate, by means whereof the power of granting the guardianship of the said William Stiles to us is manifestly known to belong, and for the better securing the estate, and more ample maintenance and education of said orphan, and from the integrity and confidence reposed in you, we do hereby commit the tuition, education, and guardianship of the said William Stiles, to you, the said James Saunders, you assenting thereto by your acceptance of these letters: herein charging you, that you maintain and cause to be educated said orphan, in such manner as shall be suitable to his interest and circumstances, during his minority; and that you inquire into, and take charge of his estate, both real and personal, and all other things to do, which by law you ought to do, 286 courts or [Part III. for your said ward; of all which a true and perfect account you shall .render to the first term of the court of ordinary for said county in every year during your continuance in office. And lastly, we do hereby constitute and appoint you, the said James Saunders, guar- dian of the aforesaid William Stiles during his minority, (or lunacy, or insanity, as the case may be.) Witness the honourable James Murray, one of the justices of the _ ~ . said court of ordinary, this the tenth day of August, one * * '' thousand eight hundred and thirty-Jive. Richard Roe, Clerk C. 0. Note.—All guardians must be sworn before the court.—See ante, sec. 30. 114. Warrant of Appraisement. Georgia, ? By the honourable the inferior court of said Baldwin County. ( county sitting for ordinary purposes. To William Temple, Jacob Lee, Joseph Jones, Charles Miller, and Henry Browning. These are to authorize and empower you, or any three of you, to make a just and true appraisement of the estate, real and personal, {ready money only excepted,) of John Stiles, late of said county, deceased, in dollars and cents, as shall be produced or shown to you by James Saunders, the executor (or administrator) of the estate of the said John Stiles : you, and each of you, first taking the oath re- quired by law, before some justice of the peace for said county, and that you will return the same, certified under your hands, and also a certificate of your having taken the oath thereto annexed unto said executor (or administrator,) within the time prescribed by law. Witness the honourable James Murray, one of the justices of the .j c \ said court of ordinary, this the tenth day of August, one * * • *' thousand eight hundred and thirty-five. Richard Roe, Clerk C. 0. For the oath of the appraisers see ante, s. 12. 115. The following is the form of an inventory and appraisement, with the necessary certificates annexed to it. Cash found in hand, the property of the deceased, - $100 Oil One house and lot in the town of Milledgeville, valued at ^,000 00 One vacant lot in the town of Eatonton, (not viewed by the appraisers,) One lot of land, number ten, in the first district, Houston county, (not viewed by the appraisers,) - One negro man named Joe, valued at - - - - 600 00 One Edmund, ... - 700 00 One woman Lucy, - 500 00 One black horse, 100 00 One red cow, 15 00 Twenty sheep, 40 00 Eighty hogs, ■ . 150 00 One wagon, -------- 100 00 Chap 14.] ORDINARY. Ten plough hoes, Nine axes, Five pair of trace chains, One note of hand, given by Wm. Wood, dated 1st Nov. 1834, and payable at ten days, .... Certificate of the Appraisers. We do certify upon oath, that as far as was produced to us by the executor, (or administrator), the above and foregoing contains a true appraisement of the estate of John Stiles, deceased, to the best of our judgment and understanding, this tenth day of August, 1835. William Jones, ) Richard Winn, > Appraisers. Peter Ward, ) 1 do hereby certify that the above appraisers were sworn to per- form their duty as appraisers, according to law, this tenth of August, one thousand eight hundred and thirty five. I. T. Cashing, J. P. 116. An account of sale of the personal* property of John Stiles, deceased, sold at public outcry, on the tenth day of August, one thousand eight hundred and thirty five, upon a credit of twelve months, viz.— One black horse, purchased by Jacob Moore, - $100 00= One red cow, do. John Reid, - 15 00 Ten sheep do. Peter Smith, - - 20 00 Do. do. Benjamin Young, - 20 00 Fortv hogs do. Ralph Williams, - 80 00 Do. do. Joshua Wood, - 85 00 Wagon, do. William Park, - 120 00 Five plough hoes, do. William Park, - 10 00 Five plough hoes, do. James Swain, - 10 00 Four axes, do. Stephen Lane, 5 00 Five axes, do. John Brown, - 10 00 Five pair chains, do. Henry Thomas, 5 00 $480 00 The following are given as suitable forms of returns to be made on oathr. annually, by an executor or administrator, which may serve as a-guide also for a guardian, with slight variations to suit the case. Two forms are given in order to suggest the propriety and convenience of so con- necting the transaction of this important branch of an administrator's duty as to enable him to know the standing of his accounts by reference to the last return; and by regularly numbering them he will readily know if any are lost or mislaid. * Where sale is made of real estate or of negroes, it should be stated ; and as the law prescribes the mode and appoints the day of making such sales, it would be well to state these facts in the,caption, that it may appear that such sale whs made in pur- suance of law. 20 00 18 00 5 00 300 00 288 COURTS OP [Part III. Dr. RETURN No. 1. The Estate of Richard Williamson, deceased, in account current with Susan Williamson, Adm'x, C from 1st Jan. 1828, to 31 st Dec. inclusive.) Cr. To cash paid clerk court of ordinary, as per . voucher To do. funeral expenses, To do. physician's bill, and expenses of last illness, To do. Alfred Thomas on note,* To do. David Watson on proven account, To do. for negro clothing, To commissions on $277 75 paid out, at 2} per cent. ... To commissions on $515 56} received, at 2}, To commissions on $16 interest realized, at 10, Balance on hand 31st December, to balance, - No. 1, $7 37} 2, 28 50 3, 45 00 4, 140 37} 5 38 40 6 .18 10 $6 94 12 88 1 60 21 42 422 39} $721 56} By cash on hand at the death of the intestate, as mentiohed in the appraisement, ... $190 qq By cash received at the sale of perishable property, sold 20th March, as pr. ac. of sale rendered, 50 00 By cash received for the hiref of negroes and rent of land for the year 1828, as pr. ac. of hiring and renting rendered, - 422 00 By cash collected of Thos. Weaver on note, including interest up to 1st Nov. 1828, ... 43 5fi} By cash realized on the loan of $200, at interest, - - - - 16 00 $721 56} Returned 10th January, 1829, by S. Williamson, Adm'x. RETURN No. 2. Cr. Williamson, deceased, in account with Susan Williamson, lstf January, 1829, to 31s< December, inclusive.) By balance in favour of the estate from return No. 1, - - $422 3yj By cash for hire of negroes and rent of land for the year 1829, as per account of hiring and renting rendered, .... By cash realized on the loan of $400 at interest, No. 7, 8, $1 12} 13 12} 400 00 32 00 9, 10, 10 00 200 00 6 00 Dr. The Estate 0/Richard Adm'x, (from To cash paid clerk court of ordinary, for examining, reporting, and recording last return, as per voucher To do. cost recovered against the estate, To do. for board and tuition of James and Susan, or- phans of the intestate, for the year 1828, To do. for printing, To commissions on $400, at 2} per cent. To do. on $220 25 paid out, at 2} do. - To do. on $32 interest re- alized at 10, Balance on hand 31st De- cember, to balance, $854 39} Returned January 15th, 1830, by S. Williamson, Adm'i. * The administrator should be careful in paying off notes rendered against the deceased, to havp special receipts entered on them to this effect: " Received of A. B., administrator on the estate 11 C. D., deceased, the full amount of the within note, including interest up to this date, 1*--," otherwise such notes cannot be received as proper vouchers ; for it is not unfrequently the raw that persons take up notes and retain them among their papers without defacing them, in which state they might chance to fall into the hands of a corrupt administrator, and be returned by him to the Court, and passed to his credit as having been paid off since the death of the maker. The same in regard to open accounts, and indeed all other evidences of debt which were created praf to the death of the intestate. t There should be a separate return made of the hire of negroes and rent of land, specifying the names of the negroes, to whom hired, terms of hiring, and the amount. Chap. 14.] ORDINARY. 289 117. Form of a Receipt for a Legacy. $500 00. Received, this tenth day of August, eighteen hundred and thirty• fee, of James Saunders, executor of the last will and testament of John Stiles, late of Baldwin county, deceased, the sum of five hun- dred dollars, in full of a legacy bequeathed to me in and by the last will and testament of the said John Stiles. William Stiles. 118. Apprentice's Indenture. Georgia, ) This indenture, made and entered into by and Baldwin County. ) between the honourable the inferior court of said county sitting for ordinary purposes, of the one part, and James Saunders, of the same place, of the other part, witnesseth : that the said court of ordinary hath this day, by the consent of all parties con- cerned, bound and put as an apprentice to the said James Saunders, William Stiles, orphan of John, Stiles, late of said county, deceased, toB1 learn the art or mystery of a carpenter, and after the manner of an apprentice, to serve him from the day of the date hereof during the full term of five years, all which time his said master he shall faithfully obey ; he shall do no damage to his said master, nor see it done by others, without giving him notice thereof; he shall not con- tract matrimony within the said term ; he shall not absent himself by day or by night from his said master's service without his leave, but in all things behave himself as a faithful apprentice ought to do, during the said term ; and the said master shall use the utmost of his endeavours to teach and instruct the said apprentice in the trade and mystery of a carpenter, and provide for him the said apprentice sufficient meat, drink, apparel, and lodging, and all other things fitting for an apprentice, during the said time ; and the said master is to give the said apprentice the schooling and education required by the act of the legislature in such cases made and pro- vided. Witness the honourable James Murray, one of the justices of the ,j ^ v said court of ordinary, this the tenth day of August, * ' '1 one thousand eight hundred and thirty five. Richard Roe, Clerk C. 0.# 119. Form of Mastefs Bond. Georgia, > Know all men by these presents, that we, James Baldwin County. £ Saunders and Julius Smith, are held and firmly bound unto the honourable the justices of the inferior court of said county, sitting for ordinary purposes, and their successors in office, in the sum offive hundred dollars, for which payment, well and truly to be made, we bind ourselves, our heirs, executors, and adminis- * It will be seen by reference to Clayton's Justice, page 165, that the foregoing in- denture is signed by the party to whom the indenture is to be delivered. This is evi- dently erroneous ; as nothing can be more absurd than to cause the party himself to sign the instrument by authority of which he is to hold the apprentice to servitude. o o 290 COURTS OF ORDINARY. [Part III. trators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this tenth day of August, one thousand eight hundred and thirty-Jive. " The condition of the above obligation is such, that whereas the court aforesaid has this day bound unto the said James Saunders, orphan of said county by the name of William Stiles, son of John Stiles, deceased, of the age of sixteen years, Hoy jive years, or until he shall arrive at the age of twenty-one. Now if the said James Saunders shall treat, use, and deal with the said orphan agreeably to the law in such case made and provided, then the above obligation to be void, or else remain in full force and virtue. Attest, James Saunders. (L. S.) Richard Roe, Clerk C. O. Julius Smith. (L. S.) The following is suggested as an appropriate form for the marriage ceremony, when to be performed by a magistrate. 120. Beloved friends, we are about to celebrate and solemnize a marriage contract, between A. B. and C. I)., which is an honourable estate, instituted of God in the time of man's innocency, and there- fore should not be taken in hand unadvisedly, but reverently, dis- creetly, and in the fear of God. I therefore feel it my duty to enjoin upon all persons present, that if they, or any of them, know any just objection to this marriage, they now declare it, otherwise for ever hereafter hold your peace. [He may then cause them to join their right hands, and pronounce the marriage covenant in these words;] Will you, sir, take this lady to be your lawful and married wife; solemnly promising and agreeing, before God and these witnesses, that you will be to her a faithful and affectionate husband, and, for- saking all others, will cleave to her alone, until you shall be sepa- rated by death ? [ To which the bridegroom will answer, " I'will." Then, address- ing the bride,] Will you, madam, take this gentleman to be your lawful and married husband ; solemnly promising and agreeing, before God and these witnesses, that you will be to him a faithful, affectionate, and obedient wife, and, forsaking all others, will cleave to him alone, until you shall be separated by death ? [To which the bride will answer, " I will" The justice may then conclude by saying,] Forasmuch as this gentleman and this lady have consented to be united in the holy bands of wedlock, and have witnessed the same before God and these witnesses, I now pronounce them to be man and wife together, agreeable to the laws of God and this state. Whom, therefore, God hath thus joined together, let no man put asunder. 121. Fees of the Clerks of the Courts of Ordinary. Receiving application and granting citation - - $1 25 Signing warrant of appraisement, - - - - 62] Chap. 15.] CLERKS. 291 Signing the probate of will - - - - - 1 25 Recording will or other paper, per copy sheet (of 90 words) 7| A certified copy of a will or other paper, per copy sheet 7| Receiving and recording an appraisement, if under $100 62i If above $100 - - 1 252 Receiving an application and granting letters dismissory 1 25 Granting citation to show cause why administration should not be repealed or set aside 2 50 Granting letters of administration or letters testamentary 2 50 Entering caveat against administration being granted or will proven 125 For attending judges for determining a caveat, per day 1 25 For every marriage license 125 Recording do. 31 i Examining return of account and vouchers in each case 50 Recording return of accounts current - 62i Registering a birth, in each case ----- 25 Every certificate of such registry - 25 For recording executor's, administrator's or guardian's bonds 62| Issuing letters of guardianship - - - - 1 00 Taking a bond for guardian 50 Making out and signing indenture of apprenticeship - 1 00 Rule nisi, in each case ------ - 50 Rule absolute, in each case 50 Issuing process against persons charged with mismanage- ment, in each case - -- -- -- 50 For every additionafcopy 25 Issuing process against persons in default for not making returns 50 For every additional copy 25 For every subpoena 12 r For entering an appeal and transmitting proceedings to the superior court - 2 00 CHAPTER XV. CLERKS OF THE SUPERIOR AND INFERIOR COURTS. 1. These officers are appointed on the same day and in the same manner as sheriffs, and their vacancies supplied in the same way; for which, see Sheriffs. 2. The clerks of the superior and inferior courts shall take their oath of office, and give the security required by law, in ten days after they are notified of the arrival of their commissions; and upon their failure to do so, three or more justices of the inferior court may de- clare their appointment vacant, and order a new election.—Prin. Dig. 121. 292 CLERKS. [Part III. 3. The said clerks shall, before they enter upon the duties of their appointments, and after being commissioned by the governor, take the following oath before one of the judges of the superior court or a justice of the inferior court of the county :—" I do solemnly swear (or affirm) that I will truly and faithfully enter and record all the orders, decrees, judgments, and other proceedings of the superior (or inferior) court of the county of , and all other matters and things which hy law ought by me to be recorded; and that I will faithfully and impartially discharge and perform all the duties required of me, to the best of my understanding." And shall also enter into bond, with one or more good and sufficient security or securities to the governor for the time being, in the sum of three thousand* dollars, conditioned for the faithful discharge of the duties required of them: and the said clerks shall, in virtue of their offices, be justices of the peace so far as to administer all oaths appertaining to the business of their offices. —Prin. Dig. 214. 4. The said clerks shall be allowed to appoint a deputy or depu- ties, in the same manner and under the same rules and regulations as deputies of sheriffs are now by law appointed, who may continue in office during the term of his or their said principal or principals, un- less specially removed: Provided, always, that in case of the death, resignation, or disability of the said principal clerk or clerks, the power and authority of the said deputy or deputies shall cease and determine; and that the said several principal clerks shall, in all cases, be respon- sible for the acts of each and every of their said deputies and agents. —Ib. 122. 5. It shall be the duty of the justices of the inferior courts to pur- chase or cause to be purchased out of the coifhty fund a sufficient number of well-bound blank volumes for the clerks of the superior, inferior, and courts of ordinary, of their respective counties; and it shall be their duty to letter, or cause to be lettered and indexod said volumes as they in their judgment may think proper, and have them immediately entered on the minutes of the court. And the justice# aforesaid shall, at the expiration of each year, cause said clerks to procure a schedule of the books in their respective offices, and have the same duly recorded.—Ib. 117. 6. The clerks of the several courts in this state shall copy into a book of record all the proceedings in all civil cases in said courts re- spectively, which entry of record shall be made within forty days (but see section 8) after the determination of any cause, and the said clerk shall be allowed the sum of ten cents for every hundred words for recording such proceedings, to be taxed in the bill of costs. And the said clerks shall also keep regular and fair minutes of all the proceed- ings in any of the said courts, which shall be signed by the judge of the superior or presiding justice of the inferior court (as the case may be) prior to the adjournment from day to day.—Ib. 213, 214. 7. The inferior courts shall be authorized to institute a suit or suits * The clerk of the inferior court of Wilkes county to give bond in the sum of $5000 —Daw. Comp. 114. Chap. 15.] CLERKS. 293 in the superior court upon the bond or bonds of any clerk who has failed or neglected to copy into a book of record all the proceedings in all civil cases in said courts respectively, according to the true in- tent and meaning of the 34th section of the act of. the 16th February, 1799, (the foregoing 6th section,) or who shall hereafter fail or neglect to record the proceedings of said courts as herein after required, and shall recover damages for the neglect or failure of such clerk, in manner aforesaid, according to the rates for recording said proceed- ings, in all the cases in which such clerk shall have failed or shall fail to record, or which he shall have imperfectly recorded, or shall imperfectly record : and in case there be no valid bond of said clerk, it shall and may be lawful for said superior court to cause said clerk, by a rule or order of said court, to pay into the hands of the county treasurer such sum or sums of money as it shall appear to said court that such clerk has received or shall receive as fees for recording of proceedings in cases in which he has or shall fail or neglect to record, or has or shall imperfectly record, and to enforce such order by pro- cess of attachment: Provided, when it shall appear that said clerk has not received the recording fees in any case or cases, the amount of such fees shall not be included in the damages herein required to be collected, nor in the sum herein directed to be paid.—Daw. Comp. 228. 8. The proceedings in all cases, criminal as well as civil, hereaf- ter determined in the several courts of law and equity in this state, shall be fully and fairly copied by the clerks of such courts respect- ively into record books of a substantial nature, previous to the next term of such courts after the adjournment of the court in which such cases shall be determined. 9. All suits of a civil nature cognizable in the said courts respect- ively, shall be by petition to the court, which petition shall contain the plaintiff's charge, allegation, or demand, plainly, fully, and distinctly set forth, and be signed by the plaintiff, or his, her, or their attor- ney, and to which petition the clerk shall annex a process, signed by such clerk, and bear test in the name of one of the judges or justices of such court.—Prin. Dig. 206. 10. Where the attendance of any person shall be required as a wit- ness in any of the courts aforesaid, in any cause depending therein, it shall be the duty of the clerks of said courts respectively, on applica- tion, to issue writs of subpoena, directed to the persons whose attend- ance shall be required, where such persons reside within the county* in which such cause may be depending, which writ of subpoena shall express the cause and the party at whose suit it shall be issued.—lb. 21.0. 11. The clerk of the court shall annex a panel of the jury contain- ing the names of the persons drawn to serve on the grand inquest exactly transcribed from the minute-book, to the precept for summon- ing such grand jury, and shall annex another panel containing the names of the persons drawn as petit jurors for the trial of civil and criminal cases, exactly transcribed as aforesaid, to the precept for # Female testimony in all civil cases may be taken by interrogatories.—See that title. 294 CLERKS. [Part III. summoning the petit jurors, in the mandatory part of which precept shall be written the words following, viz. " The several persons named in the panel hereunto annexed which precept, with the sev- eral panels annexed as aforesaid, shall be delivered by the clerk of the court, within three days after the drawing of such juries aforesaid, to the sheriff of the county or his deputy.—Prin. Dig. 215. See chap. Jurors. 12. The clerks of the superior courts are authorized to record all deeds for land lying in the county of which he is the clerk, and to re- ceive for the same fourpence* per copy sheet-of ninety words.—lb. 112' 13. It shall not be lawful for the clerks of the superior court, or any other officer of the state, to enter on record, in any book of record by them kept, any deed of manumission, or other paper which shall have for its object the manumitting and setting free any slave or slaves: and the party offending herein shall forfeit for every deed or other paper so recorded the sum of one hundred dollars, to be recovered by action of debt or indictment in any court having cognizance there- of; the one half to be paid to the party who shall sue or prosecute for the same, and the other half to the use of the county where the offender may reside.f—lb. 457. 14. For the duty of the clerk of the superior court in administer- ing the oath and granting certificate to persons intending to intro- duce slaves into this state, see p. 1, c. 13, s. 1. 15. It shall be the duty of the clerks of the superior and inferior courts of the several counties in this state to lay before the inferior court of their respective counties, at the first annual session of said courts, a correct statement of the several sums of money received for county rates or taxes, or fines, forfeitures, impositions, licenses, or otherwise, in such method as that the nett proceeds of the whole reve- nue of such county, and the amount of the several disbursements in dis- charge of the several demands against such county, may distinctly ap- pear: and if any of the said clerks shall divert, misapply, or conceal any of the money belonging to such county, he shall forfeit and pay to and for the use of such county double the money he shall be found so to have diverted, misapplied, or concealed, to be recovered before any court having jurisdiction of the same ; and it shall further be the duty ot said clerks to record such statement of county funds in proper books, to be provided at the expense of each county.—Prin. Dig. 117, 118. 16. It shall be lawful for the justices of the inferior court, or a ma- jority of them, in each county respectively of this state, when any clerk of the inferior court may or shall refuse or neglect to pay over any money or moneys belonging to the county funds, deposited or paid to him for the use of the county for which he is the clerk, to issue an execution against such clerk, and his security or securities, * This fee, allowed by the act of 1785, stands repealed by the general fee bill of 1792, which allows six and a quarter cents per copy sheet (of ninety words) for recording any instrument of writing.—See fee bill. t By the act of 1818, this section is construed to inhibit the recording only of so much of any instrument as shall relate to the manumitting or setting free any slave or slaves. — Prin Big. 465. Chap. 15.] CLERKS. 295 directed to the sheriff or other officer authorized to execute the'same, commanding him to levy the same on the estate, both real and per- sonal, belonging to the said clerk, and his security or securities, as the case may be, or so much thereof as will be sufficient to satisfy such execution, and costs thereon ; and such other proceedings shall be had thereon as are usual on other executions issued upon judg- ments.—Prin. Dig. 118. For the mode of compelling clerks,and other officers to pay over money by them collected on executions, see ante, ch. 4, s. 15. 17. It shall be the duty of all clerks of the inferior courts, of any county within this state, to give a receipt or receipts for any sum or sums of money by them received of and from any officer or other person whatsoever for county purposes, or for moneys on any ac- count belonging to the county.—Daw. Comp. 201. 18. It shall be the duty of all county officers, or any other per- son or persons who may receive any sum or sums of money arising from the sale or sales of estrays, (or other means, when such money belongs to any county,) shall pay the same over to the clerk of the inferior court (or county treasurer) of such county, and shall take a receipt or receipts from the clerk of the inferior court of the several and respective counties; which receipt the officer, or other person paying the money, is hereby directed to demand, and the said clerk required to give, and the officer or person paying the money and taking the receipt or receipts shall return the same to the clerk of the superior court of the county where the money was paid, within twenty days from the payment of the same. And it shall be the duty of the clerks of the superior courts within this state to receive and keep a regular and fair file in office and entry in a book to be kept by them for that purpose, all such receipts by them received, to be laid before their several grand juries, whenever called for by said grand juries. And for each receipt received, filed, and en- tered upon such book, the said clerk shall receive the sum of twelve and a half cents out of the county funds, and shall be allowed the same on presenting a statement of his account to the inferior court; and when passed by such court, the same shall be entered in the books of accounts kept by the clerk of the inferior court.—lb. 201. 19. For each and every neglect or violation of the two preced- ing sections, the party neglecting or violating the same shall, upon conviction, be fined in a sum not less than one hundred, nor more than^/zue hundred dollars.—lb. 20. It shall be the duty of the clerks of the inferior courts in the several counties in this state, annually at the first term* of the supe- rior court in their respective counties, to make and exhibit to the grand jury a full and complete statement of the county funds, show- ing the receipts and expenditures of their said counties for the pre- ceding year, in which statement they shall specify, not only the mo- neys by them received and paid out, but the names of the persons * See sec. 21. '296 CLERKS. [Part III. from whom the same has been received, and for and on what ac- count the same has been paid out. And every clerk failing to com- ply with the requisitions of this act, may for the said offence be pre- sented by the grand jury for malpractice in office, upon which said presentment it shall be the duty of the attorney or solicitor general to prosecute as in other cases of presentments by the grand juries for offences punishable by law ; and on conviction the said clerk may be fined, or fined and removed from office, at the discretion of the court. For the services required of clerks by this section, the justices of the inferior court may allow such compensation as is rea- sonable and just.—Daw. Comp. 112, 113. 21. All county officers, in each county in this state, in whose hands any money belonging to the county or state shall come, shall prepare and keep a fair, good, and substantial leather bound book, in which they and each of them shall enter, in a regular and distinct manner, all mo- neys by them received on account of the state or county, or from any other public source, in such a way as may be seen how much, and at what time, the said money was received ; and, in like manner, how the same has been expended or disbursed, with the items of each ex- penditure ; and at the expiration of every three months, the debt and credit side of each account shall be struck, so that the state of the ac- count may be known. And it shall be the duty of the county treas- urer, or if none has been appointed, then the clerks of the superior or inferior courts acting as such, shall at every second term* in each county lay before the grand jury a fair abstract from said booh In case of neglect or failure of such officers to perform the duties hereby assigned them, they shall be liable to a fine of twenty dollars for each offence, to be recovered in any court of record having competent juris- diction; the whole penalty to go to the person prosecuting the party offending.—Acts of 1831, 90. 22. During the legal office hours all persons shall have access to, and a right to inspect the aforementioned books, and to take extracts therefrom ; and the person keeping the same shall be entitled to re- ceive twenty-five cents for each inspection ; and should any of the aforesaid officers refuse any citizen an inspection of said books, such officer so offending shall be liable to the penalty and prosecution as prescribed in the foregoing section.—lb. 23. It shall be the duty of the clerks of the inferior courts of the several counties of this state, to keep a register of the name of per- sons appointed notaries public, in their respective counties ; and said clerks shall be entitled to have and receive from the person so ap- pointed, as a compensation for the service so rendered, the sum of two dollars—Daw. Comp. 214. 24. All executions shall be issued and signed by the clerks of the several courts in which judgment shall be obtained, and bear test in the name of one of the judges or presiding justices of such courts, and shall be directed to all and singular the sheriffs of this state.—Prin. Dig. 222. 25. In all cases where a verdict shall be rendered, the party in * See preceding section. Chap. 15;] CLERKS. 29? whose favpur it may be, shall be allowed to enter and sign judgment thereon at any time within four days after the adjournment of the court, at the clerk's office, for the amount of such verdict and all legal costs recoverable thereon; and no execution shall issue on any verdict, until such judgment shall be entered, and signed by the party or his attorney ; and all the property of the party against whom such ver- diet shall be entered, shall be bound from the signing of the first judgment; but where several judgments shall be of equal date, the first execution delivered to the sheriff shall be the first satisfied: Pro- vided always, that any party against whom such judgment shall been- tered, may enter good and sufficient security, either in open court or in the clerk's office, within the time aforesaid, for the payment of the judgment and costs within sixty days ; and if such party shall not pay the same agreeably thereto* execution may issue • against such party and the security without any other proceeding thereon 2 and Provided also, that in case either party shall be dissatisfied with the verdict of the jury, then and in all such cases either party may, within four days after the adjournment of the court in which such verdict was obtained, enter an appeal in the clerk's office of such court, (as matter of right;) and if such verdict shall be obtained in the inferior court, it shall be the duty of the clerk thereof to trans- mit such appeal to the clerk of the superior court of the county in which said verdict shall be obtained, who shall enter the same on the appeal docket; which appeal shall be admitted and tried by a special jury, provided, the person or persons so appealing shall, previous to obtaining such appeal, pay all costs which may have arisen on the former trial, and give security for the eventual condemnation money, except executors and administrators, who shall not be liable to give such security ; but if on hearing such appeal it shall- appear to the jury that the appeal was frivolous, and intended for delay only, they shall assess damage to the party aggrieved by such delay, not exceed- ing twenty-Jive per centum on the principal sum, which they shall find due; and such damages as shall be so assessed, shall be specially noted in the verdicts of such jurors, and no person-shall be allowed to withdraw an appeal after it shall be entered, but by consent of the parties.—Prin. Dig. 211, 212. 26. The respective clerks of the superior and inferior courts of this state shall keep regular subpoena dockets, and the said clerks of the superior court shall also keep separate dockets for all criminal cases, which shall be entered in their regular order.—lb. 222. 27. Where it shall appear by the sheriff's return on any execu- tion or executions that the same has been paid- by a security of securities, it shall be the duty of the clerk to make such entry in such docket book, and such security or securities shall have the use and control of said execution, for the purpose of remunerating him or themselves out of the principal for whom he or they stood security. —Ib. 222. 28. By the act of 1807, the clerks of both courts, as well as the clerk of the court of ordinary, are required to keep their offices at the courthouses, or within one mile thereof, in their respective c-oun- pP 298 clerks, [Part III, ties, or be subject to a fine of $30 a month, so long as they fail to comply with the law ; but to this law the exceptions are so numer- ous, as to make it necessary to refer to the different laws making the exceptions.—Prin. Dig. 119. 29. The clerks of both courts shall perform all the duties of their respective offices between the time of the elections and commission- ing their successors, with all the responsibilities to which they are liable previous to such election. They must apply for their com- missions within twenty days after their election, and keep their re- cords in books well bound.—lb. 120. 30. It shall be the duty of the clerks aforesaid to deliver over to their successors in office respectively, all the books and papers ap- pertaining to their respective offices, within five days after their successors are qualified: Provided, that the said clerks shall make out and deliver to their successors in office respectively, upon oath, a fair and correct schedule of all the papers relative to any unfinished business in their said offices respectively, in term bun- dies, and all other papers and books appertaining to said office, in good order,—lb. 116, 117; and see ante, p. 1, c. 8, s. 14, 31. In case of unavoidable accidents whereby the superior eourts in any county shall not be held at the time appointed for holding the same, it shall be the duty of the clerks of such court to adjourn the same from day to day, not exceeding two days ; and if the said court should not sit within the two days as aforesaid, such clerk shall then adjourn the same to the next term.—lb. 205. 32. The clerks of the superior court of this state shall be au- thorized, whenever they are informed by the presiding judge that it is not possible for him to attend the regular term of said court, from sickness or other causes, to adjourn the same to such time as he may direct; and shall moreover advertise the same at the court- house of the county in which said court is to be held, and one or more times in some public gazette of the state.—Daw. Comp. 211. 33. If from any circumstance a majority of the justices of the in- ferior court, in any of the counties of this state, should fail to attend at the regular term of said inferior courts, or at any adjourned term, it shall and may be lawful for any c 3 of the justices of the inferior court in the county where such failure may take place, together with the sheriff or his deputy, coroner or constable, and the clerk of said court, to adjourn said court to such time as they in their judgment may think proper.—lb. 211. 34. From and after the 20th of December, 1834, suitors shall not be required to pay the court costs, or any part thereof, at the several progressive steps or stages of thejr suits, as has been required by the decision of some of the courts; but that the mode heretofore practised in other courts, viz. the taxation of the costs which plain- tiffs were supposed to have paid to the entering up. of judgment, in the judgment of the plaintiffs, be, and the same is hereby declared to be the true intent and meaning of the act of 1792 upon this subject; and that the officers of courts be, and they are hereby prohibited from demanding or receiving the cost or fees which the said fees bill, or the acts amendatory thereof, prescribes, until after judg- Chap. 15.] clerks. 290 ment, and then to be raised by the execution of plaintiffs from de- fendants, if enough can be collected for such purpose; if not, then by afi fa. or ca. sa., issued under the order of the court first had and obtained, out of the plaintiffs.—Acts of 1834, 93. The following is a Table of the Fees to which the Clerks of the Superior and Inferior Courts are entitled respectively, corrected up to the year 1835. 35. Clerks' Fees in Criminal Cases. $ cts. Every writ and seal 31} Every panel of jury 31} Order for fine on a juror, (unless excuse be made,) and en- tering the same - 31} Ordering a fine peremptory, entering, and reading - - 31} Copying the same for the attorney (or solicitor) general - 31} Fee on a writ of capias and seal - - - - 31} For attendance in hearing a motion in arrest of judgment, or at the judge's chambers on a petition preferred, or a habeas corpus, or to take the examination or information of any person - -- -- -- - 933 Taking an examination, information, or affidavit, per copy sheet - 7tV Drawing a warrant 31} A commitment or liberate 31} Taking an acknowledgment of bail before the judge, or in court, and drawing recognisance thereof - - - 62} Every subpoena ticket- ------- 15} Every arraignment or charging a defendant with indict- ment, if found guilty 31} Entering plea 15} Calling a jury - 15} Attendance on every case tried 31} Every sentence or judgment, and entering the same - 31} Copy of every indictment or other paper, per copy sheet - 8} Copy of judgment to the sheriff, and order thereon - - 31} Calling a traverse, or discharging a recognisance - - 31} Recording the proceedings of a cause, per copy sheet - 7TV Every person acquitted by proclamation - 31} Every search -- - - - - - 15} A writ of dedimus potestatum - - - - - 1 25 Renewal of capias 31} 36. Fees of the Clerk of the Superior Court in Civil Cases. Every suit commenced therein, if settled before judgment, $ cts. and for each nonsuit 1 87} For each copy of a writ, where there are more than one defendant, after the first copy 62} 300 clerks. [Part III. Every suit so commenced and prosecuted to judgment, in- $ cts. eluding every service to entering up satisfaction - - 3 75 For each appeal, if settled before verdict - - - - 1 25 For each appeal prosecuted to judgment, including every service to entering up satisfaction - - - - 2 50 For every writ of subpoena and ticket - 15 i For a writ of partition of land 3 75 For issuing a commission to examine witnesses - - 1 25 For making out letters of guardianship and taking security 1 25 For every order for sale of land, and copy thereof - - 62|. Recording any instrument of writing, per copy sheet (ninety words) 7^ Every search - - 15-i A certified copy of any record, per copy sheet (ninety words) - 7t8^ For every foreclosure of any mortgage, and recording pro- ceedings 125 Every inquiry of title respecting property levied on by the sheriff, and claimed by a third person - - - - 1 25 Recording proceedings in all civil cases, for every hundred words - 12| For performing the service required upon application of persons intending to introduce slaves into this state - 3 00 For entering and filing any receipt given by any county officer for public money paid over for the use of the county --------- 12{ For every inspection of the book containing the account of public money in his possession 25 §7. Fees of the Clerk of the Inferior Court in Civil Cases. For each case settled before judgment, and each appeal to $ cts. the superior court - 1 87£ For each copy of a writ, where there are more than one defendant, after the first copy ----- 62^ Each cause commenced therein and prosecuted to judg- ment, not appealed from, including every service to entering up satisfaction 3 75 For subpoena tickets, commissions, and letters of guar- dianship, and inquiries respecting property claimed, nonsuits, and any other service performed, the same fees as are allowed to the clerk of the superior court. Each appeal presented to judgment from a justice's court (including every service to entering up satisfaction) - 1 25 If settled by the parties - - - - - - 62| For every inspection pf the book containing the exhibit of the county funds 25 Under a resolution of the General Assembly, passed 27th November, 1802, the justices of the inferior court are authorized to allow their clerks, annually, a compensation for extra services. Chap. 15.] CLERKS. 301 It will be proper for the clerks and other county officers to make them- selves familiar with the following provisions of the law of 1792.—Prin. Dig. 178, 179. Every public officer shall, if required, give a statement and receipt of the fees lie may demand, and upon refusal so to do, shall forfeit twenty-five shil- lings (five dollars thirty-six cents) with costs of suit, to be sued for and re- covered before any justice of the peace; provided the suit is not delayed longer than twelve months. Public officers are required to have a table of their fees fairly and distinctly written out, and exposed in some conspicuous place in their offices, under pain of forfeiting fifty cents a day for every day they may neglect the same. Any public officer who shall charge or take fees that are not allowed by law, shall, on conviction, be dismissed from office. Any public officer who shall presume, on any pretence whatever, to charge, demand, or receive fees for services not done or performed by him, shall for- feit and pay to the party aggrieved fourfold the sum so illegally charged, demanded, or received, and shall be immediately dismissed from office. Any public officer who shall demand and receive a greater fee than he is entitled to, shall forfeit to the person aggrieved fourfold the sum so unlaws hilly taken, to be recovered with costs before any court having jurisdiction. In case any public officer shall be sued as aforesaid, and the verdict be in his favour, or if the plaintiff or prosecutor shall be nonsuited or discontinue his suit, then such officer shall recover double costs. All penalties and forfeitures incurred as aforesaid (except such as fall with-? in the jurisdiction of a justice of the peace, and those payable to the party aggrieved) shall be recovered without delay in the superior or inferior courts, 38. Fieri Facias against the Property. Georgia, ) To all and singular the sheriffs of said state, Baldwin County. ) greeting. We command you, that of the goods and chattels, lands and tenements of John Doe, (in your county,) you cause to be made one hundred dollars, which Richard Roe, lately in the superior court in the county aforesaid, recovered against John Doe, as well for dam- ages, by reason of the non-performance of certain promises by the said John Doe before that time made, as for costs and charges in his suit in that behalf expended; whereof the said John Doe is convicted, and liable, as to us appears of record; and have the said moneys before the said court on the second Monday in January next, to render to the said Richard Roe his damages, costs, and charges aforesaid, and have you then and there this writ. Witness the Hon. Thomas Stiles, judge of said court, this the tenth day of August, in the year of our Lord one thousand eight hundred and thirty-five. Peter Jones, Clerk. 39. Form of an Execution against the Body. Georgia, ) To all and singular the sheriffs of said state, Baldwin County. ) greeting. We command you, that you take the body of John Doe, (if to be found in your county,) and him safely keep, so that you have his body before the superior court, to be held for the county of Bald' win, on the second Monday in January next, then and there to satisfy 302 CLERKS. [Part III. Richard Roe the sum of one hundred dollars, which lately in our said court Richard Roe recovered against John Doe, as well for damages, by reason of the non-performance of certain promises by the said John Doe before that time made, as for his costs and charges by him in his suit in that behalf expended; whereof the said John Doe is convicted, and liable, as to us appears of record, besides your fees for this service. Herein fail not; and have you there this writ. Witness the hon. Thomas Stiles, judge of said court, this the tenth day of August, in the year of our Lord one thousand eight hundred and thirty-Jive. Peter Jones, Clerk. 40. Form of a Demand upon an Officer, who refuses or neglects to pay over Moneys in his hands. Georgia, ) To Randall Nopay, clerk of the superior Baldwin County. \ court of said county. Sir—Please to take notice, that I do hereby demand of you to pay over to me all the moneys you have collected, and now in your hands, on a fi. fa. issued from the superior court of said county, returnable to the last September term of said court, Hugh Dobbs vs. John Doe ; and upon your failing to do so, I shall hold you responsi- ble, as well for the amount of money so in your hands, as for interest at the rate of twenty per cent, per annum, from the day of the date hereof until such money be paid over. Given under my hand, this tenth day of August, eighteen hundred and thirty-five. Hugh Dcbbs. [The following must be endorsed on the back of a copy of the foregoing notice, or on a separate piece of paper, and which must accompany the notice, and both be presented to the next court from whence the execution issued, when the officer neglects to pay over the money, so as to make him chargeable with the twenty per cent, per annum.] Georgia, > Before me, Isaac T. Cushing, a justice of the Baldwin County. > peace in and for said county, personally came Hugh Dobbs, and being duly sworn, saith, that before serving the within notice, he demanded of Randall Nopay, clerk, verbally, the money raised upon said fi. fa. and that he refused or neglected to pay the same ; and that he served the original, of which the forego- ing is a copy, on the said Randall Nopay, clerk of said county, at his residence, on the tenth day of August, eighteen hundred and thirty-five. Sworn to and subscribed before me, Hugh Dobbs. this 12th day of August, eighteen hundred and thirty-five. I. T. Cushing, J. P. Chap. 16.] ATTORNEYS. 303 CHAPTER XVI. ATTORNEYS. 1. An attorney is one who is appointed to do anything in the turn, stead, or place of another.—1 Inst. 51. Attorneys at Law.* 2. No person shall be debarred from advocating or defending his cause before any court or tribunal, either by himself or counsel, or both.—Con. art. 3. sec. 8. 3. All and every person or persons whatsoever, who are citizens of tiis state, may, on application to the judge of the superior count, be admitted to practice as an attorney: Provided, such person shall produce satisfactory evidence of his moral rectitude, and shall undergo an examination in open court, upon a day assigned for that purpose by the judge. And such applicant shall not be required to have studied any particular length of time in order to his admis- sion.—Prin. Dig. 25. See rules of court, ante, c. 9. 4. No sheriff or clerk of a court, or other person employed in his office, shall be allowed to plead or practise in any of the courts of this state during the time he may be so employed.—lb. 214 and 217. 5. If any party, plaintiff or defendant, be nonsuited or cast by reason of the neglect or misconduct of the attorney employed in such suit; in all such cases the said attorney shall pay all costs that may accrue thereby, and the court shall immediately enter up judgment accordingly.—lb. 212. G. Where an attorney may institute a suit in behalf of a person? residing out of the state, or the county in which the defendant may reside, such attorney shall be liable for costs- in case the suit shall be dismissed, or the plaintiff be cast, and the clerk may issue execu- tion against such attorney for the amount of such cost. And in case of a recovery by the plaintiff, and the sheriff shall return no property to be found, the clerk may issue execution against such plaintiff'and the attorney, jointly, for the costs. 7. If any attorney shall retain in his hands any money received bv him for any client, after being by the court ordered to pay over the same to the principal, he shall be struck from t„he list of attor- neys, and never more be suffered to* plead In any of the courts of this state.—lb. 225. 8. Attorneys at law may hold to bail in all civil cases.—Acts- of 1831, p. 137. 9. All contracts made and entered into between any party, plaintiff or defendant, and attorney or attorneys at law, in writing or other- vise, shall be held and deemed null and void, whenever the sa id attorney or attorney shall fail to attend in person, or by some com- * For the manner of admitting attorneys from the adjoining states and territories, and the clerk's fee, see Daw. Comp. 228. 304 ATTORNEYS, [Part III. petent attorney, to the suit or suits which he or they contracted to do, until the rendition of judgment.—Acts 1831, 139 and 149. 10. If any attorney or attorneys art law, as aforesaid, shall trans- fer any note or notes, obligation or obligations in writing, taken or received for his or their services as attorney or attorneys as afore- said, and .shall fail to attend to the suit or suits, in person or by some competent attorney, until the rendition of a judgment, he or they shall forfeit and pay to the person or persons whoui the same was taken from, double the amount so transferred, recoverable in any court having jurisdiction of the same.-—lb. 140. 11. Nothing in any existing law in relation to attorneys'tax fens, shall be so construed as to entitL any attorney to a greater tax fee than two dollars in any one case.—Acts.ofl832, p. 115. Where the defendant prevails, his attorney shall be entitled to the foe in |ieu of the plaintiff's attorney.—Prin. Dig. 176. Attorneys in Fact. 12. All sales or conveyances of lands, &c., made by virtue of any letters or powers of attorney, duly executed, which expressly give power to sell land or other estates, and which shall be proved in this state before any justice of the peace, shall be good and effectual in law, to all intents and purposes whatsoever, the same as if the con- stituent or constituents had, by their own deeds and conveyances actually sold and conveyed the same ; but no sale of lands made by such power of attorney or agency shall be good. unless made while such power is in force ; and such power shall be deemed and taken to be in force until the attorney or agent shall have due notice of a countermand, revocation, or death of the constituent.—lb-113. 13. The following is an apprpved form of a general letter of ah torney:— Georgia, ) &noW all men by these presents, that J, Richard Baldwin County. 5 Roe, of the county and state aforesaid, for divers good causes and considerations me hereuntp moving,'have made, or- dained, and appointed, and by these presents do make, ordain, and appoint John Doe of the county of Baldwin, in the state of Georgia, my true and lawful attorney, for me and in my name, and for my own proper use-and benefit, to ask, demand, sue for, recover, and receive of and from Peter Paywell Of the county .and state last men- tioned, (or frowfall persons whatever who are indebted to the pet son giving the letter of attorney *) all such sum oy sums of money, debts, and demands whatsoever, which are now due and owing unto me b) and from the said Peter Paywell, (of* all persons whatever,) and to have, use, and take all lawful ways and means, in my name, or other- * If the letter of attorney is to sell land, transfer stock,-receive a dividend from a hank,-to vote for stockholders by proxy in any bank, to receive a legacy, or to do or perform any other act or thing, let these objects, or any of them, be plainly and dis- tinctly expressed in the power of attorney, instead of the one mentioned in the foregoing form. And if it is'to.convey land, the land must be as particularly described in the power of attorney as it would be in the deed of conveyance, and the power of atturr.ev ought to be annexed to the deed, and both recorded together.—Clay. Jus. 381. Chap. 16.] ATTORNEYS. 305 wise, .and to compound and agree for the same; and acquittances or other sufficient receipts and discharges for the same, for me and in my name, to make, seal, and deliver; and to do all other lawful acts and things whatsoever concerning the premises, as fully and in every respect, as I myself might or could, do, were I personally present at the doing thereof; and one or more' attorneys under him," for the purposes aforesaid, to make, and again, at his pleasure to revoke: ratifying and confirming, and by these presents allowing, whatsoever my said attorney shall in my name lawfully do; or cause to be done, in and about the premises, by virtue of these presents! In witness whereof, I'haye hereunto set my hand and affixed my seal, this tenth day of August, in the year one thousand eight hundred and thirty-five. Signed, sealed, and acknowledged ' 'Richard Roe. (L. S.) before me. • ' ' I. ,T. Cashing, J. P. If the letter of attorneyis.to be sent to another state to be there used, "it. js better to have it executed before a judge of the superior or justice of the in- ferior court,* arid annexed the following certificate^:— Georgia, ..) I, James Thompson, clerk of the inferior" court Baldwin County, j for said county, do hereby certify, that Abel Goodall, whose name appears to the foregoing letter of attorney as a subscribing witness, is ah doting justice ofi the inferior court, (pr judge of the superior court,) rind that full faith and credit ought .to -be had and given to his attestation as such, and that the same is in due form, Given under my hand and seal of office, this the tenth day of Au- gust, one 'thousand eight hundred and thirty-five. James Thompson, Clerk. (L. S-.) Georgia, ) I, Abel Goodall, one of the justices of the in- Baldwin County. \ ferior court for the county and state aforesaid, do certify that James Thompson, whose name appears to the above and foregoing certificate, is clerk of the inferior court for said county, and that full faith and credit ought t-o be had and given to his attestation as such, and that the same is in due form. Given- under my hand and seal, this tenth day of August, in the year one thousand eight hundred and thirty-five- Abel Goodall, J. I. C. • (L. S.) * The only reason for this preference, is, that the clerk who certifies the official char- acter of the justice of the peace (if such officer witnesses the instrument) has no official connection with that officer, or any such record of his actings and doings as will enable him officially to know the fact he is cajled on to certify ; and many very sensible clerks will hesitate to certify a fact officially, that is only known to them in common with others, as matter of .public notoriety. It is proper to add, that some legal gentlemen have thought it most prudent in all cases where such authentication is necessary, to procure a testimonial, which, being signed by the governor, and issuing from the office of the secretary of state, where tfie record of the justices' or judges' commissions is kept, is considered the highest evidence. In such case, the instrument may be wit- nessed by a justice of the peace, and the certificate of the secretary of state, or testimo- nial that such officer is in commission, will supersede the necessity of any other cer- tificates. Qq PART IV. A COLLECTION OF STATUTES OF THE STATE OF GEORGIA UPON VARIOUS SUBJECTS OF INTEREST, BOTH TO THE PUBLIC OFFICERS AND CITIZENS GENERALLV. CHAPTER I. ATTACHMENTS. I. The act of 1799 declares, that in case of rion-residence, or where both debtor and creditor shall reside without the limits of this state, it shall and may be lawful for such creditor, by himself, his agent, or attorney, to attach the property both real and personal which may be found in the estate of such debtor, in the same manner and under the like restrictions as are or shall be usual in case of absconding debtors, or where the debtor alone resides out of the state. It shall and may be lawful for the judges of the superior, or justices of the inferior court, or any one of them, and also for any justice of the peace, upon complaint made on oath that his debtor resides out of this state, or is actually removing without of this state,* or any county, or absconds or conceals himself, or stands in defiance of a peace officer, so that the ordinary process of law cannot be served on him, to grant an attach- ment against the estate of such debtor, or so much thereof as shall be of sufficient value to satisfy the plaintiff's demand and costs, which attachment shall be directed to and served by the sheriff of the cotlnty where the property may be found, or his deputy, or any constable; and it shall be the duty of such sheriff, his deputy, or any constable to serve and levy the same upon the estate both real and personal of such debtor, wherever the same may be found, either in the hands of any person indebted to or having effects of such'debtor, and sum- mon such person or persons to appear at the next court to be held for the said county, and to which the said attachment may be return- able, there to answer on oath what he is indebted to, or what effects of such party he hath in hand, or had at the time of levying such attachment, which being returned executed, the court may by order compel such person to appear and answer as aforesaid ; and where any person in whose hands any debts or effects may be attached shall deny owing any money to, or having in his hands any effects of, such debtor, it shall be lawful for the plaintiff to traverse such denial, and * Or is about to remove, &c« see post, see. 13,15. Chap. 1.] ATTACHMENTS. 307 thereupon an issue shall be made up and the same be tried by a jury, and if found against such garnishee, he, she, or they, shall be subject to pay the plaintiff such sums as shall be so found, and the court shall order judgment to be entered thereof against such garnishee, as in other cases: Provided, that the said judge or justice of the inferior court, or justice of the peace, before granting such attachment, shall take bond and security of the party for whom the same may be granted in double the sum to be attached, payable to the defendant, for satisfying and paying all costs which may be incurred by the de- fendant, in case the plaintiff suing out such attachment shall discon- tinue or be cast in his suit, and also all damages which may be recov- ered against the said plaintiff for suing out the same; which bond shall be returned to the court to which such attachment may be made, returnable on or before the last day of the term ; and the party en- titled to such costs and damages may bring suit and recover thereon, and every attachment issued without such bond taken, or where no bond shall be returned as aforesaid, is hereby declared to be illegal, and shall be dismissed with costs: Provided, always, that every attach- ment which may be issued as aforesaid shall be attested by the judges of the superior, or justice of the inferior court, or justice of the peace issuing the same, and be by the sheriff or person authorized to serve the same publicly advertised at the courthouse of the said county at least thirty days before the sitting of the court; and if any attachment shall be issued within thirty days of the next court, such attachment shall be made returnable to the court next after the expiration of the said thirty days, and not otherwise ; and all attachments issued and returned in any other manner than is herein before directed shall be, and the same are declared to be null and void; and all goods, chat- tels, lands, and tenements subject to such attachments shall be replev- iable by appearance and putting in special bail, or by the defendant* giving bond with good and sufficient securityf to the sheriff or other officer serving the same, which bond he is hereby empowered to take, compelling the defendant to appear at the court to which such attach- ment shall be returnable, and to abide by and perform the order and judgment of such court: Provided, always, that all goods and effects attached and not replevied as aforesaid, where the same shall appear to be of a perishable nature, on motion of the plaintiff or his attorney, the court, or, if not in term time, the judge of the superior, or any two or more of the justices of the inferior court may, and are hereby authorized and required to order a sale of such perishable property ; and the moneys arising from such sales shall be deposited in the clerk's office by the sheriff or other officer selling the same, to answer the demands of the plaintiff, (if established,) and the balance, if any, after satisfying such demand, and costs, shall by order of the said court be returned to the defendant or his attorney. 2. If any attachment shall be returned executed, and the property attached shall not be replevied as aforesaid, the subsequent proceed- ings thereon shall be the same as an original process against the body * Or his attorney, see post, sec. 17. f See post, sec. 12. 308 ATTACHMENTS. [Part IV. of the defendant where there is a default of appearance, and all such goods and chattels, lands and tenements not replevied, shall, after the plaintiff has established his demand, be by order of the court sold and disposed of for and towards the satisfaction of the plaintiff's judg- ment, in like manner as if the same had been taken under execution; and where any attachment be returned served in the hands of a third person, it shall be lawful, upon his appearance and examination in the manner heretofore directed, to enter up judgment as against the original debtor, and award execution against such third person for the moneys due by him to the absent debtor, and against such property or effects as may be in his hands or keeping belonging to such debtor, or so much thereof as will be of value sufficient to satisfy the judgment and costs thereon. 3. Where an absent debtor hath property lying in different coun- ties, the same shall be liable to attachment, and an original and copies shall issue for each county where the property may be found, the whole to be returnable to the court from whence the first original issued.—Prin. Dig. 18, 19, 20. 4. The act of 1799 is amended by the act of 1814, which declares that when any sheriff or constable shall levy any attachment on per- sonal property, claimed by any person not a party to such attach- rnent, such person, his agent, or attorney, shall make oath to such property, and it shall be the duty of such sheriff or constable to return the fact of such claim to the court to which the attachment shall be made returnable, and such court shall cause an issue to be joined be- tween the plaintiff and such claimant, and the right of property to be decided on by a jury at the same term, unless sufficient cause bo shown to induce the court to continue the same: Provided, the per- son claiming such property, his agent, or attorney, shall give bond (to the sheriff or constable serving such attachment) with security, in a sum equal to the amount of such attachment, conditioned to pay the plaintiff all damages which the jury on the trial of the right of property may assess against such claimant, in case it should appear that such claim was made for the purpose of delay. And every juror on the trial of such claim shall be sworn, in addition to the oath usually administered, to give such damages as may seem reasonable and just to the plaintiff, against the claimant, in case it shall be sufficiently shown that such claim was intended for the purpose of delay only; and it shall be lawful for the plaintiff to enter up judgment and have execution against such claimant for the amount of such verdict; and where the jury shall find the property not subject to the attachment, the claimant may enter up judgment and have execution against the plaintiff for the costs by him incurred in establishing his claim. 5. Land, or real estate, shall not be subject to be attached under or by virtue of any attachment issuing, and returnable out of the county in which such land is situated; and in all cases of claims to land levied on by virtue of any attachment, the proceedings shall be the same as those pointed out by the preceding section for claims to other property, except that such claim shall be returned to and tried in the superior court of the county where the land is situated. Chap. 1.] ATTACHMENTS. 309 6. No person who may be summoned as garnishee shall be com- pelled to answer to any attachment out of the county in which such garnishee lived at the time of serving such attachment; and when any garnishee shall return that he has in his hand a note or notes, bond or bonds, or other evidences of debt, belonging to the absent debtor, the same shall be forthwith deposited with the clerk of the court in which the attachment is pending, subject to the order of said court; and after the plaintiff shall have established his demand against the absent debtor, the court may in its discretion direct the clerk to deliver to the plaintiff in such attachment, his agent or at- torney, such note or notes, bond or bonds, or other evidence of debts, or so much thereof as will be sufficient to discharge the amount of the demand which the plaintiff shall have established against the de- fendant, taking a receipt therefor, which receipt shall be filed with the papers appertaining to such attachment, and shall be considered as a payment to that amount, unless the plaintiff shall make it ap- pear that, after due diligence used by him, he was unable to collect the amount; and where the evidence so deposited is of a debt greater than the plaintiff's demand, and will not admit of division, the court shall order the same to be sued for in such manner as will in their discretion best ensure recovery ; and the money, when collected, to be deposited with the clerk of the court in which the attachment pended, a part to be applied to the discharge of the amount due the attaching creditor, the balance to remain subject to the future order of said court. 7. No suit by way of attachment shall abate by the death of either party, where the cause of action would survive to the executor or administrator; but such death being suggested on the record, the cause shall proceed under the restrictions and regulations following: when a plaintiff in attachment shall die, the executor or administra- tor of such plaintiff shall, within six months after the probate of the will and obtaining letters testamentary or obtaining letters of ad- ministration, cause to be issued by the clerk of the court in which such attachment is pending, a scire facias, returnable to the next term of the said court, giving notice of his intention to become a party in the place and stead of the deceased testator or intestate, which shall be published at the door of the courthouse in the county in which such attachment is pending by the sheriff of said county, of at least twenty days prior to the term at which such scire facias is made returnable ; which being done, such executor or administra- tor may on motion be made party plaintiff, and the cause proceed : and where the defendant shall die, scire facias shall issue in manner aforesaid, immediately after the expiration of twelve months, which scire facias shall contain a notice to the legal representatives of the defendant, whether executor or administrator, of the pendency of such attachment, and of the intention of the plaintiff to proceed with the same ; which being published in like manner, it shall be lawful for the plaintiff to proceed with his attachment as if such death had not taken place: Provided, nevertheless, that the executor or admin- istrator of the defendant may appear at the return of the scire fa- 310 ATTACII3IENTS. [Part IV. cias, and upon giving security in terms of the act to which this is amendatory, shall be permitted to plead and defend the said attach- ment in the same manner that his testator or intestate might have done. 8. In cases of attachment pending in justices' courts, where either party shall die, such attachment shall not abate, but a notice of the intention of the representatives of the plaintiff, whether executor or administrator, to proceed, being published at the house where such justices' courts are holden by the constable of the district, ten days before the time at which parties are to be made, such parties shall thereupon be made, and the cause proceed. 9. Where any witness resides out of the state, or out of the county in which any attachment may be pending, and in which his testimony may be required, it shall be lawful for the plaintiff, on filing interrog- atories in the office of the clerk of the court where such attachment is pending, and publishing a notice at the door of the courthouse of said county that such interrogatories are filed, to obtain a commission in like manner as is prescribed by the 23d section of the judiciary act of 1799 for taking testimony in other cases. 10. In all cases, the attachment first served shall be first satisfied. 11. No lien shall be created by the levying of an attachment, to the exclusion of any judgment obtained by any creditor before judg- ment is obtained by the attaching creditor.—Prin. Dig. 20, 21, 22. 12. The act of 1799 is further amended by the act of 1816, which declares, that every attachment hereafter sued out, the property attached may be restored to the person or persons against whom the attachment may have issued, upon the defendant or defendants giv- ing good and sufficient security to the officer serving the said attach- ment, in double the debt or demand for which the said attachment may have been issued and granted ; or the said defendant'or defend- ants may file his, her, or their defence to the petition or declaration of the attaching creditor or creditors, and enter into the same defence as if the property attached had been replevied. 13. When a debt is not due, and the debtor or debtors is or are removing, or is or are about to remove without the limits of the state, and oath being made by the creditor, his agent or attorney, of the amount of the debt to become due, and the debtor or debtors is or are removing, or about to remove without the limits of the slate, an attachment may issue against the property of such debtor or debt- ors, but the defendant may relieve his property by giving to the cred- itor good security to pay the money when due, and costs.—See sec. 16, post. 14. In all cases where any attachment may issue against any per- son absent, on the trial of the same, any person may act as a friend, give good special bail, and by himself or attorney plead and defend the suit in the same manner as though the defendant was personally present to doit himself.—lb. 22, 23. 15.# In any case where a person or persons has been a security * This and the next five sections are contained in the act of 1820.—Daw. Comp. 202. Chap. 1.] ATTACHMENTS. 311 for another in a note, obligation, or other instrument of writing, and has been compelled to pay off the same by legal process, or has paid it by being called on by the person or persons holding such note, obligation, or other instrument of writing; and in cases where suit is pending upon any such note, obligation, or instrument in writing against the principal and security or securities, or against either or any of them; and in cases where such note, obligation, or other in- strument, to which there is or are security or securities, is or are not due, and the principal debtor or debtors in any such case is or are removing, or is or are about to remove, or have removed without the limits of this state, or any county, and oath being made by the secu- rity or securities, his, her, or their agent or attorney in fact or at law, of the facts, and of his, her, or their liability on said note, obliga- tion, or other instrument in writing, and that his, her, or their princi- pal is or are removing, or about to remove, or have removed with- out the limits of this state, or any county therein, an attachment may issue against the property and effects of such principal debtor or debtors in favour of such security or securities: and in cases where the debt has been paid by such security or securities before the issuing such attachment, the said security or securities shall be authorized to proceed to judgment on such attachment, and to recover judgment for the amount to which the person suing out such attachment is entitled: and in case of suing out such attachment by a security or securities, in a case where a suit or suits may be pending as afore- said, or on a demand where the note, obligation, or other instrument of writing is not due, such security or securities shall have a lien upon the property and effects of the principal attached, until such property is replevied, or the principal debtor or debtors shall give good and sufficient security to the person suing out such attachment, his, her, or their agent or attorney in fact or at law, for the payment of such note, obligation, or other instrument of writing, when it may or shall become due, or at the termination of said suit or suits -7 and in case the property shall not be replevied, the person attaching shall be admitted to proceed to establish his demand as though the debt was due, or the suit or suits determined ; and the property or effects of the principal debtor so attached by such security or secu- rities shall be disposed of in the manner pointed out in the attach- ment laws of this state, and paid into the clerk's office of the court in which such attachment may be pending, subject to be paid over by order of said court to the original creditor or creditors, when such debts shall become due. 16. Where an attachment shall issue under and by virtue of the second section of the attachment law of 1816, see ante, sect. 13, the plaintiff or plaintiffs in such attachment shall be, and hereby is and are authorized to proceed to judgment in the same manner as though the debt had been due at the time of issuing such attachment, with a stay of execution until the time the said debt should become due ; Provided, the same should not have become due before the entering up judgment. 17. In all cases of attachment, the property or effects of the defen~ 312 ATTACHMENTS. [Part IV. dant or defendants in attachment may be replevied by his, her, or themselves, his, her, or their agents or attorneys in fact or at law, in the manner pointed out in the act of 1709.—See ante, sec. 1. IS. In all cases of the issuing of attachments, the formalities and regulations provided in the said attachment law of the year seven- teen hundred and ninety-nine, except as herein excepted and provided for, shall be in full force, which the plaintiff in attachment, his, her, or their agent or attorney in fact or at law, is and are hereby author- ized to pursue. 19. In all cases wherein a suit or suits may have been instituted on any debt or demand, and pending such suit or suits, the de- fendant or defendants may place themselves in any or either of the situations in which the suing out an attachment by the laws of this state would be authorized ; it shall be lawful for the plaintiff or plaintiffs, his, her, or their agent or attorney in fact or at law, to sue out an attachment, notwithstanding the pendency of such suit or suits aforesaid; and such suit or suits shall not be pleaded in bar to such attachment; but the satisfaction received upon any such attachment may be given in evidence against any such pending suit or suits. 20. Any defendant against whom any attachment shall be sued out, under the provisions of this act, may avail himself in his defence of any set-off, properly pleadable by the laws of this state; notwithstanding such set-off may not be due at the time of suing out such attachment, or at the trial thereof.—Daw. Comp. 202. 21.* In all cases pending in any court in this state, or which may be hereafter commenced, it shall and may be lawful for the plaintiff or his attorney to issue a summons of garnishment, to be directed to any person or persons who may be indebted to the defendant, or who may have any money, effects, property, either real or personal, or any bonds, notes, or other evidences of debt Whatsoever, in his, her, or their hands, belonging to said defendant or defendants, requiring said persons to be and appear at the next term of the court in which said suit or suits may be pending, then and there to depose on oath what he, she, or they, is or are indebted to the said defendant or defendants, and what money, effects, prop- erty, either real or personal, or evidences of debt belonging to said defendant or defendants, is or was in their hands or possession at the time the summons was served: Provided, the plaintiff, or his agent or attorney, shall, before issuing the said summons, make an affidavit of the amount of the debt or demand which he, she, or they believe to be due, and that he is apprehensive of the loss of the same, or some part thereof, unless such summons do issue, and shall file the same in the office of the clerk of the court where the suit is pending, or with the justice of the peace, when within his jurisdiction. 22. In all cases where judgment has heretofore been obtained, or may be hereafter obtained, it shall and may be lawful for the plain- * This and the next five sections are contained in the act of 1822.—Paw. Comp. 208. Chap. 1.] ATTACHMENTS. 313 tiff, or h^s agent or attorney, to issue summons of garnishment, returnable to the superior, inferior, or justice's court, as the case may be, to be directed, and requiring the garnishee to depose in like manner, as in the preceding section : Provided, that the plaintiff, or his agent or attorney, shall, if required by the defendant or gar- nishee, or by any plaintiff holding a younger judgment or execution, or his attorney, swear that he believes the sum apparently due, and claimed on said judgment or execution is actually due : and Provided further, that the sheriff, or his deputy, or constable, shall enter on the said execution:, that there is no property of the defend- ant to be found. 23. That the said summons, where the same is returnable to the superior or inferior courts, shall be signed and served by the sheriff or his deputy on the garnishee personally, twenty days before the court to which he is directed to appear; and when returnable to the justice's court, shall be signed and served by a constable on the garnishee personally, ten days before the court to which he is directed to appear. 24. When any person shall fail to appear and depose, on being summoned as a garnishee, the court, on application, shall proceed against him by attachment for contempt; and when any person shall appear and depose, the after proceedings shall be as in cases of attachment: Provided, that any garnishee deposing and admitting that he is indebted to the defendant, or has in his hands and posses- sion a sufficient amount to pay the plaintiff's demand, shall be deemed a compliance with this act. 25. When any money shall be paid into court, or shall be raised by the sheriff or his deputy, or by a constable under this act, the same shall be paid over to judgments or executions against the defendant, as in other cases, according to the priority established by law. 26. This act shall extend to proceedings in the mayor's court in the city of Augusta, and Darien, and the court of common pleas, and oyer and terminer, in the city of Savannah, and the summons shall be signed and served by the city sheriff or marshal, or his deputy, on the garnishee personally, ten days before the court to which said garnishee is directed to appear: and Provided alsot that the benefits of this act shall be extended to plaintiffs in any suit or judgment which may be pending, or rendered in any court here- after established by the legislature, in any corporate town in this state.—Daw. Comp. 208. 27.* When parties plaintiffs, their agents or attorneys, intending to avail themselves of the benefit of the act of 1822, (see six pre- ceding sections,) shall file his, her, or their affidavit of the amount of his, her, or their debt or demand, in the office of the clerk of the court, or justice of the peace, in which the suit or suits is or are pending, or in which the judgment or execution was obtained on which garnishments are intended to issue, it shall be the duty of the * This and the next two sections are contained in the act of 1823.—Daw. Comp. *12. k r 314 ATTACHMENTS. IPon IV. clerk of such court, of such justice of the peace, as the case may I o, to deliver to such plaintiffs, their agents or attorneys, a certified copy of such affidavit, which, when placed in the hands of the sheriff or his deputy, or a constable, in case such certified copy shall he signed by a justice of the peace, shall be sufficient to authorize said sheriff, deputy sheriff, or constable, and they are hereby require J forthwith to make out, sign, and serve, a summons of garnishment on any person or persons who may be indebted to the defendant m- defendants in such suit, judgment, or execution : Provided, that tin person or persons, intended to be garnisheed, reside in the county in which such suit or suits is or are pending, or in which such ju You are hereby required personally to attend Baldwin County. ) at the superior court to be held for said county, on the second Monday in January next, to answer upon oath in an attachment at the instance of John Jones, v. James Jacobs, what you are indebted to the said James, or what effects you have in your hands, or had at the time of levying said attachment: this tenth day of August, eighteen hundred and thirty-five. Chappell Boutwell, Constable. 46. Form of the Levy. I have levied the within attachment upon a (slave-by the name of Bob, the property of the same James Jacobs,) and have summoned Joshua Tight as a garnishee, and also have advertised my proceed- ings according to law : this tenth day of August, eighteen hundred and thirty-five. Chappell Boutwell, Constable. 47. Advertisement. All persons concerned are desired to take notice, that I have this day levied an attachment, at the instance of John Jones vs. James Jacobs, on a (slave by the name of Bob, the property of the said James) and have summoned Joshua Tight as a garnishee in said case, the same being returnable to the next superior court for the county of Baldwin : this tenth day of August, eighteen hundred and thirty-jive. Chappell Boutwell, Constable. CHAPTER II. bastardy. 1. A bastard is one who is begotten and born out of lawful matri- mony ; so it is of all children born so long after the death of the hus- band, that, by the usual time of gestation, they could not be gotten by him. If a man dies, and his widow soon after marries again, and a child is born within such time as that, by the course of nature, it might have been the child of either husband, he may, when he arrives at years of discretion, choose which father he pleases. Children born during wedlock may, in some circumstances, be bastards; as 320 BASTARDY. [Part IV. if the husband be out of the country for above nine months, so that no access can be presumed; her issue during that period shall be bastards. So also if there is an apparent impossibility of procreation on the part of the husband; as if he be only eight years old or, the like; there the issue of the wife shall be bastards.—Clayton's Justice, 53. 2. Any justice of the peace in any county within this state, who of his own knowledge, or on information to him on oath made, of any free white woman having a bastard child, or being pregnant w ith one which it is probable will become chargeable to the county, he may thereupon cause a warrant under his hand and seal, directed to the sheritf or any constable of said county where the case may arise, and oblige the offender to be brought before him, to give security to the inferior court of the county, in the sum of one hundred and fifty pounds, for the support and education of such child or children till the age of fourteen years, or to discover on oath the father of such bastard child ; which being done, the said justice shall issue his war- rant in like manner to bring before him the person sworn to be the father of such child or children so born or to be born, who on refusing to give security for the maintenance and education of such child or children until they arrive at the age of fourteen years, and also the expense of lying in with such child or children, boarding, nursing, and maintenance, while the mother of such child is confined by reason thereof, that it may and shall be lawful for the said justice to bind over such delinquent in a sufficient recognisance, to be and appear before the next superior court which may be held in said county, and it shall be the duty of the attorney or solicitor general to prefer a bill of indictment, to be laid before the grand jury, to answer to such com- plaint as may be then and there alleged against him touching the premises.* 3. In case the woman who shall have been delivered, or is likely to be delivered, when brought before a justice refuses to discover on oath the father of such child or children so born or to be born, or give such security to appear before the next superior court, to be held in and for the said county, and to give such security as may be then and there required of her by the said court, for the maintenance and education as aforesaid of the said child or child- ren, that then it shall be lawful for the justice to commit her in manner and form aforesaid, as pointed out by this act, and in case of her refusing to make known to the said court the father of such child, or give security as aforesaid, that then it may and shall be lawful for the said court to imprison her, not exceeding three months—Prin.Dig. 50. 4. It shall be the duty of the inferior courts in the several conn- ties of this state, when any child or children have or shall become chargeable to the county where bonds are taken and to be hereafter taken, in conformity to the preceding section, for the maintenance of bastard children, to institute an action on all bonds so taken and to be hereafter taken in manner aforesaid, and prosecute the same * For the punishment of such delinquents, see ante, p. 1, c. 10, s. 26. Chap. 2.j BASTAKDY. 321 to judgment; and it shall be lawful for them to recover the full amount of said bond or bonds, which judgment or judgments shall remain open and be subject to be appropriated by the courts afore- said, from time to time, as the situation and exigencies of the said bastard child or children may require. 5. It shall be the duty of the justice or justices of the peace, before whom the aforesaid bond shall be taken, to return such bond to the clerk of the inferior court of the county in which such female shall reside, within thirty days after the same is taken.—Prim Dig. 51. 6. Voluntary Examination of a Woman with child of a Bastard. Georgia, ) The voluntary examination of Nancy Loose- Baldwin County. $ habit of the county aforesaid, single woman, taken on oath before me* I. T. Gushing, a justice of the peace for the county aforesaid, this tenth day of August, eighteen hundred and thirty-five, who saith, that she is now with child, and that the said child is likely to be born a bastard, and to be chargeable to the county aforesaid* and that Simon Carenought of said county is the father of said child. Taken and signed the day and Nancy Loosehabit. year above written, before me,' I. T. Cushing, J. P. 7. Examination after Births Georgia, I The examination of Nancy Loosehabit of Baldwin County. $ the county aforesaid, a single woman, taken upon oath before me, I. T. Cushing, one of the justices of the peace for said county, this tenth day of August, eighteen hundred and thirty-five, who saith, that on the tenth day of July now last past, she, the said Nancy, in the county aforesaid, was delivered of a (male) bastard child, and that the said bastard child is likely to become chargeable to said county, and that Simon Carenought i the father of said child. Taken and signed the day and Nancy Loosehabit. year above written, before me, I. T. Cushing, J. P. 8. A Warrant to bring a Woman suspected to be with Child of a Bastard, before a Justice of the Peace, to be examined thereupon. Georgia, ) By Isaac T. Cushing, one of the justices of the Baldwin County. ) peace for said county. Whereas, (it is known to me, or) information hath been made to me on oath, that Nancy Loosehabit of said county, single woman, is with child, which child when born will be a bastard, and is likely to become chargeable to the county : these are, therefore, to command you to apprehend and bring before me, or any justice of the peace for the said county, the aforesaid Nancy, to answer to the matters s s 322 bastardy. [Part IV. alleged against her as aforesaid, for which this shall be your sufficient warrant. Given under my hand and seal, this tenth day of August, eighteen hundred and thirlu-jive. I. T. Cushing. (L. S.) To any lawful officer to execute and return. Note.—The form of the examination, when brought before the justice upon the above warrant, does not differ from those already given. 9. Warrant against the reputed Father. Georgia, ) By Isaac T. Cushing, a justice of the peace for Baldwin County. ) said county. Whereas, upon the examination of Nancy Loosehabit, single woman, this day taken on oath before me, it appears that she is now with child, which child when it shall be born will be a bastard, and is likely to become chargeable to the said county; and the said Nancy hath confessed that Simon Carenought of said county is the father of said child, and hath charged him with the same : these are, therefore, to command you to apprehend the said Shnon, and bring him before me, or some other magistrate of said county, to answer the said charge. Given under my hand and seal, this tenth day of August, eighteen hundred and thirty-jive. I. T. Cushing. (L. S.) To any lawful officer to execute and return. When the reputed father is brought before the justice on the above warrant, he must either give a bond, in terms of the law, to indem- nify the county against all charges on account of said bastard child, or, as he has an undoubted right to traverse the charge, he must be bound over to the next superior court thereafter to answer to the same ; and in the latter event, the following is the form of the 10. Recognisance. Georgia, ) Be it remembered, that we, Simon Carenought Baldwin County, y and Richard Roe, acknowledge ourselves held and firmly bound unto his excellency the governor of said state for the time being, and his successors in office, in the just and full sum of one thousand dollars, for the true payment, of which we bind ourselves, jointly and severally, by these presents. Sealed with our seals, and dated this tenth day of August, eighteen hundred and thirty-five. The condition of the above obligation is such, that whereas the above bound Simon is charged by Nancy Loosehabit of said county, single woman, that she, the said Nancy is now with child by him, the said Simon, which child when born will be a bastard. If, therefore, the said Simon shall personally appear at the superior court to be held in and for said county on the third Monday in September next, then and there to answer said charge, and abide by and perform what the said court shall order in the premises, then the above recognisance to be void. Acknowledged before me, Simon Carenought. (L. S.) I. T. Cushing, J. P. Richard Roe. (L. S.) Chap. 2.] BASTARDY. 323 In case the reputed father refuses or neglects to give the bond of indem- nity, or the foregoing recognisance, he must be committed; of which the following is the form :— 11. Mittimus. Georgia, ) To the sheriff, or keeper of the jail of the county Baldwin County, j aforesaid. I herewith send you the body of Simon Carenought, of this county, who was this day brought before me, a justice of the peace for said county, being charged by Nancy Loosehabit, single woman, to have gotten her with child, which child when born will be a bastard ; and the same is likely to become chargeable to the said county ; and the said Simon having before us refused and neglected to give to the in- ferior court for said county a bond to indemnify the said county from all charges on account of said child, and also refused and neglected to find surety for his appearance at the next superior court for said county to answer the said charge: These are, therefore, to command you to receive into your custody the said Simon, and him safely to keep in the common jail, until he shall be thence discharged by due course of law. Given under my hand and seal, this tenth day of August, eighteen hundred and thirty-fve. /. T. Cushing, J. P. (L. S.) 12. Bond of Indemnity. Georgia, } Know all men by these presents, that we, Simon Baldwin County. $ Carenought and Richard Roe, are held and firmly bound unto the justices of the inferior court for said county, and their successors in office, in the just sum of one hundred and fifty pounds, (being six hundred and forty-two dollars and eighty-five and three- quarter cents:) for the payment of which we bind ourselves, our heirs, executors, and administrators, jointly and severally, by these presents. Sealed with our seals, and dated this tenth day of August, eighteen hundred and thirty-five. The condition of the above obligation is such, that whereas the above bound Simon stands charged with being the reputed father of a bastard child, of which Nancy Loosehabit is now pregnant (or has been lately delivered.) Now, if the said Simon do, and shall, from time to time, and at all times hereafter, acquit, discharge, indemnify, and save harmless the said justices of the inferior court, and the inhabitants of said county, from all costs, charges, and trouble whatsoever, for and by reason of the lying-in of the said Nancy with and of the birth, maintenance of, and bringing up the said child, and of and from all suits, charges, and demands whatsoever, touching and concerning the same; then the above obligation to be void, else to remain in full force. Acknowledged before me, Simon Carenought. (L. S.) I. T. Cushing, J. P. Richard Roe. (L. S.) 324 CERTIORARI* [Part IV. CHAPTER III. CERTIORARI. 1. This writ, like many others in the law, derives its name from one of the initial words used in it while all the proceedings were in Latin. It is an original writ, issuing out of a superior court, directed to the judges pf an inferior one, for the purpose of certifying or removing the records of a cause depending before such inferior court to a superior tribunal, and is usu- ally granted upon a suggestion, supported by affidavit, that impartial justice will not be administered in the court below in such cause. 2. A certiorari lies in all judicial proceedings, in which a writ of error does not lie ; and it is a consequence of all inferior jurisdictions, erected by statute, to have their proceedings returnable into the su- perior court.—L. Raym. 469, 580. And therefore a certiorari lies to justices of the peace, even in such cases where they are empowered by statute finally to hear and determine ; and the superintendency of the superior courts is not taken away without express words.—2 Hawk. 406. But it seems agreed that a certiorari shall never be granted to remove an indictment after a conviction, unless for some special cause; as where tht judge below is doubtful what judgment to give.—See 2 Hawk. 408, and tin authorities there cited. 3. A certiorari shall be granted for the state, or a private person prosecuting for the state, without special cause alleged; but it is Otherwise on the application of the defendant.—2 Hawk. 407; see 2 Com. Dig. 185, 189. 4. Writs of certiorari are seldom applied for in criminal proceed- ings, and will be granted only in extraordinary cases, and upon par- ticular cause shown, to wit: that there cannot be an indifferent trial bad in the county where the information was made or indictment found. But whenever a certiorari is delivered to an inferior court, or justice of the peace, or coroner, they ought respectively to make the certificate, as they shall abide by it at their peril; for it cannot be amended after it is filed; and if it is not true, an action on the .case, at the suit of the party, or information at the suit of the state, will lie.—Dalt. Ch. 195, 5. Where either party in any cause in any inferior court shall take exceptions to any proceedings in any case affecting the real merits of such cause, the party making the same shall offer such exceptions in writing, which shall be signed by himself or his attorney ; and if the same shall be overruled by the court, it shall and may be lawful for such party, on giving twenty days' notice to the opposite party or his attorney, to apply to one of the judges of the superior court; and if such judge shall deem the said exceptions to be sufficient, he shall forthwith issue a writ of certiorari, directed to the clerk of such inferior court, requiring him to certify and send up to the next superior court to be held in the said county all the proceedings in said cause; and at the term of the superior court to which such proceedings shall be certified, the said superior court shall determine Chap. 3.] CERTIORARI. 325 thereon, and order the proceedings to be dismissed, or return the same to the said inferior court, with order to proceed in said cause. —Prin. Dig. 218. 6. It shall not be lawful for any judge of the superior court of this state to sanction or grant any certiorari, unless the person or persons aggrieved and applying for the same shall have previously paid all costs which may have accrued on the trial below, and have given to the magistrate or magistrates, or justices of the inferior court, or clerk of the inferior court, as the case may happen, good and suffi- cient security for the eventual condemnation money, or any future costs which may accrue. 7. The person applying for said certiorari shall produce to the judge authorized to grant the same a certificate from the magistrate or magistrates, or justices of the inferior court who tried the case, or clerk of the inferior court, whose duty it shall be to give said certificate, informing said judge that the costs have been paid and security given in terms of this act. 8. Where any doubt arises as to the sufficiency of the security tendered to any of the persons authorized by this act to take the same, the party so authorized to take the said security may compel the party to justify upon oath ; and such justification upon oath shall amount to such sufficiency, as to exonerate the party taking the secu- rity from any liability—Prin. Dig. 223, 224. The above act further provided, that no judge should grant a certiorari out of his circuit, except in certain cases ; and that no certiorari should be granted to a magistrate's court until after a jury trial; but these prohibitions are repealed by act of 1821.—Daw. Comp. 206. 9. It is agreed by all the books, that after a certiorari is allowed by the court below, it makes all the subsequent proceedings on the record that is removed by it erroneous.—2 Hawk. 417. 10. A certiorari removes all things done between the teste and return.—L. Raym. 835, 1305. 11. A certiorari removes the record itself out of the inferior court; and therefore if it remove the record itself against the principal, the accessory cannot there be tried.—2 Hawk. 459. 12. It hath been holden, that a certiorari for the removal of a recognisance for the good behaviour, or for an appearance at court, will supersede its obligation ; but this would be highly inconvenient, and the contrary opinion seems to be supported by the better authority. —Ib. 418. 13. If a supersedeas come out of a superior court to the justice's, they ought to surcease, although the supersedeas be awarded against law ; for they are not to dispute the command of a superior court, which is a warrant from them.—Crom. 129. 14. Every return of a certiorari ought to be under the seal of the inferior court, or of the justice or justice's to whom it is directed ; and if such court have no proper seal, it seems that the return may well be made under any other. Also, every such return must be made by the very same person to whom the certiorari is directed.— 2 Hawk. 419. 326 CERTIORARI. [Part IV. 15. If the certiorari issue to use the record as evidence, then the tenor, if returned, is sufficient, and countervails the plea of no such record ; but if the record is to be proceeded upon, the record itself must be removed, and this whether it is before judgment or after; and in this case the writ must be superseded and not quashed, which can only be done on a view of the record itself.—Woodcroft v. Kines- ton, 2 Atkyns. 317. 16. If the person to whom a certiorari is directed do not make a return, then an alias, that is, a second writ, then a pluries, that is, a third writ, or causam nobis signijices, shall be awarded, and then an attachment.—Crom. 116. Besides these general rules which are common to all certioraris, there are many times special directions about them, in particular cases. The following forms have been arranged in reference to proceedings in justices' courts, but will serve as a guide to clerks of the inferior courts, who will find no difficulty in adapting them to suit cases in those courts. 17. Form of a Petition for Certiorari. Georgia, ) To the honourable , judge of the Baldwin County, j superior court of the Ocmulgee circuit. The petition of William Williamson respectfully showeth:— That one James Johnson instituted his suit against your petitioner, in the -justice's court held by Isaac T. Cashing and Thomas Long;, Usqrs. holding courts in the ninety-fifth district in Baldwin county, on a promissory note of thirty dollars, (or account, as the case may be,) which said cause was docketed at the May term of said court eighteen hundred and thirty-five, at which term your petitioner filed his plea in writing, which was to the jurisdiction of the court, stating that there was a justice's court held nearer to the residence of your petitioner than that of the ninety-fifth district, to wit, in the ninety-sixth district, which was at least one mile nearer, and the only one to which your petilioner could be legally summoned in such cases, he being a justice of the peace ; all which was verified on oath, which plea the aforesaid justices overruled, and the next court gave judgment against your petitioner, [or if the error be alleged to have been committed in deciding any point of law, in any stage of the suit, let it be slated fully.'] Therefore your petitioner alleges error, prays your honour to grant him a writ of certiorari, to be directed to the justices* of the said ninety-fifth district, requir- ing them to send up and certify to your honour the proceedings in the said cause, that your honour may do as to justice shall appertain; and in the mean time, that all further proceedings in the same be stayed. William Williamson.] 18. Form of the Oath. Georgia, > Before me, Isaac T. Cashing, a justice of Baldwin County. 5 the peace for said county, personally came * If the decision was made by one justice, it should be so stated in the petition"; and in such case, the petition would be directed to him alone, and he alone is bound to answer.—See ante, sec. 14. t This petition may be signed by the party or his attorney. Chap. 3.] CERTIORARI. 327 William Williamson, who being duly sworn, saith, that the facts stated in the foregoing petition are true. Sworn to before me, this tenth William Williamson. day of August, 1835. I T. Gushing, J. P. 19. Form of the Certificate. BaldwiZ County. } In iustice's court for the district, James Johnson, } vs. > Debt, and judgment for plaintiff. William Williamson. ) We, the justices of the peace for the said district, do certify to his honour , judge of the superior courts of the Ocmulgee district, that the defendant in the above cause has paid all cost that has accrued on the trial, and given security for the eventual condem- nation mqney in terms of the law. I. T. Cashing, J. P. Thomas Long, J. P.* 20. Form of the Writ. Georgia, ) To the justices of the peace, in and for the ninety- Baldwin County, j fifth district in Baldwin county. Whereas, William Williamson alleges, by his petition, that error hath been committed in a certain cause lately determined in your court, between one James Johnson and the said William Williamson ; and being willing that all the proceedings in said cause be certified and sent up to us, in order that justice may be done and the error (if any) rectified : We therefore command you, under the penalty of disobedience to our writs, that you certify and send up to the superior court to be holden in and for the county of Baldwin on the second Monday in January next all the facts in said cause, with all proceedings touching the same ; and in the mean time, let all proceedings be suspended ; and have you then and there this writ. Given under my hand and seal, this 20//t day of August, 1835. , j. s. c. o. c. (L. a) As soon as the justice receives the writ, he should set about making his return, which should be annexed to the writ; and when the return is prepared and annexed, the writ should be endorsed as follows:— " The execution of the within writ appears hy the schedule thereunto annexed.'" I. T. Cashing, J. P. 21. Form of a Return. Georgia, } We, Isaac T. Cushing and Thomas Long, justi- Baldwin County. $ ces of the peace for the ninety-fifth district in said county, do certify to his honour the judge of the superior courts in the Ocmulgee district, that on or about the twentieth day of April last, James Johnson, in the annexed writ named, complained before * For the manner of docketing, notifying, and serving certioraris, see Rule of Court, ante, p. 2, c. 9. 328 CERTIORARI. [Part IV. us against William Williamson, also in the said writ named, of a pica of debt to his damage thirty dollars, and asked of us process on his said complaint: whereupon, in pursuance of the authority given us by the statue in such cases provided, we issued a summons, directed to any lawful constable of the county aforesaid, commanding him to summon the said defendant to appear before the justice's court to be held in and for the said ninety-fifth district on the first Saturday in May (then) next ensuing, to answer the said plaintiff in a plea of debt to his damage thirty dollars ; which said summons, on the day men- tioned for the return thereof, was delivered to us by Chap pell Lout- well, one of the constables of the said ninety-fifth district, with an en- dorsement thereon, signed by him, that he had served the same on the defendant personally, (or by leaving a copy thereof at his notorious place of abode,) on the twenty fourth day of April, 1835. We do also certify, that on the said first Saturday of May, the said defendant appeared before us, and made his defence, by filing his plea in writing, which was to the jurisdiction of the court, which said plea is hereunto annexed. This being the appearance term, the said cause was dock- eted. We further certify, that on the first Saturday of June following, the said cause was called up for trial: whereupon, we the said justices gave judgment for the plaintiff. And more especially as to the facts stated and referred to in the affidavit on which the said writ was procured, a copy of which is here- unto annexed, we do further certify, that the defendant did not make it appear to us, that there was another justice's court holden nearer to his residence than the said ninety-fifth district, by the proofs which he offered, to wit: \Jiere state the evidence tendered, plainly and specifically ;* and if none was offered, let it be so stated.] We therefore overruled the said plea, and entered judgment against him for the said debt, interest and costs; all which we send, with the process, pleadings, and other things touching the aforesaid proceed- ings and judgment, in as full and ample a manner as the same remain before us, as by the said writ we are commanded. Given under our hands and seals, this twentieth day of August, 1835. I. T. Gushing, J. P. (L. S.) Thomas Long, J. P. (L. S.) Copy Process, 'BalJwin^mvXj j ^ an^ constable to execute and return. James Johnson ) vs. V Debt. William Williamson. ) The defendant, of the ninety-fifth district, is hereby required to be and appear at a justice's court to be holden at Milledgeville, in said * The justice should state the identical facts proved by the defendant, and not his version of them, that the judge before whom the certiorari is returned may judge for turn- self of the sufficiency of the facts to sustain the allegations. To enable the justice to do this, he should in all such litigated cases take a memorandum of the evidence in writing, and carefully preserve it. Chap. 4.] courthouses, prisons, and prison bounds. 329 district, on the first Saturday of May next, at the hour of ten o'clock, A.M., then and there to answer the complaint of James Johnson, plaintiff, as aforesaid, in an action of debt due by William William- son, a copy of which is hereunto attached: herein fail not, as in de- fault the court will proceed as to justice shall appertain. Given under my hand and seal this twentieth day of April, 1835. I. T. Cushing, J. P. (L.S.) Endorsed, "/Served the within summons on the defendant per- sonally, twenty-fourth April, 1835. Chappel Boutwell, Constable. Copy of Note attached to the above Process. One day after date I promise to pay to James Johnson or bearer thirty dollars, value received : this 1st January, 1835. William Williamson. Copy Defendant's Plea. In justice's court for the ninety fifth district, Baldwin county, 5th May, 1835. James Johnson 1 vs. > Debt. William Williamson. ) And now comes the defendant, and for answer pleads to the juris- diction of the court; for that the said justice's court for the ninety- fifth district is not the nearest justice's court to which he could be legally summoned; he being an acting justice of the peace, and in that case the justice's court held in the ninety-sixth district is that to which he ought to be caused to answer. William Williamson. Copy of the Testimony in the Case. 1st witness for plaintiff proved that, &c. (state his evidence.) 2d witness for plaintiff proved, &c. (state his evidence.) 1st witness for defendant proved, &c. (state his evidence.) And so on of all the testimony of all the witnesses sworn. CHAPTER IV. courthouses, prisons, and prison bounds. 1. The justices of the inferior courts of every county within this state, in their respective counties shall cause to be erected and kept in good repair, (or where the same shall be already built,) shall main- tain and keep in good repair, at the charge of such county, one good and convenient courthouse of stone, brick, or timber, and one suffi- cient jail with the necessary apartments for the safe keeping of crim- inals and debtors, well secured with iron bars, bolts, and locks.— Prin. Dig. 124. 2. The inferior courts in each county shall have full power and t t 330 COURTHOUSES, PRISONS, [Part IV. authority at all times to inquire into the conduct of jailers and the state of jails in their respective counties, and on neglect of duty to cause such jailers to be removed by an order to the sheriff for that purpose, and the said courts shall have full power and authority to call on all persons, their heirs, executors, or administrators, in their respective counties, who have had, or may have, county moneys in their hands, collected for the express purpose of building courthouses and jails, or for any other county purposes whatever ; and in case of neglect or refusal to pay the same, the said court shall and are hereby required to cause executions to be issued for the full amount appearing to be due in the same manner as the treasurer is authorized by law to issue executions against the defaulting collectors of taxes in the different counties ; and such moneys, when collected, may be applied by such court to the uses and purposes of building and repairing courthouses and jails.—Prin. Dig. 124. 3. The said county courts are hereby authorized and empowered to levy a tax on their respective counties, which tax it shall be the duty of the collector of the general tax to collect and pay into the hands of the clerks of such courts, he first giving bond with approved security to such court for the faithful collection and payment of the said tax at any time he shall or may be required by the said court so to do: Provided, always, that the tax to be levied by such courts as aforesaid shall not exceed one fourth part of the general tax, \* hich said moneys, so assessed and collected as aforesaid, shall be subject to the order of the county courts, one half to be applied to the uses and purposes aforesaid, and the other to the support of the poor and building bridges; and the collectors shall be allowed the same coin- missions and fees for such collection as is allowed by law for the col- lection of the general tax, and shall be liable to the same fines and forfeitures for any default, neglect, or improper conduct; which said fines and forfeitures may be imposed by the county court of each county at their discretion.—lb. 125. 4. All moneys that now are or may hereafter come into the hands of the clerks of the superior or inferior courts by fines or forfeitures, and all money arising from the sale of estrays, are hereby made liable and subject to the draft or order of the several county courts, to be appropriated and applied as aforesaid, either in the building or repairing courthouses and jails, or to the support of the poor, and building bridges, at the discretion of such courts.—lb. 125. 5. No jailer shall put any person into irons unless he is confined for a capital offence, and it is so expressed in the warrant.—lb. 343. 6. It shall be the duty of the sheriffs of each county, whenever a criminal or criminals, or other person or persons, are confined in the jail of th6 county of which he is sheriff, to furnish or procure medical aid whenever the sickness of the person or persons confined in jail require said aid; it shall also be the duty of the sheriff to furnish such person or persons so confined with fire, whenever the form of the jail admits of the same, and the coldness of the weather makes fire necessary to comfort and health ; it shall also be the duty of the sheriff to furnish such persons so confined with a sufficient quantity Chap. 4.] AND PRISON BOUNDS. 331 of blankets and clothing for the health and comfort of persons so confined: Provided, the person or persons so confined have not ihe power of procuring blankets and clothing themselves ; it shall also be the duty of the sheriff to keep the jail of the county of which he is, sheriff in that state of cleanliness necessary to health : Provided, nothing contained in this act shall be considered as arresting or taking from the corporation of the city of Savannah the right and control over the jail of the county of Chatham, now exercised by them under a special act of this state.—Prin. Dig. 378. 7. If any sheriff should, by his negligence, permit any criminal or criminals, or other person or persons confined in the jail of the county of which he is sheriff to suffer in health for the want of such medical aid, fire, blankets, clothes, and cleanliness as above pointed out, he shall be subject to indictment for such neglect, and, upon conviction, shall be fined by the court in a sum not more than five hundred dollars, which fine shall be paid to the clerk of the inferior court of the county, and made part of the county funds.—lb. 8. The jailers of the several counties of this state shall be allowed to charge the sum of fifty per cent, on all charges heretofore allowed by law.—lb. 9. Whenever the sheriff of any county shall have incurred any ex- pense in the performance of his duty as above prescribed, he shall lay before the inferior court of the county of which he is sheriff an ac- count of the same, who shall pay the same out of any funds belonging to said county, in preference of all other claims upon said fund what- ever.—lb. 378, 379. 10. The sheriffs of the several counties of this state shall, under the direction of the inferior courts of the counties where jails are built, lay off, or cause to be laid off, around the jails, in such manner as they may deem most convenient and proper, ten acres. And in the coun- ties where no jails are yet built, it shall be the duty of the sheriff, under the direction of the inferior court in those respective counties, within three months after a jail is erected in the same and received, to lay off the same number of acres as is provided for in this act, which limits, when so laid off, in each case shall be held and consid- ered as prison bounds.—Daw. Comp. 203. So soon as prison bounds are ascertained in the manner herein before pointed out, and any person shall be arrested and committed to jail by an officer, upon civil process, and the person so arrested and committed to jail shall tender to the officer committing the said person to jail a bond with good and sufficient security in a sum of double the amount of the debt or demand for which he, she, or they are committed to jail; which bond the said officer so arresting is hereby authorized and re- quired to take, with condition that if the person or persons so arrested and committed to jail do at any time, without being legally discharged, pass or leave the boundaries so laid off and defined as prison bounds, such passage or departure of said bounds shall be taken and considered as an escape and forfeiture of said bond: and the sheriff or other officer taking such bond and security shall be bound, on the application of the plaintiff in such case, his attorney at law or in fact, to assign the same to the plaintiff, who may upon such bond and assignment commence 332 DEEDS AND [Part IV an action for the breach of the same against the principal or principals, and his, her,-or their security or securities at the same time, and shall recover against the principal or principals in said bond, and his, her, or their security or securities, the amount of debt or demand, with interest and costs, for which the person or persons was or were ar- rested and committed to jail: Provided, nevertheless, no person so arrested and committed to jail shall have the benefit of such bounds for a longer term than six calendar months at the instance of the same plaintiff.—lb. 204. In case any sheriff or other officer so ar- resting and committing a person Or persons to jail upon any civil process, shall refuse to receive such bond as i's herein before set forth, the officer so refusing shall be subject to indictment for malpractice in office: and in case the officer shall take insufficient security, he shall be held liable to the plaintiff in the several modes pointed out in the laws heretofore passed, prescribing the liability of sheriffs and other officers; and in case the arrest should be made by a coroner, he shall be held to all the liabilities that a sheriff would be were the arrest made by him.—Ib. 204. CHAPTER V. DEEDS AND MORTGAGES. 1. All deeds of mortgage upon real property which have been heretofore executed shall, after having been proved, as in case of deeds of real property, be recorded in the clerk's office of the superior court of the county in which such real property may lie, within twelve months after the passing of this act; and that all the deeds of mort- gage upon personal property which have been heretofore executed, shall be proved by the affidavit of the subscribing witness, and re- corded in the clerk's office of the superior court of the county in which the mortgager shall have resided at the time of the making of the same, or if he be dead, in the county where his legal representa- tives reside at the time of recording the same ; or if there be no legal representatives in the county where the mortgager last resided pre- vious to his death, within twelve months after the passage of this act: Provided, that nothing herein contained shall be so construed as to require mortgages which have already been recorded to be again re- corded, but the same shall be held and deemed to be legally recorded and admitted in evidence under the laws now in force in this state: and Provided, also, that if the witnesses to any mortgage are dead, or removed from the county, then the same may be recorded upon the affidavit of one or more persons who are acquainted with the handwriting.—Daw. Comp. 222. 2. All deeds or mortgages upon real property hereafter to be made, shall be proved in the same way as is above required by the preceding section for the proving of mortgages of real estate, and shall be re- corded in the clerk's office of the superior court of the county in which such real estate shall lie, within three months from the date of such deed ; and that all deeds of mortgage upon personal property here- Chap. 5.] MORTGAGES. 333 after to be made, shall be proved in the same manner as is provided in the first section of this act for the proving of like deeds- heretofore made, and shall be recorded in the clerk's office of the superior court of the county in which the mortgager resided at the time of the exe- cution of the said mortgage, within three months after the date of such mortgage.—Daw. Comp. 222. 3. Every deed of conveyance or mortgage of either real or per- sonal property hereafter to be made, may, upon being executed in the presence of, and attested by, a notary public, judge of the superior court, justice of the inferior court, or justice of the peace, (and in cases of real property by one other witness,) be admitted to record, and made evidence in the different courts of law and equity in this state, as though the same had been executed, proved, and attested as heretofore required by the laws of this state in case of deeds of real property.—lb. 4. Upon failure to record any mortgage, as herein before required, within the time or times herein before specified for recording the same, that then and in such case all judgments obtained before the foreclosure of the said mortgage, and, also, any mortgage executed after the same, and duly recorded, shall take lien on said mortgaged property in preference to the said mortgage.—lb. 5. And whereas personal property is frequently mortgaged while beyond the limits of this state, which property so mortgaged is after- ward brought within the limits of this state, before the debt for which the same was pledged is satisfied: Be it enacted, fyc., that in cases of mortgages of personal property, executed when the said property so mortgaged is beyond the limits of this state, and which property shall be afterward brought within the limits of this state, such mort- gages shall be recorded within six months after the said property shall be so brought in, in the office of the clerk of the superior court of the county where the person so bringing the said property shall first establish his residence.—lb. G. That if the holder of any mortgage of property so brought into the state shall fail to record his mortgage at the place and within the time specified in the preceding section for the recording of the same, then and in such case any and all judgments which shall have been duly obtained against the said mortgager before the foreclosure of such mortgage, shall be entitled to take lien on the said mortgaged property, prior to the said mortgage : Provided, that if the said mort- gagee, or his assignee, or the legal representatives of such mortgagee or assignee shall, on foreclosure of the said mortgage, make affidavit before the judge or justice granting such foreclosure, that he was the holder of the said mortgage at the time of the removal of the said property into this state, and that he did not know, before the expira- tion of the time fixed as aforesaid for recording such mortgages, that the said mortgaged property had been removed within this state: or if the said debt be not due, and the mortgagee, or his legal repre- sentatives or assignee, shall make a like affidavit before a judge or justice as aforesaid, and place the said mortgage and affidavit together on record in the proper office herein before specified; then and in 334 DEEDS AND [Part IV. such case the said mortgage shall be considered and taken from that time to have and be entitled to the same lien as if the same had been duly recorded.—Daw. Comp. 222. 7. That all deeds of land which may have been recorded on the oath of one* or more of the subscribing witnesses, or if subscribed by two or more witnesses, one of whom attested the same as a judge of the superior court, justice of the inferior court, justice of the peace, or notary public, shall have been recorded in their official attestation ; such deeds, though not recorded within the time prescribed by law, shall be admitted in evidence in the same manner as deeds which have been duly recorded ; and when the originals of such deeds are lost or destroyed, and that fact is made known to the court, the copies of such deeds, taken from the record, and duly attested by the person having the custody of the same, may be read in evidence before any court of law or equity in this state. And all deeds, other than mort- gages, executed and proven as stated in this section, but not recorded, may be recorded within twelve months from the passing of this act, (26th December, 1827.)—lb. 8. That so much of the judiciary act of 1799 as makes it neces- sary for all rules to foreclose mortgages on real estates to be pub- lished in one of the public gazettes of this state, at least once a month, for twelve months, or copies of said rules be served on the mortgagers or their special agents, at least six months previous to the time the money is directed to be paid, be, and the same is hereby re- pealed; and that in lieu thereof, it shall only be necessary for said rules to be published in one of the public gazettes of this state once a month for suf months, or be served in the mariner mentioned in said act three months before the time at which the money is directed to be paid: Provided, that nothing in this act shall be so construed as to affect any mortgage which may exist at and before the passage of this act.—lb. 218. 9. When any person or persons, his, her, or their agent or attorney, shall petition the superior court as prescribed by the judiciary of 1799, for the foreclosure of any mortgage on real estate, the court shall grant a rule directing that the principal and cost shall be paid into court within six months thereafter, which rule shall be published in one of the public gazettes of this state once a month for four months, or served on the mortgager, or his, her, or their special agent or attorney, at least three months previous to the time the money is directed to be paid : Provided, that nothing in this act shall be so con- strued as to affect any mortgage which may exist at the time of the passage of this act, (1829.)—lb. 230. 10. That from and after the passing of this act, (1826,) all deeds for lands which may have been recorded upon the lawful affi- davits of two or more subscribing witnesses, or by being subscribed and witnessed by one or more witnesses and a notary public, judge * But see the act of 1826, post, sec. 10, 11, which was 'superseded by this act of 1827, but having been revived by the act of 1834, the act of 1826 is now in force, but will expire by limitation on the 20th December, 1835. t Four months.—See next section. Chap. 5.] MORTGAGES. 335 of the superior court, justice of the inferior court, or justice of the peace, but not recorded within the time prescribed by the laws of this state, shall be admitted in evidence without further proof; and when the originals are lost or destroyed, and that being made judicially known to the court, copies of the same may be in- troduced and read in evidence on any trial before any court of law or equity in this state.—Daw. Comp. 217. 11. That all deeds executed and proved according to the laws of this state, but not yet recorded, may nevertheless be recorded within twelve months from the passage of this act, upon the usual proof of their execution ; and when so recorded, the same, or copies thereof, may be read in evidence without further proof.—lb. 218. By the act of 1834, page 94, it is provided, that " all deeds executed in the manner pointed out by the act of 1826, (the two preceding sections,) between the limitation of the same and the passage of this act, shall be on the same footing as those therein recited; and that the aforesaid act, so revived, shall be and remain in full force and virtue for twelve months from the passage of this act," (20th December, 1824.) In regard to the due execution and record of conveyances in Georgia, various opinions have been entertained, which have led to various and con- tradictory decisions in our own courts. In'the year 1825, this subject was critically examined by Mr. Schley, and his opinion thereon published in a note on the statute 27 Hen. VIII. e. 10, (see his Digest, page 163.) The fol- lowing are among his closing remarks; which, without any further extract, will show his opinion on the law, and on the decisions of the courts at that time:— "The courts of Georgia have generally considered the recording of a deed as intended to make it evidence, without proof by the subscribing wit- ness, or other mode pointed out by the common law, and have therefore de- termined, that a deed which has been recorded within twelve months after its date shall be received in evidence, without further proof; while they re- quire the usual proof of a deed which has not been recorded within that time : and whether recorded or not, it is considered a good and valid convey- ance to pass the use and change the property. Now, this opinion is cer- tainly not founded in law, because none of the registry acts say, that the re- cording of a deed shall make it evidence, without being first proved in the ordinary common law mode ; and the act of 1785 expressly requires that a deed be recorded in order to make it good and valid. Yet the judges, con- temporary with the statute of 1785, having so construed it as to make all deeds recorded within twelve months from their dates, evidence without proof, and all deeds, whether recorded or not, valid after proof,* it may be proper to adhere to such decisions, on the ground that contemporaneous expositions of a statute, which have long been acquiesced in, may be considered as fixing the construction.—See Stuarts Laird, 1 Craneh, 299, 309. This exposi- tion, however, goes entirely to defeat the object of the statute of 1785, and to dispense with the recording of deeds, and can only be adhered to because a different and proper construction would shake half the titles in the state. We must therefore say, stare decisis, and now consider the law as fixed, for Communis error facit jus." 12. Form of a Deed. Georgia, ) This indenture, made this tenth day of August, Baldwin County. ) in the year of our Lord one thousand eight hundred and thirty-five, between Charles Smith, of the county and * See ante, sec. 7. 336 DEEDS AND [Part IV. state aforesaid, of the one part, and Richard Roe of the same place, of the other part, Witnesseth, that the said Charles Smith, for, and in consideration of the sum of one thousand dollars to him in hand paid, at and before the sealing and delivery of these-presents, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, and conveyed, and does by these presents, grant, bargain, sell, and convey unto the said Richard Roe, his heirs and assigns, all that tractor parcel of land, situate, lying, and being, (it is necessary barely to describe the property plainly and substantially, that it is intended to be conveyed, whether it be lands, or houses and lots, or any other real property ; it is better in most cases, where the premises can be described without it, to omit a description by metes and bounds.) To have and to hold said tract or parcel of land, unto him, the said Richard Roe, his heirs and assigns,'together with all and singular the rights, members, and appurtenances thereof, to the same in any manner belonging, to his and their own proper use, benefit, and behoof for ever in fee simple. And the said Charles Smith, for himself, his heirs, executors, and administrators, the said bargained premises unto the said Richard Roe, his heirs and assigns, will warrant, and for ever defend the right and title thereof against themselves, and against the claim of all other persons whatever. In witness whereof, the said Charles Smith hath hereunto set his hand and seal, the day and year above written. Signed, sealed, and delivered, in Bryant, Charles Smith. (L. S.) I. T. Gushing, J. P. Two witnesses are enough to a deed ; and if one of them is a justice of the peace, judge of the superior, or justice of the inferior court, or notary public, it will be admitted to record, without any other or further probate, but if neither should be a justice, or other officer as above, the following is the form of the probate, which must be inserted on the back of the deed :— Georgia, ) Personally came before me John Bryant, who Baldwin County. ) being duly sworn, deposeth and saith, that he saw Charles Smith sign, seal, and deliver the within deed for the purposes therein mentioned, and that the deponent subscribed the same as a witness, and saw Caleb Murphy do so likewise. Sworn to and subscribed before, me, this tenth day of August, eighteen John Bryant. hundred and thirty-Jive. I. T. Cashing, J. P. The deed must be recorded in twelve months, in the clerk's office of the superior court, in the county where the land lies, and if it lies on both sides of the dividing line between two counties, it ought to be recorded in both counties. Formerly, it was necessary that the wife should join the husband in all conveyances of lands, and also make a special relinquishment of her dower; but by the act of 1826, (see post, c. 6, s. 10,) the husband can make such conveyance without the consent of the wife, unless the property to be con- veyed was acquired by his intermarriage with the wife, in which case it is necessary that the wife should unite with the husband in the execution of Chap. 5.] MORTGAGES. 337 the deed; and moreover, that she should, upon private examination before a judge of the superior court or a justice of the peace, acknowledge that she •did voluntarily execute the same, with an intention to renounce her right of dower: such acknowledgment must be endorsed upon the deed, and should be in the following form:— Georgia, ) A. B., wife of the within named C. D., this day Baldwin County. J appeared before me, and being privately, and sep- arate, and apart from her said husband, examined by me, did declare, acknowledge, and agree, that she did, of her own free will and ac- cord, subscribe, seal, and deliver the within deed, with an intention thereby to renounce, give up, and for ever quit claim to her right of dower, and thirds of, into, and to, and all and singular the premises in said deed mentioned. In witness whereof the said A. B. hath hereunto set her hand and seal, this tenth day of August, in the year one thousand eight hun- dred and thirty-jive. Signed, sealed, and delivered A. B. (L. S.) in presence of I. T. Cashing, J. P. In the foregoing form, the language of the last statutory provision on the subject is adopted.—See Prin. Dig. 110, 112, 113. 13. Form of Mortgage Deed. Georgia, ) This indenture, made this tenth day of Am* Baldwin County, ) gust, in the year of our Lord one thousand eight hundred and thirty jive, between Charles Smith, of the county and state aforesaid, of the one part, and Richard Roe, of the same place, Witnesseth, that the said Charles Smith hath this day made and de- livered to the said Richard Roe his certain promissory note, sub- scribed with his hand, and bearing even date with these presents, whereby the said Charles Smith hath promised to pay the said Richard Roe, or bearer, one thousand dollars, on or before the twenty-fifth of December next ensuing the date hereof, for value re- ceived. Now, for and in consideration of the sum of five dollars, by the said Richard Roe to the said Charles Smith in hand paid, the receipt whereof is hereby acknowledged, as well as for the better securing the payment of the aforesaid promissory note, the said Charles Smith hath granted, bargained, and sold, and doth by these presents grant, bargain, and sell unto the said Richard Roe, his heirs and assigns—[Here insert whatever property is intended to he mortgaged: if it is land, or houses and lots, describe them plainly, as in a deed; or if it is personal property, describe it as in a hill of sale.] To have and to hold said bargained premises {or properly) to the said Richard Roe, his heirs and assigns, to his and their own proper use, benefit, and behoof for ever. And the said Charles Smith, for himself, his heirs, executors, and administrators, the said bargained premises (or property) unto the said Richard Roe will warrant and for ever defend against the claim of himself and his heirs, and against the claim of all other persons whatever: Provided, nevertheless, c u 338 DO WEB. [Part IV. that if the said Charles Smith, his heirs, executors, and administra- tors, shall and do well and truly pay, or cause to be paid, unto the said Richard Roe, his heirs and assigns, the aforementioned sum of one thousand dollars, on the day and time mentioned and appointed for the payment thereof, in the said promissory note mentioned, with lawful interest for the same, according to the tenor of said note, then and from thenceforth, as well this present indenture, and the right to the property thereby conveyed, as the said promissory note shall cease, determine, and be void to all intents and purposes. In testimony whereof the said Charles Smith hath hereunto set his hand and seal the day and year above written. Signed, sealed, and delivered Charles Smith. (L. S.) in presence of John Bryant, I. T. Cashing, J. P. Form of a Bill of Sale of Personals. Georgia, ) Know all men by these presents, that I, John Baldwin County. ) Doe, of the county and state aforesaid, for and in consideration of the sum offire hundred dollars to me in hand paid by Richard Roe of the same place, the receipt whereof I do hereby acknowledge, have granted, bargained, and sold, and by these pres- ents do grant, bargain, and sell unto the said John Doe, his heirs and assigns, the following property: (Here insert whatever personal 'property is intended to he conveyed, taking care to describe it plainly and distinctly.) To have and to hold the aforesaid bargained prop- erty to him the said Richard Roe, his heirs and assigns, for ever. And I, the said John Doe, for myself, my heirs, executors, and ad- ministrators, all and singular the said bargained property unto the said Richard Roe, his heirs and assigns, against me and my said executors and administrators, and against all and every other per- son and persons whatever, shall and will warrant and defend by these presents. In witness whereof I have hereunto set my hand and seal, this tenth day of August, one thousand eight hundred and thirty-five. Signed, sealed, and delivered in presence of John Doe, (L. S.) 1. T. Cashing, J. P. CHAPTER VI. DOWER. ]. Under this head it is proper to observe that the term dower relates exclusively to real property, and signifies the portion which a widow hath (being the third part) of the lands of her husband after his decease. It does in our laws in no instance apply to personal property, of which last the widow is always entitled to her dower or child's part of the real property, at her election. If she take dower, it is only a life estate in the property, and will return to her Chap 6.] DOWER. 339 husband's estate at her death, to be disposed of among the heirs; but if she choose a child's part, it will, together with her share of the personal property, be at her own disposition in any manner she may think proper, either by deed or will.—Prin. Dig. 161. 2. When any person holding real or personal estate shall depart this life intestate, the said estate, real and personal, shall be consid- ered as altogether of the same nature and upon the same footing, so that in case of there being a widow and child, or children, they shall draw equal shares thereof, unless the widow shall prefer her dower; in which event she shall have nothing further out of the real estate than such dower; but shall nevertheless receive a child's part or share out of the personal estate.—lb. 161. 3. It shall be the duty of all widows, within one year after the death of their husbands, to make their election or portion out of the estate of the deceased; and any such widow so failing to make her election shall be considered as having taken her dower or thirds, and shall for ever after be debarred from taking any other part or por- tion of the said estate.—lb. 167. 4. That the superior courts of this state shall have power and authority, upon the written application of any person entitled to dower in any lands and tenements in this state, to appoint three fit and discreet freeholders of the county in which the application is made, and to cause to be issued by the clerk of said court a writ for that purpose, to be devised and framed according to the nature of the case, directing said freeholders, or a majority of them, to enter upon such lands and tenements, and to admeasure, lay off, and as- sign the part or share thereof to which, by the laws of this state, the applicant is entitled, the persons so appointed being first sworn duly and impartially to execute said writ: Provided, that the person so applying shall give to all the parties in interest, their agents, attor- neys, or guardians, twenty days written notice, if they reside within the state, and if they reside without the state, three month's notice in one of the public gazettes of this state, of their intended applica- tion for such assignment of dower: and Provided also, that the ap- plication shall not be made until the expiration of three months after the death of the person to whom the said lands and tenements be- longed.—Daw. Com p. 215. 5. That in case any person or persons who may be interested in said land shall traverse or deny the right of the applicant to such dower, (the grounds of which traverse or denial shall be plainly and distinctly set forth in writing,) the court shall order an issue to be made up, and the same shall be tried by a special jury at the same term, unless it should appear to the court that the principles of justice should require a continuance, which may be allowed for one term, and no longer; and the verdict of the jury shall be final and conclusive between the parties.—lb. 6. That when any person is entitled to dower in lands and tene- ments, situate in different counties of this state, application shall be made in the manner and under the restrictions herein before pointed out by the superior courts in each of such courities ; and the writs 340 DOWER. [Part IV. granted by said courts shall only extend to the laying off and assign- ing dower in the lands and tenements situated within the county in which such application is made.—Daw. Com p. 215. 7. That the persons appointed for the purposes herein before ex- pressed shall return their proceedings on such writs to the term of the superior court next ensuing the one at which they were granted, there to remain of record, and which shall be final and conclusive between all the parties concerned, unless some person interested shall show a good and probable matter in bar of the confirmation of such assignment, or that the applicant is not entitled to so much as hath been assigned; in which case the court shall permit an issue to be made up and tried by a special jury without delay, unless good and sufficient cause should be shown to the court for a continuance, which may be granted for one term, and no longer; and if the jury shall find in favour of the return and assignment already made, the same shall stand confirmed, but if they should find against it, the court shall forthwith award another writ directing a new assign- ment, which shall be executed and returned as before directed, and which shall be final and conclusive to all the parties; and in all cases where the assignment so made is confirmed by the court, writs of possession, on the application of the person to whom dower is so assigned, shall be issued by the clerk of the superior court from which the writ originally issued for such assignment, to give such person possession of the lands and tenements so assigned to them. —Ib* 8. That the persons so making the assignment shall in every case give to the parties in interest ten days' notice, if they reside within the state, and if they reside without the state, two months' notice in one of the public gazettes of this state, of the time and place of making said assignment.—Ib. 9. That the persons making such assignment shall be authorized to appoint and employ a surveyor to assist in executing the writ to them directed, who together with themselves shall be entitled to such compensation for their services as the court shall deem reasonable and just; and in case the person applying for said writ shall refuse or neglect to pay the sum awarded by the court, execution shall be issued therefore as on a judgment.—Ib. 10. All conveyances of lands and tenements made by the husband alone, during the coverture, shall be legal and valid, and effectually convey the entire premises therein described, except such lands as the husband may have become possessed of by his intermarriage with said feme covert ; any law, usage, custom, or rule of court, to the contrary notwithstanding: Provided, that nothing herein contained shall prevent the widow from her right to dower in all lands of which her husband may have died seized and pos- sessed.—Ib. 217. For the mode of relinquishing dower, see ante, chap. 5, s. 12. 11. Form of Petition for Dower. Georgia, ) To the honourable the superior court of said Baldwin County. ) county, the petition of Susan Jackson, widow Chap. 7.] ENDORSERS AND SECURITIES. 341 and relict of Abner Jackson, showeth: That Abner Jackson, late of said county, deceased, departed this life seized and possessed of a certain tract of land on the waters of Camp Creek, in said county, adjoining lands of James Dobbs on the west, lands of William Dobbs on the south, lands of Davicl Dobbs on the east, and lands of Jacob Dobbs on the north, containing by resurvevj^ue hundred and fifty acres; and your petitioner further shows, that the said Abner Jack- son has departed this life above the space of three months, and that your petitioner hath given the legal notice, to all the parties in inter- est, of this intended petition or application for dower. Your petitioner, therefore, prays your honour to cause a writ of partition to be issued, for the purpose of assigning and setting off the dower to which your petitioner is entitled in the lands and tene- ments above named. And as in duty bound will ever pray, &c. This tenth day of August, eighteen hundred and thirty-five. CHAPTER VII. ENDORSERS AND SECURITIES. 1. The practice heretofore required of making a demand of the makers of promissory notes and other instruments, for the payment and performance of the same, and their giving notice of such de- mand within a reasonable time to the endorsers of said promissory notes and other instruments, shall cease and become entirely unne- cessary to bind said endorsers ; and whenever any person whatever endorses a promissory note or other instrument, he shall be held, taken, and considered as security to the same, and be in all respects bound as security, until said promissory note or other instrument is paid off and discharged ; and shall be liable to be sued in the same manner and in the same action with the principal or maker of said promissory notes or other instruments: Provided always, that no- thing herein contained shall extend to any promissory notes which shall be given for the purpose of negotiation, or intended to be ne- gotiated at any chartered bank, or which may be deposited in any chartered bank for collection: and Provided also, that nothing con- tained in this act shall be construed as to prevent the endorser from defining his liability in the endorsement. 2. Any security or endorser may, whenever he thinks proper, after the note or instrument become due, require the holder to pro- ceed to collect the same; and if he should not proceed to do so within three months, the endorser or security shall be no longer liable.—Uaw. Comp. 76, 77. The provisions of this section were re-enacted in the year 1831. See pamphlet, page 136. 3. In all cases where any person or persons hath heretofore en- tered himself as security on appeal or for stay of execution in any case, in any court in this state, and may subsequently thereto have paid off and discharged the execution issuing, in such case it shall and may be lawful for such security to apply to the sheriff, clerk, 342 ENDORSERS AND SECURITIES. [Part IV. constable, marshal, or attorney, to whom such payment may he made, and procure an entry or certificate to be made on such exe- cution that the same was paid by the security, and such security shall thereupon be entitled to the use and control of such execution for the purpose of proceeding against his principal.—Daw. Cotnp. 216. 4. In all cases of appeal where security hath been given, and hereafter given, and hereafter to be tried, it shall and may be lawful for the plaintiff or his attorney to enter up judgment against the principal and the security, jointly or severally; and execution shall issue accordingly and proceed against either or both at the option of the plaintiff, until he is satisfied: Provided, nevertheless, if the execution against the security or securities be first paid by him or them, then the execution against the principal shall still be of force and under the control of the security or securities, until the same he satisfied by said principal.—lb. 5. When security shall have been given, or may hereafter be given for the stay of an execution after judgment, execution shall issue as in cases of appeal against the principal and security, jointly or sever- ally, and proceed and be controlled in like manner.—lb. 6. When any person or persons hath heretofore or shall hereafter become bail, on recognisance or security, on bond, note, or other ^contract, and shall be sued thereon, it shall and may be lawful for such bail or security on the trial of such case to make special de- fence ; and in case it should appear to the court that one or more of the defendants is or are securities only, and not interested in the con- sideration of the contract sued on, then and in such case verdict and judgment shall be entered accordingly, and further proceedings had, -and privileges exercised as herein before prescribed in behalf of the -other securities : Provided, the plaintiff shall in no case be delayed by any dispute which may arise between the defendants, but the •court shall decide the issues, and the verdict which may have been finally rendered on the issues between the defendants, shall relate back to the time of the verdict and judgment in favour of the plain- tiff.—Ib. 216, 217. 7. That in all cases in which any person or persons hath hereto- fore become security, in the manner herein before specified, and judgment has been rendered against him or them, and execution has been issued accordingly, in which they may be able to show that he or they were security only, and as such hath or have been paid off and discharged such execution, such security or securities shall have the benefit thereof, and power to control the same, for the purpose of indemnifying himself or themselves out of the property of the principal.—lb. 217. 8. That when any security to any note, bond, or obligation, shall subscribe himself as security, such statement appended to his name on the said note, bond, or obligation, shall be held and taken as good evidence of his being such security, and the plaintiff shall sue out original and mesne process against him accordingly.—Ib. 216. 9. It shall and may be lawful for any person or persons, who Chap. 8.] estrays. 343 have heretofore become security on any note, bond, or other con- tract, and not interested in the consideration thereof, and judgment has been rendered against them, and execution issued accordingly, and such security or securities have been heretofore compelled to pay off such judgment or execution, he, she, or they shall be entitled to the control of the same for the purpose of remunerating him, her, or themselves out of the property of the principal or principals; Provided always, that it shall be made satisfactorily appear to the court from whence the execution issued, that such person or persons, assuming to have the control of any judgment or execution as afore- said, were bona fide security or securities, only upon the original bond, note, or contract, which was the foundation of the judgment and execution.—Acts of 1831, 134. 10. Where any security or securities as aforesaid, shall fail at the trial of the note, bond, or other instrument upon which he, she, or they were security or securities to make special defence thereof, it shall be lawful for such security or securities to take control, after payment thereof, of the said fi. fa. after complying with the requisi- tions of the preceding section.—lb. CHAPTER VIII. estrays. 1. It shall and may be lawful for any person upon his own free- hold, or other person having charge of such freehold in the absence of the owner thereof, and not elsewhere, to take up all estrays, whether horse, mare, colt, filly, ass, mule, neat cattle, sheep, goat, or hog, that may be found straying away from their owners ; and every person taking up estrays as above, shall within ten days, in case such estrays have been broke to service, take or drive it or them before a justice of the peace in the county, whose duty it shall be, and he is hereby required to take down in writing a particular description of the marks, natural and artificial, brands, stature, age, and colour of such estray or estrays, and immediately to issue his warrant to two or more freeholders of the vicinage, commanding them, having been first duly sworn thereto, well and truly to appraise or ascertain the value of such estray, which appraisement or valuation and descrip- tion as above, together with the name of the taker up and the place of his abode, the said justice shall, within ten days thereafter, transmit to the clerk of the inferior court of said county, taking special care that the person or persons taking up such estray do solemnly swear, or affirm, that he or they have not altered, or caused to be altered, the marks or brands of such estray; and to the best of his or their knowledge and belief, such marks or brands have, or have not (as the case may be) in anywise been altered; and that the owner to him or them is unknown.—Prin. Dig. 138, 139. 2. In case any person shall take up any such estrayed neat cattle, sheep, goats, or hogs, he shall cause the same to be viewed by a free- 344 ESTRAYS. [Part IV. holder in the county, where the same shall happen, and that the taker up be compelled to advertise said estrays, at least ten days, at the place of holding justice's courts in said district prior to tolling,, and shall immediately thereafter go with such freeholder before a justice of the peace for said county, and make oath before him, that the same was taken up at his plantation or place of residence in the said county, and that the marks or brands of such estray have not by him, or to the best of his knowledge, been altered; and then the said justice shall take from the taker up and freeholder, upon oath, a par- ticular and exact description of the marks, brands, colour, and age of all and every such neat cattle, sheep, goat, or hog, and such justice shall, in manner above directed, issue his warrant for the appraise- ment of such estrays; which description and valuation shall by the said justice, within ten days, be transmitted to the clerk of the inferior court, by him to be disposed of as herein after directed.—Prin. Dig. 139. 3. It shall be the duty of every justice of the peace, before whom any estray shall be carried as aforesaid, to enter a true copy of the certificate transmitted by him to the clerk of the court, in a book to be by him kept for that purpose.—lb. 4. It shall be the duty of the clerk of the inferior court in each county in this state, and he is hereby required to receive and enter in a book by him to be provided and kept for that purpose, all such certificates of description of appraisement as to him shall be trans- mitted from the respective justices in the county; and it shall also be the duty of the said clerk of the inferior court, to affix a copy of every such description and valuation to the courthouse of his county, for two terms successively after the same shall be transmitted to him.—lb. 5. It shall be the duty of the said clerks of the inferior courts in their respective counties, to cause an enclosure to be made at the courthouse, to be paid for out of the moneys arising from the sale of estrays, for the purpose of impounding estrayed horses, mares, colts, fillies, asses, and mules, and that all estrays aforesaid, taken up as aforesaid, shall by the taker up be brought to the said enclosure, and impounded from ten o'clock in the forenoon, until three o'clock in the afternoon, on the first day of every term for twelve months, both of the superior and inferior courts ; and the said clerks shall see that these requisitions be complied with by the taker up. And every taker up of any estray as aforesaid, shall, for every neglect to im- pound as aforesaid, be subject to a fine of five dollars, to be collect- ed by execution under the hand and seal of the presiding justice of the inferior court, and paid into the clerk's office for the use of the county; unless sufficient cause to the contrary be shown to the said court at the next term thereof.—lb. 139, 140. 6. It shall be the duty of the clerks of the inferior courts of this state respectively, within ten days after they, or either of them, may have received from any justice of the peace, (of the county for which he is the clerk,) before whom any estray horse, mare, colt, filly, gelding, ass, or mule, may have been posted, in conformity with the estray law now in force in this state, a description of such Chap. 8.] estrays. 345 estrayed horse, rnare, colt, gelding, filly, ass, or mule, to advertise such estray or estrays according to the description thereof, which he may have received as aforesaid, in the Georgia Journal, Augusta Chronicle, or Savannah Republican,* and the proprietors of said papers shall receive as compensation for the publication of such estrays, the sum of one dollar and fifty cents.—Prin. Dig. 142. 7. The said clerks respectively shall be authorized to pay out of the moneys arising from the sales of estrays the expenses incurred for such advertisement or advertisements, unless it should so happen, that the owner or owners of such estray or estrays may prove them or either of them away previous to sale ; then and in that case it shall be the duty of such clerk to demand and receive of the owner or owners of such estray or estrays, the full amount of the expenses in- curred for such advertisement or advertisements, previous to the de- livery of such estray or estrays.—lb. 8. The clerks of the inferior courts aforesaid shall be entitled to the sum of fifty cents for transmitting the description of said estrays, from the owners, if proven away, or from the proceeds of the sale of such estray, if sold.—lb. 142. 9. In all cases where expenses have been incurred, arising under this act, by advertising such estray or estrays, it shall be the duty of the said clerks respectively to remunerate such expenses out ofthe mo- ney arising from the sale of such estrays; and it shall be the duty of all such clerks to keep a fair and regular book of entry of all such expenditures, to exhibit to the inferior courts of their counties res- pectively upon application.—lb. 10. It shall be the duty of the taker up, and he is hereby required to bring to the courthouse in the county wherein he resides, and de- liver to the clerk of the inferior court of said county, every estrayed horse, mare, colt, filly, ass, or mule, on the first sheriff's sale ^day that shall happen after the expiration of twelve months from the time of entering such estray as aforesaid with the justice ; and it shall be the duty of the clerk to proceed to sell such estrajr or estrays as aforesaid on the day aforesaid, between the usual hours, for ready money to the highest bidder, which money shall in the hands of the said clerk be subject to the order of the inferior court, for county purposes, after defraying the charges or fees herein after directed. And every taker up, who shall neglect or refuse to comply with these requisitions, shall be liable for double the amount of the appraisement, to be col- lected by execution under the hand and seal of the presiding justice of the inferior court, unless sufficient cause to the contrary be shown the court at the next term thereafter ; and the said forfeiture, when collected, shall be applied to the use of the county, after deducting the legal fees.—lb. 440. 11. No neat cattle taken up as estrays, shall be sold under twelve^ * Estrays tolled in the county of Wilkes, may be advertised in the Washington News; those in the county of Columbia, in the Constitutionalist, (Augusta,) Daw. Comp. 114, 115 ; and those in the county of Henry, in some public gazette published in the town of Milledgeville.—Acts of 1832, p. 80. t Six months.—Daw. Comp. 187. X x 346 ESTRAYS. [Part IV. months from the time of being tolled ; and it shall be the duty of the clerks of the inferior courts, previous to the advertisement and sale of such estrays by the justice before whom they may have been tolled, to advertise at the door of the courthouse all such estrays, on the first day of every succeeding term of the superior and inferior courts, which may happen in the county within the said term of twelve months.—Prin. Dig. 141,142. 12. In case any person shall take up, as aforesaid, any neat cattle, sheep, goats, or hogs, and no person or persons shall appear and make satisfactory proof within three* months that the said estrays are his or their property, the justice, having given twenty days' no- tice by advertisement in two of the most public places in the cap- tain's district wherein he resides, shall proceed to sell the said es- tray,f by his constable, upon one of his court days, between the usual hours, for ready money to the highest bidder; and it shall be the duty of the justices in the several counties, and they are hereby required to pay to the clerk of the inferior court in their respective counties, at each term of said court, all moneys in their hands, that have arisen from the sales of estrays as aforesaid, deducting five per centum for commissions, and such other charges as ore allowed by law, and all moneys so paid shall be subject to the order of the in- ferior court, for county purposes.—lb. 140. 13. The justice, for his services, exclusive of commissions, shall receive the sum of twenty-five cents.—lb. 142. 14. The justice, for his services as above, shall receive from the taker up, at the time such estray or estrays shall be brought before him, or description or valuation thereof presented to him as above, the sum of seventy-five cents for each mare, horse, colt, filly, ass, or mule, and the sum of six and one fourth cents for each head of neat cattle, sheep, goats, or hogs.—lb. 140. 15. If any person or persons shall, within the term of two years from the time of such sale, prove to the satisfaction of the court! that the property so sold was his or their own, or that of his or their em- ployers, (as the case may be,) in that case the*court shall, after deduct- ing the fees and charges herein after described, pay the balance of the money arising from such sales to the claimant of such property.— lb. 140. 16. The taker up of such estrays shall, as a compensation for maintaining and keeping of the same, put them to immediate labour, if capable of service ; and if incapable, or he should prefer it, receive from the owner, if claimed, or from the court, if sold, a reasonable satisfaction, to be adjudged by the clerk and a justice of the peace for the county, according to the circumstances of the case: Provided, nevertheless, that in case the putting such estray to labour, he shall be bound to produce such estray to the owner, if claimed, or to the clerk, if sold, (casualties excepted,) in as good condition as when appraised, —lb. 140,141. * Six months.—Daw. Comp. 187. t All horned cattle, sheep, goats, and hogs, that may be tolled in conformity with the estray laws now in force in this state, may be sold at the expiration of six months from the time they are tolled.—lb. 187. Chap. 8.] ESTRAYS. 347 17. Upon the delivery of any such estray to the legal owner, or, in the case of sale, upon the sale thereof, the taker up shall receive from the owner or clerk, (as the case may be,) the sum of one dollar for each horse, mare, colt, filly, ass, mule, or ox, in addition to the sum by him paid to the justice, and the sum of twelve and a half cents for each head of neat cattle, sheep, goats, or hogs, in addition to the sums above mentioned, for the keeping and maintenance of the same.— Prin. Dig. 141. 18. The clerk of the said court shall, for the receiving, entering, and publishing every certificate as above directed, receive the sum of fifty cents, to be paid by the owner upon claiming the property, or deducted out of the money arising from such property in case of sale ; and the further sum of five per centum upon the balance of such mo- ney, as a compensation for selling, collecting, and paying ; and twenty- five cents for each estray advertised by him at the courthouse.—lb. 141, 142. 19. It shall be the duty of the clerk of said court to render to the said inferior court, at every term thereof, a true statement of all mo- neys arising from the sales of estrays as aforesaid, accompanied with the proper vouchers, and exhibit a correct statement as aforesaid to the grand jury of the county, at every fall term of the superior court, and oftener if required.—lb. 141. 20. Any person taking up an estray as aforesaid, and failing or neg- lecting to comply with and fulfil the true intent and meaning of this act, and being thereof duly convicted before the inferior court, shall, for every such offence, forfeit and pay a sum equal to double the value of such estray, so neglected to be tolled and advertised as afore- said, to be recovered by suit or action at law, the informer to be the plaintiff in the action ; one half of the sum so recovered to the use of the informer, the other half to the use of the county.—lb. 21. If any justice or clerk, shall refuse or neglect to perform the du- ties required by this act, each justice or clerk neglecting or refusing shall, for every such neglect or refusal, forfeit the sum of twenty dol- lars, one moiety to be paid to the party informing, and the other moiety to the use of the county where such offence shall be committed ; to be recovered by action of debt, in any court having cognizance of the same; and shall, moreover, be liable to an action of damages to the party in- jured, and, upon conviction, pay double costs.—lb. 241. 22. It shall be the duty of the justices of the peace and constable or constables of each captain's district in every county in this state, to notify the clerk of the inferior court of the county wherein they reside, whenever it comes within their knowledge, or when they have any reason to believe, that any execution has been levied on estrayed property.—Acts 1831, p. 86. 23. In all cases where the clerks of the inferior courts of the dif- ferent counties in this state shall receive the information aforesaid, and also where the fact may come within their own knowledge, for them to hand a written notice to the constable or sheriff, as the case may be, (who may have levied on any estrayed property,) stating that he claims the said property for the benefit of the county as an 348 FENCES. [Part IV. estray ; which said notice shall be sufficient to compel the constable or sheriff, as the case may be, to return the said fi. fa. or fi. fas, and notice, to the next justice's court of the district wherein the levy may have been made ; if the said fi. fas issued from a justice's court, or if the same issued from an inferior or superior court, then and in that event to the next inferior or superior court of the county wherein the levy may have been made; and when any notice with the execution as aforesaid shall be returned to any of the courts aforesaid, it shall be the duty of the court to cause an issue to be made up, between the said clerk of the inferior court and the plaintiff in execution, which shall be tried in the same manner as all other claim cases, the burden of proof resting on the plaintiff in execution. And in all cases where the issue shall be determined against the clerk, the county shall pay the cost.—Acts 1831, p. 86,87. 24. Oath of Persons tolling Estrays. I do solemnly swear (or affirm) that I have not altered or caused to be altered the marks or brands of such estray, and to the best of my knowledge and belief, such marks or brands have (or have not, as the case may be) in anywise been altered, and that the owner to me is unknown.—Prin. Dig. 139. 25. Oath of Valuer of Estrays. You do swear that you will well and truly view and appraise the estray (or estrays, as the case may be) in the summons to you directed, without favour and partiality, according to your skill and ability : So help you God. CHAPTER IX. FENCES. 1. All fences or enclosures, commonly called worm fences, that shall be erected and made around or about any garden, orchard, rice ground, indigo field, plantation, or settlement in this province, shall be six feet high when staked and ridered, and from the ground to the height of three feet of every such fence or enclosure the rails thereof shall not be more than four inches distant from each other ; and that all fences or enclosures that shall consist of paling, shall likewise be five feet high from the ground, and the pales thereof not more than two inches asunder: Provided always, that where any fence or enclosure shall be made with a ditch or trench, the same shall be four feet wide, and in that case the fence shall be six feet high from the bottom of the ditch.—Prin. Dig. 181. 2. If any trespass or damage shall be committed in any garden, orchard, rice ground, indigo field, plantation, or settlement, not being fenced and enclosed in manner as herein before is directed, by the irruption, breaking in, or straying of any cattle, horses, sheep, goats, or swine, the owner of such cattle, horses, sheep, goats, or swine, Chap. 10.] FREE PERSONS OE COLOUR. 349 shall not be liable to answer for such trespass, or to make good or satisfy any damage or injury that shall happen or be committed by reason thereof; and in case any person or persons shall kill, maim, hurt, or destroy, or cause to be killed, maimed, hurt, or destroyed, any cattle, horses, sheep, goats, or swine so trespassing, straying, or breaking into any garden, orchard, rice ground, indigo field, plan- tation, or settlement, not fenced and enclosed in manner as by this act is directed, all and every such person or persons shall answer and make good to the owner or owners thereof all such injury and damages as he or they shall sustain thereby.—Prin. Dig. 181. 3. No planter or other person, not having a lawful fence, shall fix in any of his enclosures any canes, or stakes, or anything that shall or may kill, maim, hurt, or destroy any cattle, horses, sheep, goats, or swine, under the forfeiture of twenty shillings sterling for every such offence.—lb. CHAPTER X. FREE PERSONS OF COLOUR. 1. All negroes, Indians, mulattoes, or mustizoes, who now are, or hereafter shall be in this province, (free Indians in amity with this government, and negroes, mulattoes, or mustizoes, who now are, or hereafter shall become free excepted,) and all their issue and off- spring born, or to be born, shall be, and they are hereby declared to be, and remain for ever hereafter absolute slaves, and shall follow the condition of the mother, and shall be taken and deemed in law to be chattels personal in the hands of their respective owners or possessors, and their executors, administrator^, and assigns, to all intents and purposes whatsoever: Provided always, that if any per- son or persons whatsoever, on behalf of any negro, Indian, mulatto, or mustizo, do apply to the judge of the superior court by petition, either during the sitting of said court, or at any time in the vaca- tion, the said judge shall be, and he is hereby empowered to admit any such person, so applying, to be guardian for any negro, In- dian, mulatto, or mustizo, claiming his or her freedom ; and such guardian shall be enabled, entitled, and capable in law, to bring an action of trespass, in the nature of ravishment of ward, against any person or persons who shall claim property in, or shall be in posses- sion of any such negro, Indian, mulatto, or mustizo; and the de- fendant or defendants shall and may plead the general issue on such action brought, and the special matter may and shall be given in evidence, and upon general or special verdict found, judgment shall be given according to the very right of the cause, without having any regard to any defect in the proceedings, either in form or sub- stance; and if judgment shall be given for the plaintiff, a special entry shall be made, declaring that the ward of the plaintiff is free, and the jury shall assess damages which the plaintiff's ward hath sustained, and the court shall give judgment and award execution 350 FREE PERSONS [Part IV. against the defendant for such damages, with full costs of suit; hut in case judgment shall be given for the defendant, the said court is hereby fully empowered to inflict such corporal punishment, not extending to life or limb, on the ward of the plaintiff, as they in their discretion shall think fit: Provided always, that in any action or suit, to be brought in pursuance of the direction of this act, the burden of the proof shall lie on the plaintiff, and it shall always be presumed that every negro, Indian, mulatto, or mustizo, (except as before excepted) is a slave, unless the contrary can be made appear. —Prin. Dig. 446. 2. In every action or suit to be brought by any such guardian as aforesaid, appointed pursuant to the direction of this act, the defend- ant shall enter into a recognisance, with one or more sufficient sure- ties, to the plaintiff, in such sum as the said court shall direct, with the condition, that he shall produce the ward of the plaintiff at all times when required by the court, unless such defendant shall prove upon oath, to the satisfaction of the said court, his inability to pro- duce such ward, and that, while such action or suit shall be depend- ing and undetermined, the ward of the plaintiff shall not be abused or misused.—lb. 446, 447. 3. The justices of the peace, with any three freeholders of the district, be, and they are hereby vested with power to bind out to service any male free negroes or persons of colour, over the age of eight years, until he arrives to the age of twenty-one years, to arti- sans or farmers: Provided, such free person or persons of colour have no guardian.—lb. 458. 4. The respective masters to whom such servants may be in- dented, shall find them sufficient clothing to protect him or them from the inclemency of the weather, and sufficient boarding and lodging. Where a complaint is made to the justices of the district where such indented servant may reside, of any ill usage by his said master, then and in that case an investigation shall be had before the said justices; and on sufficient evidence being adduced, the said bounden servant shall be released from such master, anil placed again to service, to another person of the same trade or farming.—lb. 5. The judge of the superior, or the justices of the inferior court, of the respective counties of this state, shall upon the written appli- cation of any free negro or person of colour, made at any regular term of the said courts, praying that a white person resident of the county in which such application may be made, and in which such free person of colour shall reside, maybe appointed his or her guar- dian; and upon the consent, in writing, of such guardian, appoint such white person the guardian of such free person of colour. And the said guardian of such free negro or person of colour shall be, and he is hereby vested with all the powers and authority of guardians f >r the management of the persons and estates of infants; and all suits necessary to be brought for or against such free person of colour shall be in the name of such guardian, in his capacity of guardian: Chap. 10.] OF COLOUR. 351 Provided, nevertheless, that the property of such guardian shall in no case be liable for the acts or debts of his ward.*—Prin. Dig. 458, 459. And the said persons of colour may exercise the right thus secured to them, of suing and being sued, pleading and being im- pleaded, answering and being answered unto, by the aid of a next friend as well as by such guardian.—Daw. Comp. 229. 6. The said judges of the superior, or justices of the inferior court shall, at their discretion, require security from such guardian as may be appointed for the proper management of the affairs of his ward. And such guardian shall be allowed the same compensation for the discharge of his duties as guardian as is allowed the guardians of infants by the laws of this state.—Prin. Dig. 458, 459. 7. It shall not be lawful for any person or persons to manumit or set free any negro slave or slaves, any mulatto, mustizo, or any other person or persons of colour who may be deemed slaves at the time of the passing of this act, in any other manner or form than by an application to the legislature for that purpose. 8. If any person or persons shall, after the passing of this act, set free any slave or slaves, in any other form or manner than the one prescribed herein, he shall forfeit for every such offence two hundred dollars,f to be recovered by action of debt or indictment; the one half of the said sum to be applied to the use of the county in which the offence may have been committed, the other half to the use of the informer or informers; and the said slave or slaves so manu- mitted and set free, contrary to the true meaning and intent of this act, shall be still, to all intents and purposes, as much in a state of slavery as before they were manumitted and set free by the party or parties so offending. 9. It shall not be lawful for the clerks of the superior courts, or any other officer of the state, (;o enter on record in any book of record by them kept, any deed of manumission, or other paper, which shall have for object the manumitting and setting free any slave or slaves ; (but see sec. 11, post;) and the party offending herein shall forfeit for every deed or other paper so recorded, the sum of one hundred dollars,! to be recovered by action of debt or indictment, in any court having cognizance thereof; the one half to be paid to the parly who shall sue or prosecute for the same, and the other half to the use of the county where the offender may reside.—Prin. Dig. 456,457. 10. The three preceding sections above expressed shall be strictly enforced; but the penalties therein prescribed, (except where the same shall be otherwise provided for by this act,) shall be increased to five hundred dollars, for each and every offence inhibited by the said sections; and shall, together with such penalties as are pre- scribed by this act, and the proceeds of all sales directed thereby, after deducting costs, be appropriated, one half to the use of the * Such guardian may, by consent of the inferior court, resign their guardianship at any time they may think proper.—Daw. Comp. 229. t But see sec. 10, post. t lb. 352 FREE PERSONS [Part IV. person suing or prosecuting for the same, and the other half to the use of the county in which the offence is committed ; except in the city of Savannah, where the half of such penalties hereby appropri- ated to use of the county, shall be appropriated and paid over to the use of that corporation.—Prin. Dig. 465. 11. The third of the said three sections, (see ante, sec. 9,) before referred to, shall be construed to extend to inhibit the recording only of so much of any instrument (as is therein described) as shall relate to the manumitting or setting free of any slave or slaves.— lb.; but see sec. 13, post, which declares all such deeds to be null and void. 12. It shall not be lawful for any free person of colour, (Indians in amity with the state, and regularly articled seamen or apprentices, arriving in any ship or vessel excepted,) to come into this state ; and each and every person or persons offending herein, shall be liable to be arrested by warrant, under the hand and seal of any magistrate in this state ; and being thereof convicted, in the manner herein after pointed out, shall be liable to a penalty not exceeding one hundred dollars ; and upon failure to pay the same within the time prescribed in the sentence awarded against such person or persons, he, she, or they shall be liable to be sold by public outcry,* as a slave or slaves, in such manner as may be prescribed by the court awarding such sentence ; and the proceeds of such sales shall be appropriated in the manner provided for the appropriation of penalties recovered under this act: Provided, that any person or persons, who shall have been convicted under this section, and shall have complied with the sentence awarded against him, her, or them, by payment of the penalty or penalties, shall be liable to a new prosecution, and to all the pains and penalties herein prescribed, as often as he, she, or they shall be found within the limits of this state, after the expiration of twenty days from the time of his, her, or their discharge from such previous prosecution : and Provided, moreover, that any articled seaman or apprentice as aforesaid, who may be found within the limits of this state, after the expiration of twenty days from the de- parture of the ship or vessel in which he may have arrived, or after his discharge from such ship or vessel, shall be liable to all the pains and penalties of this act.—lb. 465,466. 13. All and every will and testament, deed, whether by way of trust or otherwise, contract, agreement, or stipulation, or other in- strument in writing, or by parol, made and executed for the purpose of affecting, or endeavouring to affect the manumission of any slave or slaves, either directly by conferring, or attempting to confer free- dom on such slave or slaves, or indirectly, or virtually, by allowing and securing, or attempting to allow and secure to such slave or slaves, the right or privilege of working for his, her, or themselves, free from the control of the master or owner of such slave or slaves, or of enjoying the profits of his, her, or their labour or skill, shall be, and the same are hereby declared to be utterly null and void ; and * this part of the law repealed, see sec. 36, post. Chap. 10.] OF COLOUR. 353 the person or persons so making or executing any such deed, contract, agreement, stipulation, or instrument in writing, or by parol, and all and every person or persons concerned in giving, or attempting to give effect thereto, whether by accepting the trust thereby created, or attempted to be created, or in any other way or manner whatso- ever, shall be, severally, liable to a penalty not exceeding one thou- sand dollars, to be recovered in the manner herein after pointed out; and each and every slave or slaves in whose behalf such will or testa- ment, deed, contract, agreement, or stipulation, or other instrument in writing, or by parol, shall have been made, shall be liable to be arrested by warrant, under the hand and seal of any magistrate of this state, and being thereof convicted in the manner herein after pre- scribed, shall be liable to be sold* as a slave or slaves by public out- cry; and the proceeds of such sales shall be appropriated in the manner prescribed by the first section of this act.—Prin. Dig. 465, 466. 14. All and every free person or persons of colour residing or being within this state (except as herein before excepted) shall annually, on or before the first Monday in July, fin each and every succeeding year, while they shall continue within the limits of this state, make applica- tion to the clerk of the inferior court of the county in which they reside ; and it shall be the duty of such clerk to make a registry of such free person or persons of colour in a book by him to be kept for that purpose, particularly describing therein the names, ages, and places of residence and nativity, time of coming into this state, and occupation or pursuit of such free person or persons of colour, and such clerk shall be entitled to demand and receive fifty cents for each and every person or persons registered as aforesaid, and for granting a certificate thereof, which he shall in like manner be bound to do, (within two months after said application,) if no person shall appear to gainsay the same; and to the intent that all persons con- cerned or interested therein may have due notice thereof, it shall be the duty of such clerk, forthwith, after the said first Monday in July, in each and every year, to cause to be published in one or more of the public gazettes of the county, or, in counties where there are no gazettes, in some one or more of the gazettes of the state, a list of such free persons of colour applying for registry, with notice that certificates will be granted to such applicants, if no objections are made thereto, on or before the second Monday in August thereafter; and each and every person desirous of objecting thereto, shall file such his objections in the office of the clerk within the time specified in such notice, which proceeding shall be, by the said clerk, notified to the justices of the inferior court of such county, and shall be tried and determined in the manner herein after pointed out; and the said clerk shall grant or withhold such certificate according to the deter- mination thereof: Provided, that the expense of such publication shall be defrayed out of the county funds, where the moiety of the * So much of this act as authorizes the selling of free persons of colour into slavery, is repealed.—See post, sec. 36. f See Prin. Dig. 469. Yy 354 FREE PERSONS [Part IV. several penalties prescribed by this act is appropriated to the county, and out of the funds of the several corporate towns, where such moiety is appropriated to such corporations.—Prin. Dig. 460,467. 15. All and every person of colour, (Indians in amity with this state, or regularly articled seamen, or apprentices arriving in any ship or vessel excepted,) who shall, after the first Monday in May next, (1819,) be found within the limits of this state, whose names shall not be enrolled in the book of registry described in the preceding section, or, having been enrolled, who shall have been refused certificates in the manner therein prescribed, who shall be working at large, enjoying the profits of his or her labour, and not in the employment of a master or owner, or of some white person by and in virtue of an actual and bona fide contract with the master or owner of such per- son of colour, securing to such master or owner the profits arising from the labour of such person of colour, shall be deemed, held, and taken to be slaves, and may be arrested by warrant under the hand of any magistrate of this state ; and such proceedings being had as are herein after provided, shall be sold by public outcry as slaves, and the proceeds of such sales shall be appropriated in the manner specified in the first section of this act.—lb. 467. So much of this act as relates to selling free persons of colour into slavery is repealed.—Daw. Comp. 411. 16. All registered free persons of colour, between the ages of fif- teen and sixty years, shall be liable to do 'public work in the coun- ties or corporate towns in which they may reside, under such regu- lations, and on pain of such penalties for non-compliance as the jus- tices of the inferior courts of the several counties, and the mayor and aldermen, or intendant and wardens* or commissioners of such corporate towns shall prescribe; and it shall be the duty of such justices of the inferior court, and of such mayor and aldermen, inten- dant and wardens, or commissioners, to call out such free persons of colour, and employ them in public work within their respective jurisdictions, for a term not exceeding twenty days in one year.— Prin. Dig. 462. 17. No free person of colour within this state (Indians in amity with? this state excepted) shall be permitted to purchase or acquire any real estate,* or any slave or slaves, either by a direct conveyance to such free person of colour of the legal title of such real estate, or slave or slaves, or by a conveyance to any white person or persons of such legal title, reserving to such free person of colour the bene- ficial interest therein, by any trust, either written or parol, by any will, testament, or deed, or by any contract, agreement, or stipula- tion, either written or parol, and securing, or attempting to secure to such free person of colour, the legal title, or equitable or beneficial interest therein ; but all and singular such real estate, and each and every such slave or slaves, shall be deemed and held to be wholly forfeited, and the escheators in the several counties in this state, shall * This section repealed as to real estate, except in Savannah, Augusta, and Darien, —Prin. Dig. 469. Chap. 10.] OF COLOUR. 355 be, and they are hereby required to proceed against such property, in the manner pointed out by the several acts to regulate escheats in this state; and the proceeds of such forfeited property shall, after deducting ten per centum on the gross amount thereof, which shall be paid to the person giving information of the same to the escheator, or to the escheator himself, if he shall discover the same, and the costs of the inquisition, be appropriated, one half to the use of the county, (except in the county of Chatham, in which such moiety shall be paid to the corporation of the city of Savannah,) and the other moiety shall be paid into the treasury of the state; and all and every person or persons, who shall be concerned in covering or protecting such property, so as to secure, or attempt to secure, the legal or equitable title therein to such free person or persons of colour, contrary to the true intent and meaning of this act, shall be liable to a penalty not exceeding one thousand dollars, which shall be sued for and recov- ered in the manner herein after pointed out, and shall be appropri- ated in the mode prescribed in the tenth section of this chapter.—Prin. Dig. 467, 468. 18. All and singular the penalties prescribed by this act, and each and every proceeding directed herein, except where it is otherwise specially provided* thereby, shall be prosecuted, recovered, and en- forced against all and every white person or persons, who shall be- come amenable thereto, by action of debt or indictment in the superior courts of the respective counties, according to the ordinary course of proceedings therein; and the same shall be prosecuted, recovered, and enforced against all and every person or persons of colour, whether free or slave, before the justices of the inferior courts of the respective counties, or a majority of them, either at the regular sessions of such courts, or at special sessions to be held for that pur- pose, which the said justices, or a majority of them, are hereby em- powered to hold; and to do all needful and necessary acts therein, for giving full effect to the provisions of this act; and the said jus- tices shall in like manner be authorized to hear and determine all ob- jections which shall be made to the registry of any person of colour claiming to be free, reserving always to the judges of the superior courts the constitutional right of revising all such proceedings, for which purpose the said justices shall be required to make a special record of their several actings and doings in the premises, and of all evidence or testimony given therein, and to transmit the same, when required, to the said judges : Provided, always, that in all trials which may be had under this act, except for the enforcement of penalties against white persons, the court shall be authorized to require the answers on oath (to such questions touching the same as they may deem relevant) of all and every white person or persons claiming title to such persons of colour, or to any real or personal property which shall be proceeded against as forfeited under this act, or in whose employment such person of colour may be, or who may be guardian of such person of colour, and the same shall be read in evidence therein.—lb. * See sec. 315, post. 356 FREE PERSONS [Part IV. 19. It shall be the duty of all courts and judges before whom any proceedings may be had under this act, so to construe the several pro- visions thereof, as to carry the same into full and complete operation, according to the true spirit, intent, and meaning thereof; and all and every such courts and judges are hereby invested with full power for such purposes, and are authorized and required to make all necessary rules and regulations, and to adopt all needful proceedings not herein specially provided, according to the usual course of justice, which may be at any time required for the purposes aforesaid.—Prin. Dig. 468, 469. 20. All warrants issued by any magistrate under this act, against any person of colour, whether free or slave, shall be returned by the officer executing the same to the justices of the inferior court of the county in which the same may be issued; and the said justices, or a majority of them, shall proceed immediately to hear and determine thereon, making such record of their proceedings as is herein before provided.—lb. 465-469. 21. The eleven preceding sections shall not extend to, and operate upon free persons of colour who are minors, and bound out according to law.—lb. 469. 22. It shall not be lawful for the clerk of the inferior court of any county of this state to issue any certificate of registry of freedom to any coloured person, but upon affidavit first made by the guardian of such person of colour that he or she is a free person of colour duly manumitted agreeably to the laws of this state, and that he or she is about to remove into another county, or beyond the limits of this state, or about to depart in the capacity of a servant to some inhabitant of this state.—Daw. Comp. 411. 23. Previous to the granting of certificates of registry of freedom, it shall be the duty of the clerks of the superior and inferior courts of the several counties of this state to give ten days' notice in one of the public gazettes, or in some other public manner, of the name of the applicant or applicants, his age, &c., and of his, or her, or their guardian or guardians.—lb. 24. Such certificate of registry of freedom, when issued as afore- said, shall contain an accurate description of the person, age, or occu- pation, and residence of such person of colour, and that the clerk so issuing the same shall be entitled to have and receive from the guar- dian of such person of colour the sum of five dollars ; and should any free negro or person of colour transfer his or her certificate of registry of freedom obtained as aforesaid to any slave, or free negro, or other person of colour, such free negro or person of colour so offending shall be punished by such fine, imprisonment, and other cor- poral punishment as any court competent to try slaves and free per- sons of colour may in its discretion think proper to inflict.—lb. 25. If any captain of a vessel, mariner, or other person or per- sons shall transport, entice, carry away, or inveigle, or shall attempt to transport, entice, carry away, or inveigle, or shall aid, abet, or in anywise assist or be instrumental in the transportation, removal, enticing, inveigling, or going, running, or carrying away out of the Chap. 10.] OP COLOUR. 357 state of Georgia of any free person of colour, or any other person of colour, claiming or pretending to claim to be free, who shall not have such genuine certificate of registry of freedom duly issued to him or her, as aforesaid, such person or persons so offending shall be liable to be indicted as for a misdemeanor, and shall be punished by impris- onment in the common jail of the county at the discretion of the court, and such person or persons, and each and every one of them, shall also forfeit and pay the sum of five hundred dollars for each offence so committed, to be sued for or prosecuted by action of debt as on the case in the name of the state in any court having competent juris- diction thereof, at any time within five years after the commission of the offence, one half of which forfeiture, when recovered, shall be for the use of the state, and the other half to the use of the informer; and it shall [be] the duty of the attorney-general or solicitor-general, who shall be assigned or appointed to prosecute the pleas of the state in the county where the said action is cognizable, to sue and prosecute for said sum whenever he shall be informed of any such offence: Provided, nevertheless, that it shall and may be lawful for any such person to sue and prosecute for said sum, if such attorney or solicitor general shall not have previously sued or prosecuted therefor.—Daw. Comp. 411. 26. No coloured seamen arriving from any port whatever, (except from ports in South Carolina,) shall be suffered to leave the vessel in which they have arrived, in any port in this state, from the hours of six o'clock in the evening until five o'clock in the succeeding morn- ing; and it shall be the duty of every captain of a vessel having such seamen as aforesaid on board to report to the chief magistrate of the city or town where the vessel is a particular description of the sea- men and their names : and the said captain shall give bond with two securities in the sum of one hundred dollars for each seaman afore- said, payable to the chief magistrate of the city or town where the vessel is, conditioned for the maintenance of each seaman, for the re- taining of each on board his said vessel as is above required, and for the taking, removing, and carrying away each of said seamen when the vessel departs, whether, by the articles entered into, the said port of this state be a port of discharge or not.—lb; and see post, sec. 37. 27. If the said captain shall violate or omit to perform any of the provisions or conditions of said bond so entered into, it shall be the duty of the aforesaid chief magistrate to direct the solicitor-general of the circuit court, or recorder of the city in which the vessel is, or employ any solicitor or attorney to sue the same in any court having competent jurisdiction ; and the amount recovered on said bond shall be paid into the treasury of such town or city.—Daw. Comp. 411. 28. All ships or vessels coming into any port of this state by sea from any port or place in any other state, or any foreign country, having on board any free negro or free person of colour* employed as a steward, mariner, or in any other capacity, or as a passenger, * But see post, sec. 37. 358 FREE PERSONS [Part IV. shall be subject to quarantine for the space of forty days; nor shall it be lawful for any negro or person of colour residing in this state to go on board of such ship or vessel while riding quarantine, or to have communication with any such coloured person on board of said vessel for any purpose whatever while she is so riding quarantine.— Daw. Comp. 413. 29. If any free negro or person of colour so coming in the said ship or vessel shall come on shore, or have any communication with any person of colour residing in this state, while the said ship or vessel shall be riding quarantine as aforesaid, such negro or person of colour shall be immediately apprehended and committed to the common jail of the county where he shall be apprehended ; and the mayor or intendant of any city or town within this state, or any judge or justice of any superior or inferior court of this state, is hereby authorized and required to issue a warrant or warrants directed to any sheriff, Or marshal, or constable of any city or town, or sheriff or lawful constable within this state, for the apprehension of such free negro or person of colour, and to commit him or her to any common jail within this state as aforesaid, there to remain until the said ship or vessel shall be actually departiug from the waters of this state, or shall be hauled off from the wharf and ready to proceed to sea, or until he or she shall be otherwise discharged by law.—lb. 30. If any negro or person of colour shall communicate with any free negro or person of colour so coming into this state, while the said ship or vessel is riding quarantine as aforesaid, such negro or person of colour so offending shall be forthwith arrested by a war- rant, to be issued by the authorities and in the manner herein before provided, and directed as is herein before provided, and, on conviction thereof by any mayor or intendant, judge or justice, as aforesaid, be- fore whom the said warrant shall be made returnable, shall be sen- tenced to be whipped, not exceeding thirty-nine lashes.—lb. 31. When said vessel is ready to sail, the captain of the said vessel shall be bound to carry away the said free negro or person of colour, and to pay the expenses of his detention ; a.nd in case such captain shall refuse or neglect to pay the said expenses and to carry away the said free negro or person of colour, he shall forfeit and pay the sum of five hundred dollars, to be recovered by indictment in the superior court of the county where the said offence was committed, and shall, on conviction, suffer imprisonment in the common jail of the said county for any term not exceeding three months: Pro- vided, that no part of this act shall be construed to extend to any negro or person of colour employed on board of any steamboat, or on board of any national vessel of war.—lb. 32. Every free negro or person of colour coming into this state as aforesaid, and who shall not depart the state, in case of the captain refusing or neglecting to carry him away, within ten days after the vessel in which he came has departed, shall be liable, on conviction before any magistrate of the county, to be whipped not exceeding thirty-nine lashes.—lb. 33. All free negroes or persons of colour and all other persons shall Chap. 10.] OP COLOUR. 359 be exempted from the operation of this act, where such free negroes and persons of colour have arrived within the limits of this state by shipwreck or stress of weather, or other unavoidable accident; but such free negroes, and persons of colour, and other persons shall nevertheless be subject to the penalties of this act, if the requisites of the same be not complied with within one month after such ship- wreck, stress of weather, or other unavoidable accident.—Daw. Comp. 413. 34. This act shall not be construed to extend to any free American Indian, free Moors, Lascars, or other coloured subjects of the countries beyond the cape of Good Hope, who may arrive in this state in any mer- chant vessel; but such persons only shall be deemed and adjudged to be persons of colour within the meaning of this act as shall be de- scended from negroes or mulattoes, either on the father's or mother's side.—lb. 35. The city councils or corporate authorities of the cities or towns of this state, respectively, be, and they are hereby authorized and empowered, by ordinance or otherwise, to ordain and make such other provisions and regulations as may be necessary for carrying into full effect the provisions and true intent and objects of the fore- going seven sections: Provided, that the same be not contrary to the constitution and laws of this state.—lb. 36. All laws and parts of laws which authorize the selling of free persons of colour into slavery, be, and the same are hereby repealed. —Ib. 411. 37. Whenever any vessel shall arrive in any of the ports or waters of this state, it shall be the duty of the master or captain thereof, to repair, within twenty-four hours after the arrival aforesaid, to the nearest city or town, and make a report to the mayor, intendant, or other chief magistrate thereof, of any coloured persons on board of his said vessel, and give bond agreeably to the provisions of the fifth section of the act of 1826, (see ante, sec. 26,) under the penalty of one hundred dollars for every such person omitted to be so reported and bonded. And the said penalty shall be sued for and recovered in the same manner as is prescribed in the sixth section of said act, (ante, sec. 27.)—Ib. 412. 38. It shall not be lawful for any person to give credit to any free person of colour, but on a written order of the guardian.—Acts of 1833, p. 227. 39. If neither the guardian nor the ward have property to pay any penalty which may be awarded under this act, or any debt which may be contracted under the written order of the guardian, it may be lawful for ;the court to bind out such ward, and upon such terms as they may think proper, to satisfy such penalty or debt.—Ib. Query. How far is the property of the guardian liable for the debt of his ward 1—See ante, sec. 5. 40. No person of colour, whether free or slave, shall be allowed to preach to, exhort, or join in any religious exercise with any per- sons of colour, either free or slave, there being more than seven per- 360 FREE PERSONS OF COLOUR. [Part IV. sons of colour present.* They shall first obtain a written certifi- cate from three ordained ministers of the Gospel of their own order; in which certificate shall be set forth the good moral character of the applicant, his pious deportment, and his ability to teach the Gos- pel; having a due respect to the character of those persons to whom he is to be licensed to preach; said ministers to be members of the conference, presbytery, synod, or association to which the churches belong in which said coloured preachers may'be so licensed to preach, and also the written permission of the justices of the inferior court of the county, and in counties in which the county town is in- corporated, in addition thereto the permission of the mayor or chief officer, or commissioners of such incorporation, such license not to be for a longer term than six months, and to be revocable at any time by the persons granting it. Any free person of colour offend- ing against this provision, to be liable, on conviction, for the first of- fence to imprisonment at the discretion of the court, and to a penalty not exceeding five hundred dollars, to be levied on the property of the person of colour; if this is insufficient, he shall be sentenced to be whipped and imprisoned at the discretion of the court: Provided, such imprisonment shall not exceed six months, and no whipping shall exceed thirty-nine lashes.—Acts of 1833, p. 228. 41. Each offence under this act may be prosecuted by indictment in the superior court of the county in which the same shall have been committed, and the penalties shall be recoverable by quitam action in the superior or inferior court; one half to the use of the informer, and the other to the use of the county academy.—lb. 42. From and after the passage of this act, it shall not be lawful for any free person of colour in this state, to own, use, or carry fire- arms of any description whatever.—lb. 43. Upon information given upon oath to any justice of the peace of any county in this state, of any free person of colour owning, using, or carrying firearms as aforesaid, it shall be his duty to issue his warrant for the arrest of said free person of colour, to answer said charge before himself, or any other justice of the peace in the county where said offence may be committed ; and upon sufficient proof thereof, it shall be the duty of said justice to order and adjudge that the free person of colour so detected in owning, using, or carry- ing firearms, shall receive upon his bare back thirty-nine lashes; and that the firearms so found in the possession of said free person of colour shall be exposed to public sale, after giving fifteen day's notice of the time and place thereof at three of the most public places in the district; and the money arising from the sale of said arms shall be appropriated by said justice of the peace to the payment of the cost which may accrue in said prosecution; and the overplus, if any there be, to be delivered by said justice to the informer against the offender.—lb. * By the act of 1834, pamphlet, p. 227, Henry Adams is exempted from the penal- ties of this act. Chap. 11.] GENERAL ELECTIONS. 361 CHAPTER XI. GENERAL ELECTIONS.* 1. How ascertained. All elections shall be by ballot.—Prin. Dig. 130. 2. When to be held. The members of the General Assembly shall be elected annually, oil the first Monday in October.—lb. 129. The governor shall be elected biennially on th§ first Monday in October.—Con. art, 2, sec. 2, as amended in 1824. The first election for governor bv the people took place under this amendment in 1825. The members of congress shall be elected biennially, on the first Monday in October, Prin. Dig. 130 ; but congress may at any time alter the time, place, and manner of holding these elections.—Con. U.S. art. 1, sec. 4. The members to represent this state in the twenty-fourth congress were elected in 1834. The electors of president and vice-president of the United States shall be elected every fourth year, on the first Monday in November. —Daw. Comp. 159. The first election by the people took place in 1828. 3. Hours of opening and closing the Polls. At the courthouses the polls shall be opened at the hour of seven, A. M., and closed at the hour of six, P. M.—Prin. Dig. 130. At the precincts established by law, the polls shall be opened be- tween the hours of seven and ten, A. M., and closed at the hour of six, P. M.—Acts of 1830, p. 108. 4. What Officers may attend. The elections at the courthouses shall be attended by a sheriff, or in his absence, a constable, for the purpose of preservingiorder, &c. —Prin. Dig. 131. At the precincts, the managers may designate any person to per- form this duty.—Acts of 1830, p. 107. 5. Who may superintend. At the courthouses, the elections shall be superintended by three or more magistrates, not being themselves candidates.—Prin. Dig. 130. At the precincts, one justice of the inferior court, or one justice of the peace, and two freeholders, or two justices and one freeholder may preside; the freeholders first taking the following oath, viz.: " I, * For tlie time and manner of electing county officers, see their respective titles ; but no county officer shall be chosen at the time of electing a senator or representative. —Con. art. 3, sec. 11. L L 362 GENERAL ELECTIONS. [Part IV A. B., do solemnly swear (or affirm) that I am a freeholder, r» d dent in the county of that I will faithfully superintend tin - day's election, and make a just and true return thereof, according to law, and to the best of my ability : So help me God Acts of ls3(l, p. 106: which oath should be taken before one of the magistrates and be attached to, and transmitted with the return. By the act of 1830, p. 108, the two magistrates in the respeetitr ihstrn t- are specially charged with the superintendence of all elections held m their districts. G. Lloio to be conducted, i It shall be the duty of the managers to appoint three clerks, atid cause to be kept three separate rolls, or lists of the names of voters.— Prin. Dig. 130. When any doubt shall arise as to the qualification of a voter, it shall be the duty of the superintendents to administer the following oath, viz.: " I, , do solemnly swear (or affirm, as the case may be) that I have attained to the age of twenty-one years, have p,-i 1 all legal taxes* which have been required of me, and which I have had an opportunity of paying, < agreeably to law; have resided si\ months within the county, and that I am a citizen of the United States, and an inhabitant of this state."—lb. 121). At the precincts, if a doubt shall be suggested touching the legality of any vote offered, the superintendents shall, previous to recei\ing such vote, in addition to the foregoing oath, administer the fidloninu " I, A. B., do solemnly swear (or affirm) that I have not this day voted at any election held at any place in this state for governor, members of congress, electors of president and vice-presidert, mem- bers of the legislature, or county officers: So help me God." And the superintendents shall keep a list of the names of all voters who take this oath, and return the same to the clerk of the inferior court of their respective counties.—Acts of 1830, 103. The elections held at the precincts, shall be conducted in all re- spects (not otherwise specially provided for) as those at the court- houses, Acts of 1830, 107; and all general elections, whether lor governor, members of congress, electors of president and vice-pres- ident U. S., or county officers, are to be conducted in the same manner. 7. Qualifications and Liabilities of Voters. The electors of members of the General Assembly shall be citizens and inhabitants of this state, and shall have attained the age of twenty- one years, and have paid all taxes which may have been required of them, and which they have had an opportunity of paying, agree- ably to law, for the year preceding the election, and shall have resided six months within the county.—Con. art. 4, sec. 1. Citizens of this state who may be entitled to vote for members of the General Assembly in the county of their residence, mnv v >» \ at * But see the constitutional proviso contained in art. t, sol. i. Chap. 11.] general elections. 363 any place of holding elections in this state, for governor, members of congress, electors of president and vice-president of the United States, and upon all questions where the voice of the people of the state is to be expressed : Provided, they may'not have voted else- where.—Acts of 1833, 95. No civil officer shall execute any writ or civil process upon the body of any voter, either in his journey to, return from, or stay at the place of holding elections, under the penalty of five hundred dol- lars: Provided, such voter shall not be more than four days in going to or staying at, and returning from such places of holding elections. The process so illegally served upon a voter shall be null and void.— Prin. Dig. 129. If any person shall on the day of an election violate the freedom of such election, by any arrest, menace, threat, or attempt to over- awe, affright, or force any person qualified to vote, or offer any bribe to induce him to vote contrary to his inclination ; or after said elec- tion is over, shall menace, or despitefully use, abuse, or insult such voter, because he may not have voted as he or they may have wished him ; every such person shall, upon proof thereof, before any justice of the peace, be bound over to the superior court, and shall, upon conviction before said court, pay the sum of one hundred dollars.— lb. 129. Any person who may be convicted of voting at any election, and who was not authorized to do so by the constitution of this state, (art. 4, sec. 1,) shall be fined not less than thirty dollars, or be im- prisoned in the common jail of the county, at the discretion of the court.—Acts of 1830, 107; and see other and heavier penalties for illegal voting, part 1, c. 10, s. 29,30. 8. Duties of Managers in making and transmitting Returns. The superintendents at the several precincts in each county, on the day of the elections by them held, and at the places of holding such elections, shall count out the votes by them taken in, and make a fair statement of the poll, certified under their hands in the character in which they presided, which shall be sealed up, together with a list of the names of the voters. On the day following, one or more of the superintendents at each of the respective precincts in the several counties shall assemble at the courthouse, (bringing up the returns from their respective precincts,) and, together with the magistrates who presided at the courthouse, or a majority of them, count, compare, and add together the several returns, and certify to the governor the result of the election for the county. The returns brought to the courthouses from the precincts, as well as those made at that place on the day of the election, should be transmitted to the governor with the consolidated return. The fol- lowing may serve as a form for the certificate to accompany the con- validated return, viz.:— 364 GENERAL ELECTIONS. [rart IV. Georgia, I We. the presiding magistrates and superin- County. ) tendents of an election held at the courthouse, and at the several precincts in said county, on the fourth day of October instant, for a senator and (one, two, or four, as the case may he) representative, to represent said county in the next General As- sembly, do certify, that we have compared, counted, and added to- gether the votes given at said election, as ascertained from the returns produced by the superintendents at the respective places of holding elections in said county ; from which it appears, that (h< rc state the names of the candidates, and the number of votes xiv< n to each) as will appear by reference to said returns herewith trans- mitted. This certificate should be signed by at least one of the superin- tendents from each place of holding elections in the county, in the character in which they presided : if a justice or a freeholder, let it be so stated. In counties where there are no precincts, the presiding magistrates will certify the result of the election, and transmit the same to the governor, taking care to enclose the tally sheet, and a list of the names of the voters. The following is a suitable form for such certificate, which will also serve as a form for the returns made at the precincts, with slight variations to suit the case, to wit:— Georgia, > We, the presiding superintendents of an elec- County. J tion held at the courthouse in said county, on the fourth day of October instant, for one {two, three, or four) repre- sentative to represent said county in the next General Assembly, do certify, that, upon counting out the votes, it appears that {here ins< rt the names of the candidates, and the number of votes given to each) which will be seen by reference to the enclosed statement of the polls.—Acts of 1830, 105. The returns of the election for governor must be certified in the same manner, and accompanied by a list of the names of voters and statement of the poll, or tally sheet, as directed in the election for members of the General Assembly, varying the certificate to suit the case. The returns of election for governor shall be sealed up by the pre- siding justices, separately from other returns, and directed to the president of the Senate, ;and the speaker of the House of Repre- sentatives, and transmitted to his excellency the governor.—Con. art. 2, sec. 2. As mistakes are sometimes made in the direction of these returns, it may not be amiss to suggest a form :— lion. President of the Senate, and Speaker of the House of Representatives. Care (f His Excellency the Governor, Milledgeville, Georgia. The return should be mailed immediately; but if no mail passes t<> the seat of government within seven days after the election is deter- Chap. 11.] GENERAL ELECTIONS. 365 mined, the superintendents shall employ a special messenger to carry the same; in which case the postmaster's certificate, respecting the untimely departure of the mail, should be procured and sent by the messenger, who shall be paid by the governor for such service.— Daw. Comp. 178. The returns of election for members of congress, and electors of president and vice-president of the United States, should be certified in the same manner as directed in the returns for members of the General Assembly, should be1 directed to the governor, and trans- mitted by mail or by a messenger, as in case of the election for gov- ernor.—Ib. 178, 159. 9. Responsibility of Superintendents. If the superintendents shall make a false and fraudulent return, they shali forfeit each $100, to be recovered in any court having jurisdiction ; if such superintendent be a magistrate, he shall, in addi- tion to such forfeiture, be for ever disqualified from holding or enjoy- ing his office.—Prin. Dig. 129. And any superintendent, whether a justice or a freeholder, who shall violate the trust confided to him, or fail to perform the duties enjoined on him as such by the act of 1830, p. 105, shall, upon con- viction, suffer the penalties prescribed for making false and fraudu- lent returns. Any superintendent who shall, while superintending at an election, influence or endeavour to influence or persuade any voter not to vote as he first designed or intended, shall forfeit $100; and if a magistrate, shall for ever be disqualified for holding or enjoying his commission of the peace.—Prin. Dig. 129. 10. Candidates. No person who hath been convicted of felony before any court of this state, or of the United States, shall be eligible to any office or appointment of honour, profit, or trust, within this state.—Con. art. 1, sec. 20. No person who heretofore hath been, or hereafter may be a col- lector or holder of public moneys, shall be eligible to any office in this state, until such person shall have accounted for and paid into the treasury all sums for which he may be accountable or liable.— Con. art. 4, sec. 6. If any candidate shall, at an election, influence or endeavour to influence any voter not to vote as he first designed or intended, or shall use any undue means to obtain a vote, such candidate shall be thereby incapacitated from serving in the post or place for which he may be elected.—Prin. Dig. 129 ; and see Con. art. 1, sec. 18. A senator must be twenty-five years of age, must have been nine years a citizen of the United States, three years an inhabitant of this state, and one year an inhabitant of the county, preceding his election. For his property qualifications, see Con. art. 1, sec. 4. A representative must be twenty-one years of age, must have been seven years a citizen of the United States, three years an inhabitant 3G0 GENERAL ELECTIONS. [Part IV. of this state, and one year a resident of the county, preceding his election. Property qualifications similar, but half the amount, requi- site for a senator.—Con. art. 1, sec. 8. No person holding any office of profit under this state or the United States, or either of them, (except justices of the inferior court, justices of the peace, or militia officers,) shall be eligible to a seat in either branch of the General Assembly.—See Con.'art. 1, sec. 11. No person shall be eligible to the office of governor, who shall not have been a citizen of the United States twelve years, and an inhabitant of this state six years, and who has not attained the age of thirty years, and who does not possess five hundred acres of land in his own right in this state, and other property to the amount of four thousand dollars; and whose estate, on a reasonable estimation, be competent to the discharge of his debts, over and above that sum— Con. art. 2, sec. 3. No person shall be a representative (in congress) who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States ; and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.—Con. IT. S. art. 1, sec. 2. And no person holding any office under the United States shall be a member of either House during his continuance in office.—Con. U. S. art. 1, sec. 6. No person shall be elected a representative in congress, who has not been an inhabitant of this state three years next preceding his election, and paid his tax regularly during that time, nor shall lit* hold any office of profit under this state, during the time for which he may be elected a representative.—Prin. Dig. 130. No senator or representative in congress, or person holding an office of trust or profit under the United States, shall be appointed an elector of president and vice-president of the United States.— Con. U. S. art. 2, sect, 1. 11. Contested Elections. "When any person intends to contest the seat of any person return- ed elected as a member of the House of Representatives or of the Senate, such person so intending shall, before he proceed to take any testimony, give the adverse party five days' notice in writing of his intentions, with the name of the witness or witnesses, and the place where he intends to take the testimony, so that he may appear at the time and place, either by himself or attorney, to put cross questions if he thinks proper; the person returned as elected shall, where he intends to take testimony, give the other party notice in like manner. Where either party intends to take testimony, going to prove the legality or illegality of a vote given to either, or the constitutionality of his qualifications, the same shall be taken in manner aforesaid, and within twenty days after the election, and not after that time ; and the testimony taken in manner aforesaid, shall be fccted upon in such manner as either branch of the legislature may deem he*f c-d- culated to ensure justice to both parties. This act. not to afleel ihc general election laws.—Acts of 1830, 132. Chap. 12. j INSOLVENT DEBTORS. 36T CHAPTER XII. INSOLVENT DEBTORS. (See Con. art. 4, sec. 7.) I. It shall and may be lawful for the judges of the superior or jus- tices of the inferior courts, and they are hereby required, on the pe- tition of any person or persons confined for debt, whether charged in execution or otherwise, and whether the process by virtue of which such person or persons is or are confined be issued from the supe- rior court, or other court of inferior jurisdiction, setting forth that he, she, or they are so confined, and are unable to satisfy the debt or demand for which he, she, or they are so confined, or to give bail for his, her, or their appearance to answer to the action under which he, she, or they is or are confined, but are willing to deliver up the whole of his, her, or their estate and effects for the benefit of his, her, or their creditors, by rule or order of court, to cause such debtor to be brought up, and being brought up, the said judge or justices shall proceed with such debtor in the manner directed by an act en- titled "An act to carry into effect the seventh section of the fourth article of the constitution Provided, that the notice required by the said act to be given to the creditors of such debtor, if the same be by notice served upon the said creditors* or their attorneys, shall be given at least thirty days previously to the time appointed for bring- ing up such debtor: and Provided also, that if, upon bringing fup such debtor, any one or more of the creditors shall suggest to the said judge or justice that the said debtor is not fairly insolvent, or that he has been guilty of any fraudulent practices, that then a-nd in that case it shall be the'duty of the said judge or justices, forthwith, to cause an issue to be made up between the said creditor or creditors and the said debtor, fraud or not fraud. 2. Upon such issue being made up, the judge or justices shall cause to be drawn and summoned, in the manner pointed out by law, a jury of twelve persons to attend at the courthouse, at a particular day to be specified for that purpose, to try the said issue : and if the jury shall find that there has been fraud on the part of such debtor, then he or she shall be remanded to prison; and if they shall find that there has been no fraud, then the said debtor shall be forthwith discharged in the manner pointed out by the said act, entitled " An act to carry into effect the 7th section of the 4th article of the constitution." 3. The sheriff shall be allowed for summoning each jury the sum of five dollars, to be paid by the creditors who shall require such issue to be made up.—Prin. Dig. 198, 199. 4. Any debtor or debtors charged in execution, or imprisoned for any sum or sums of money, shall and may petition one of the judges See the form of such notice, post, sec el. 368 INSOLVENT [Part IV. of the superior courts, if the execution or capias ad satisfaciendum issued therefrom, or the justices of the inferior courts, if it issued from thence, setting forth, that he, she, or they are so confined, and are unable to satisfy the execution or executions by virtue of which they are detained, and are also willing to deliver up all their estate, real and personal, for the use of their creditors ; and upon such puti- tion the said judge or justices may, and are hereby required, by order or rule of court, to cause the debtor to be brought up, and the sev- eral creditors at whose suit he, she, or they are charged or impris- oned as aforesaid, and also all those to whom the said debtor or debtors shall or may be then indebted, to be summoned to appear personally, or by their attorney, at a day to be appointed for that pur- pose, upon which day the debtor shall produce his books of account, if any he kept, which summons or notice shall be served on each of the said creditors, or left at their notorious places of abode, if they reside within this state ; or if they reside without the state, then upon their attorney ; and if no attorney, then to be published in one of the gazettes of Augusta or Savannah, at least two months before the day appointed for such appearance, and upon such, if any of the creditors summoned refuse or neglect to appear, upon affidavit of the due ser- vice of such rule or order, the court shall, in a summary way, examine the matter of such petition, and the suggestions of fraud, if any, and if upon suchtexamination it shall appear to the court that the debtor is really and bona fide insolvent, then such person shall deliver to the court a schedule of all his real and personal estate, credits, and ef- fects, and shall take and subscribe the following oath, viz.— 5. " I, A. B., do solemnly swear, (or affirm, as the case may be,) in the presence of Almighty God, that I am not possessed of any real or personal estate, debts, credits, or effects, securities or contracts whatsoever, my wearing apparel, bedding for myself and family, and the working tools or implements of my trade or calling, together w ith the necessary equipments for a militia soldier excepted, other than are contained in the schedule now delivered, and that I have not, directly or indirectly, since my imprisonment or before, sold, leased, assigned, or otherwise disposed of, or made over in trust for myself or otherwise, any part of my lands, estates, goods, stock, money, debts, securities, or contracts, whereby any money may hereafter become payable, or any real or personal estate, whereby to have or expect any benefit or profit to myself, my wife, or my heirs: So help me God."—Prin. Big. 195,196. 6. And upon the said debtor having taken and subscribed the aforesaid oath, the court shall order the sheriff or jailer to discharge the said debtor from confinement on account of the matter contained in his petition, and such order shall be a sufficient warrant to the sheriff, jailer, or keeper of such debtor to discharge the said debtor, if detained for the cause mentioned in his or her petition, and no other; and he is hereby required to discharge and set him or her at liberty forthwith, the debtor paying his or her fees; nor shall the dicriM', jailer, or keeper of the said debtor be liable to any action of cyap< Chap. 12.] debtors. 369 or other suit or information upon that account: Provided, that no person shall be permitted or entitled to take any benefit or advan- tage of this act, who has within twelve calendar months lost at any one time, by any species of gaming, the sum of one hundred dollars, or at different times the amount of 300 dollars.*—Prin. Dig. 196. 7. Each and every debtor so discharged as aforesaid, shall never thereafter be arrested or imprisoned by virtue of any execution founded upon any judgment obtained, or hereafter to be obtained, upon any debt or contract before that time entered into by the said debtor or debtors, to any creditor so notified as aforesaid ; neither shall any debtor so discharged as aforesaid, be arrested or held to bail on mesne process for or on account of any debt or contract en- tered into prior to their discharge as aforesaid, and any creditor so notified as aforesaid who shall cause the person of any debtor so discharged as aforesaid to be arrested, knowing of such discharge, shall forfeit and pay the sum of five hundred dollars, to be recovered by bill, plaint, or information, in any court having cognizance thereof, one half to the use of the other creditors of the said debtor, and the other moiety to the sole use of the said debtor, of which his creditors shall have no part or benefit: Provided, that nothing herein contained shall prevent any creditor to have execution at any future time against the property, both real and personal, of such debtor or debt- ors.—Ib. 196, 197. 8. If any person shall discover and give information of any pro- perty embezzled or concealed by any debtor as aforesaid, previous to his discharge, or not included in the schedule so delivered in as afore- said, such person shall be entitled to one half of the value of such property, upon its being established that the same was the property of the said debtor, and embezzled, secreted, or not included in the schedule as aforesaid.—Ib. 197. 9. The property contained in the said schedule, presented to the court by such debtor or debtors, shall be delivered into the hands of the sheriff of the county in which such debtor or debtors may have been confined, who shall make sale thereof agreeably to the law reg- ulating sheriff's sales within this state ; and if any part of the prop- erty so given up shall consist of judgments, bonds, notes, contracts, securities, mortgages, liquidated demands, or open accounts, the court shall order the same to be assigned over by said debtor or debtors, to some fit and proper person or persons whom a majority of the creditors shall nominate, to the use of, and in trust for, such judgment creditors; which, when collected by the said trustee or trustees, to- gether with the money which may be in the hands of the sheriff, aris- ing from the sale of any property of such debtor or debtors, shall be subject to the further order of, and after the payment of the costs and charges, shall be distributed by the said court agreeably to the laws within this state for the payment of judgments and executions. -Ib. 197. 10. The said trustee or trustees shall proceed without delay to col- * Query—Is not this provision repealed by the act of 1823? See post, sec. 18. a a a 370 INSOLVENT [Part IV. lect all the debts, &c-., so transferred as aforesaid, either by suit or otherwise, which when collected shall be paid by the said trustee or trustees into the clerk's office of said court, and the said trustee or trustees shall have and receive five per centum on all moneys so col- lected by him or them, as a compensation for his or their trouble ami expenses in collecting the same. And any trustee or trustees who shall fail to pay into court any money by him or them collected as aforesaid, shall be subject to the same punishment for contempt, and to the same mode for the recovery of the said money, us sheriffs are liable to by the laws of this state.—Prin. Dig. 197. 11. When any person or persons who now are or hereafter shall be committed for any debt or damage whatsoever, and shall not be able to satisfy and pay his ordinary prison fees, such fees shall be paid by the person at whose instance such insolvent person may be confined.—lb. 12. In all cases where debtors shall be committed under any exe- eutiori or mesne process, at the suit of any person residing out of the county or state, the agent or attorney of the plaintiff shall give like security for the maintenance and jail fees of the defendant, the main- tenance to be paid weekly; and in failure thereof, the defendant shall be discharged on application to the justices of the inferior court; and in like manner when seamen are committed at the instance of their captains, who frequently leave them in jail, security shall be given to the jailer, before he shall receive such seaman, for their maintenance and jail fees.—lb. 198. 13. When any debtor or debtors shall betaken upon any capias ad satisfaciendum, and shall be desirous of taking the benefit of the oath prescribed for the relief of insolvent debtors, or of rendering a full and fair schedule of his property, it shall and may be lawful for such debtor or debtors to tender to the sheriff of the county, his lawful deputy, or any constable, marshal, or other officer, by whom he, she, or they may have been taken, a bond* or bonds payable to the party at whose in- stance the arrest was made, with good and sufficient securities in twice the amount of the debt, conditioned for his appearance at the next term of the superior or inferior court, or any court of oyer and term- iner and corporation court, in which said capias ad satisfaciendum was obtained, (and if the same issued from a justice's court, then to the inferior court next to be held in and for the said county.) then and there to stand to and abide by such proceedings as may be had by the court in relation to his, her, or their taking the benefit of this act; and in case of failure to appear, judgment shall be entered up instanter upon said bond against the principal and his securities, to be discharged upon the payment of the debt and cost; and when an execution issues thereon, the defendant in the capias ad satisfaciendum shall not be entitled to the benefit of this act: Provided, that if either of the parties to the said bond shall be desirous to have an issue made up and submitted to a jury, a jury shall be immediately empannelled to try such issue, and the plea of non est factum shall only be received * For the form of such bond, see post, sec. 22. Chap. 12.] DEBTORS. 371 upon the party making oath of its verity. And Provided further, that if it shall be made appear satisfactorily to said court, that said debtor or debtors are prevented from attending court by sickness or other sufficient cause, to be judged of by the court, the case shall be con- tinued over to the next court, at which time the same proceedings shall be had as if he had appeared at the first term. And Provided further, that if such debtor or debtors shall die in the mean time, it shall be an absolute discharge of such bond or bonds: Provided, never- theless, that when any debtor or debtors shall be taken, as aforesaid, within twenty days before the sitting of said court, said bond shall be conditioned for his, her, or their appearance at the succeeding term of the court aforesaid.—Daw. Comp. 316. 14. Upon such debtor or debtors tendering such bond or bonds, it shall be the duty of such sheriff, deputy, or constable, as the case may be, to release him, her, or them from confinement or custody, any law, usage, or custom to the contrary notwithstanding.—lb. 15. To enable the honest debtor the more easily to obtain the se- curity required in the first section of this act, it shall be lawful for the said security, at the court to which the principal is bound to appear, to surrender in open court said principal in discharge of the security ; and for the purpose of making the surrender, the security is hereby authorized to exercise all the power which by law special bail have over their principal.—lb. 16. Upon the appearance of such debtor or debtors at the court to which he is bound to appear, it shall be lawful for him, her, or them, either in person or by attorney, to move the court to be admitted to take the oath prescribed for the relief of insolvent debtors, or to swear to the schedule previously filed with the clerk of said court, agreeably to the provisions of this act herein after contained ; and it shall be the duty of said court, upon such debtor or debtors making it appear to them that at least ten days' notice has been given in writing to his, her, or their creditors of the intention to avail him, her, or themselves of the benefit of this act, to administer the oath prescribed for the benefit of insolvent debtors, or to swear him, her, or them to the schedule as aforesaid, as the case may be, and to di- rect the clerk to make an entry of the same upon his minutes, which shall exempt the body or bodies of such debtor or debtors from im- prisonment for debt, in all cases where notice may have been given to the creditors, which notices shall be filed with the clerk of said court: Provided, nevertheless, that if any creditor or creditors shall suggest any fraud, or concealment of any property, money, or effects, it shall be the duty of the court to direct an issue to be made up and tried by a jury, at the first term before such debtor or debtors are sworn : Provided further, that if either of the parties shall be unprepared for the trial of such issue, the court may continue the same under the same rules and regulations by which suits at law are now continued ; and if the said jury shall find that there is any fraud or concealment, or if said debtor or debtors shall fail or refuse to answer upon oath, or if said debtor or debtors shall fail to make it appear to the court 372 INSOLVENT DEBTORS. [Part IV. that he, she, or they have given the necessary notice to the creditor or creditors, at whose instance he, she, or they may have been arrested, then and in that case the said debtor or debtors shall be deemed in the custody of the sheriff, and the court shall adjudge that he, she, or they be imprisoned until a full and fair disclosure of all the property, money, or effects be made by said debtor or debtors, and until he, she, or they have given the necessary notice as aforesaid, to be judged of by said court.—Daw. Comp. 316. 17. When any debtor or debtors, taken upon any capias ad satisfa- ciendum as aforesaid, shall be desirous to render a full and fair schedule of his, her, or their property tyid effects, he, she, or they shall file the same with the clerk of the court at which he is bound to ap- pear at least ten days before the sitting of the court, at the sitting of which he proposes to avail himself of the benefit of this act; and that upon his being admitted to swear to the said schedule, the same proceedings shall be had thereon as may be now had on schedules filed under the law now in force. 18. No person shall be imprisoned for debt upon any capias ad satisfaciendum, who will comply with the requisites of this act, except in cases of fraud or concealment, herein before mentioned.—lb. 19 The following articles shall be exempt from levy and sale on account of any debt contracted after that day, to wit: two beds and bedding, common bedsteads, a spinning-wheel and two pair of cards, a loom, and cow and calf, common tools of his trade, and ordinary cooking utensils, and ten dollars' worth of provision.—lb. 313. Also the family Bible.—See acts of 1834, p. 222. 20. In all cases where any debtor shall have the benefit of the insolvent act extended to him, it shall be the duty of the officer levy- ing the execution to make out a schedule of the articles so exempted from seizure and sale, and return the same to the clerk of the inferior court of said county, whose duty it shall be to record the same, in a book to be kept by him for that purpose, then the above property shall be alienated and vested in the inferior court, to be appropriated to the benefit and use of the debtor's family, so long as the defendant shall remain insolvent.—Daw. Comp. 313. 21. Form of Notice to Creditors. Georgia, ) Sir,—Please to take notice that I intend, at Baldwin County, j the next term of the superior court, to be held on the second Monday in January next, to avail myself of the benefit of the act entitled " An act for the relief of honest debtors," passed in eighteen hundred and twenty-three: this tenth day of August, eighteen hundred and thirty-five. 22. Form of Bond where a Person is taken with a Capias ad Satisfaciendum. Georgia, ) Know all men by these presents, that we, Baldwin County. ) Charles Booty and Asa Goodall, are held and firmly bound to Anderson Gripe, all of said state and county, in the Chap. 13.] INTEREST USURY. 373 just and full sum of one hundred and fifty dollars,* to the true pay- ment of which we bind ourselves, our heirs, executors, administra- tors, and assigns, jointly and severally, firmly by these presents. Sealed with our seals, and dated this tenth day of August, eighteen hundred and thirty-five. The condition of the above bond or obligation is such, that whereas the said Charles Booty hath been arrested by a capias ad satisfaciendum, obtained from the superior court of said county, at the instance of the said Anderson Gripe. Now, should the said Charles Booty appear at the next term of said superior court, then and there stand to and abide by such proceedings as may be had by the court in relation to his taking the benefit of the act entitled "An act for the relief of honest debtors," passed in the year eighteen hundred and twenty-three, then the above bond to be void, else to remain in full force. Test., Charles Booty. (L. S.) I. T. Gushing, J. P. Asa Goodall. (L. S.) CHAPTER XIII. INTEREST—USURY. 1. The lawful interest upon debts in this state is eight per cent, per annum. And all bonds, bills, notes, bills of exchange, liquidated and settled accounts, signed by the debtor, or other specific demands, bear interest from the time they become due, unless it be otherwise expressed in the said writings, or understood by the parties. And if they express to be payable on demand, interest accrues only from an actual demand made by the creditor, fcis agent, or attorney, or from the commencement of a suit; but if no time be expressed for the payment, and the words " on demand" be not used, the money is due immediately, and interest runs from the date, without de- mand. 2. In future, the mode of calculating interest in this state shall be at and after the rate of eight per cent, per annum ; and whenever any payment shall be made on any note, bond, or other instrument, demand, execution, or judgment, where any interest has accrued on any such note, bond, or other instrument, execution, or judgment, such payment shall, in the first place, be applied to the discharge of interest due, and no part of the principal shall be considered as dis- charged until the interest shall have been first extinguished: Pro- vided, nevertheless, that in all cases where the payment made shall not be sufficient to discharge all the interest due at the time of pay- ment, no interest shall at any future payment be calculated on the balance of interest which was left unpaid. * Double the amount of the ca. ga. 374 LIMITATION [Part IV. 3. In all cases where judgments may hereafter be obtained, all such judgments shall be entered up for the principal sum due with the interest; but no part of such judgment shall bear interest except the principal which may be due on the original debt; any law, usage, custom, or practice to the contrary notwithstanding. —Prin. Dig. 200,201. 4. On every bond, note, or other instrument in writing, or verbal contract for the payment of negroes, produce, stock, goods, or other specific articles, of any nature or kind whatsoever, the price of such specific article at the time it became due upon such bond, note, or other instrument in writing, or verbal contract as aforesaid, and having respect to the place, made payable according to contract, if any, shall be the sole and established rule of valuation ; and all and every such bond, note, or other instrument in writing, or verbal con- tract, for specific articles as aforesaid, shall bear interest at eight per cent, from the time they become due, in like manner as if given for the payment of money simply.—lb. 470. 5. All contracts, bonds, notes, and assurances whatsoever made after the twenty-third of December, 1822, for the payment of any principal, or money, goods, wares, or merchandise, or other com- modifies whatsoever, to be lent, covenanted, to be performed upon, or for any usury, whereupon or whereby there shall be reserved, or taken above the rate of eight per centum per annum, shall not be void, but the principal due thereon shall be recoverable at law, and no more.—Daw. Com p. 488. 6. That no forfeiture shall be incurred by any person who here- after may reserve or take more than eight per cent, per annum upon any contract as contemplated in the first section of this act; any law, usage, or custom to the contrary notwithstanding.—lb. CHAPTER XIV. LIMITATION OF ACTIONS. 1. By the act of 1767, seven years actual and peaceable possession of land, under a deed or other colourable title, is a perpetual bar against all persons: if, however, at the time the title accrues, the party entitled to the land is within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or beyond the seas, such person may, notwithstanding the seven years be expired, com- mence his or her suit, or make his or her entry within three years next after full age, discoverture, coming of sound mind, or returning from beyond the seas. By the same act, personal actions were lim- ited as follows: actions upon the case, (other than for slander,) actions for accounts, trespass upon the case, debt, detinue, replevin for goods and cattle, and trespass quare clausam fregit, within four years after the cause of action. Actions of trespass vi et armis, assault, battery, wounding, imprisonment, or any of them, within two Chap. 14.] OF ACTIONS. 375 years, and the action upon the case for words, within six months.— 'prin. Dig. 316, 317, 318. 2. By the act of 7th of December, 1805, the act of 1767 was re- pealed, but the limitation of real actions was not altered; the actions of trespass, assault, battery, wounding, and imprisonment were to be brought within one year ; all actions upon the case, (other than for words,) the actions of detinue, trover, debt, (other than upon judg- ments,) within four years; actions upon judgments obtained in courts, (other than the courts of this state,) within five years after the date of the judgment; and the action for words, in one year. This act contained similar exceptions to those in the act of 1767, with the exception of the disability of being beyond the seas, and that the action should be brought within one and two years after the other disabilities should be removed; and it also placed actions of debt on specialities, and simple contracts upon the same footing. It further exempted persons removing their property, or absconding from the benefit of the act.—lb. 318. 3. The act of 26th of June, 1806, allowed a plaintiff, who was nonsuited or discontinued his action, to renew his action for one time only, within six months after the term of limitation had expired, and also revived the act of 1767.—lb. 4. The act of 8th of December, 1806, revived the act of 1767, and declared the same to be in force from the first of February, 1793, and that no deduction in any calculation of time should be made in the construction of said act, after the first day of February, 1793; and gave to persons labouring under the disabilities mentioned in the act of 1767, (except those who were beyond the seas,) and such as should remove out of the jurisdictional limits of the state, the time limited in said last mentioned act to commence their action, but there was an express provision, that all notes and instruments of writing not under seal, bearing date after the passage of this act, shall be of the same dignity with specialities, and subject to the same limitations of specialities ; all other acts militating against the intent and meaning of this act were repealed.—lb. 319. 5. The act of 13th December, 1809, limited all actions com- menced on bonds or instruments under seal, to twenty years after they became due ; all actions upon notes and other acknowledgments under the hand of the party, to six years; and all actions upon open accounts, to four years from the time such accounts accrued.—lb. 319, 320. 6. The act of 2d December, 1813, declares that no person or persons claiming any lands, tenements, or hereditaments by virtue of any grant or grants prior to the revolutionary war, and who never resided in said province, or who fled from this state during that struggle, and who did not return to this state within twenty-one years after the treaty of peace with Great Britain, which was in the year 1783, to make their entry thereon, settle or cultivate the same, or any part thereof, shall, either he, she, or they, or any person or persons claiming under him, her, or them, hereafter recover any such parts thereof as may have been since granted, from any person or 376 MARKS AND BRANDS. [Part IV. persons who has or have since the revolution obtained a grant or grants, settled or cultivated the same, or any part thereof, for the term of seven years in peaceable possession; nor from any person or persons claiming under such young title as aforesaid, where there has been an adverse possession for the aforesaid term of seven years. —Prin. Dig. 320. 7. No saving or exception in any statute of limitations in this state, providing for the claims of persons resident beyond the seas, shall operate or be so construed as to benefit any persons whose grants have issued prior to the revolutionary war, and who are now sub- jects of the crown of Great Britain or other foreign nation.—lb. 320. 8. And by the act of the 18th of December, 1817, it is provided, that from and after the passage of this act, that no court of justice in this state before whom the plea of the statute of limitations may be relied on or plead by any defendant or defendants, shall be permitted to construe said act against idiots, lunatics, or infants as heretofore construed ; but said statute of limitations, when it has commenced running, shall not so operate as to defeat the interests acquired by idiots, lunatics, or infants after its commencement, but the operation of said statute shall cease until the disability or disabilities of such persons are removed, or from the time of the arrival of such infants to the age of twenty-one years; any law, custom, or usage to the con- trary notwithstanding. 9. No proviso or part of the above recited act, or any other part or parts of any statute of limitations, which are or heretofore have been of force in this state, shall be so construed as to grant any privilege, right, or exemption to any person or persons who may reside in either of the United States or the territories thereof, or beyond seas or elsewhere, other than those enjoyed by the citizens resident within the limits of this state.—lb. 321. CHAPTER XV. MARKS AND BRANDS. 1. It shall and may be lawful for all persons residing within this state, to record their marks and brands in the clerk's office of the superior court of the county in which such person resides; and if any person or persons shall neglect to record the same, then and in that case, whenever any property shall or may happen to be in dis- pute between the party so recording his marks and brands and any other person not having recorded as aforesaid, both having one and the same marks or brands, the property being found in the posses- sion of the person complying with this act, the party so claiming any such property in dispute as aforesaid shall not be allowed to take the same out of the hands of the person found in possession, without such claimant can prove, by disinterested testimony, such property Chap. 16.] MILLS. 377 so in dispute, and that the same is his property, such proof, when the value of the property is under five pounds, to be made before any justice of the peace in the county where such property may be found, and if above that value, before any court having jurisdiction thereof. —Prin. Dig. 59. 2. Where two or more persons shall have the same marks and brands, each of them recorded : in such case the oldest record shall be evidence of right, so far as to compel the other party to prove his property by disinterested testimony, in the manner herein before pointed out: Provided, that nothing in this act contained shall compel such person or persons as have already had their brands and marks recorded in the secretary's office to record the same in the clerk's office aforesaid, but such record in the secretary's office shall be good and valid. 3. It shall be the duty of the clerks of the superior courts, upon the application of any person or persons, to record all marks and brands, in books to be kept by thein for that purpose, and give certi- ficates thereof when thereunto required by any person or persons, and for which they shall receive the fees pointed out by the act to re- vise and amend " An act for ascertaining the fees of the public officers of this state."—lb. CHAPTER XVI. MILLS. 1. All owners or occupiers of mills shall well and sufficiently grind, or cause to be well and sufficiently ground, all clean and dry grain brought to their mills, and in due turn (as far as five bushels) as the same may be brought, and may take for toll one-eighth part thereof, and no more. And every owner or occupier of a mill who shall not well and sufficiently grind, or cause to be well and sufficiently ground as aforesaid, (unless in times of drought, or other sufficient cause, of which the justice may judge,) or not in due turn, or take or exact more toll, shall for every such offence, on proof thereof by one or more credible witnesses, forfeit and pay a sum not exceeding fif- teen shillings to the party injured, recoverable with costs before a justice of the peace of the county where such offence shall be com- mitted: Provided, always, that every owner or occupier of a mill may grind his or her own grain at any time—Prin. Dig. 339. fc b b 378 naturalization. [Part IV. CHAPTER XVII. NATURALIZATION. {Law United States, 1802.) I. Any alien, being a free white person, may be admitted to be- come a citizen of the United States, or any of them, on the following conditions, and not otherwise :— First.—That he shall have declared, on oath or affirmation, before the supreme, superior, district, or circuit court of some one of the states, or of the territorial districts of the United States, or a circuit or district court of the United States, three years at least before his admission, that it was, bona fide, his intention to become a citizen of the United States, and to renounce for ever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty whatever, and particularly, by name, the prince, potentate, state, or sovereignty whereof such alien may, at the time, be a citizen or subject. Secondly.—That he shall, at the time of his application to be admitted, declare, on oath or affirmation, before some one of the courts aforesaid, that he will support the constitution of the United States, and that he doth ah- solutely and entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state, or sovereignty whatever, and particularly, by name, the prince, potentate, state, or sovereignty whereof he was before a citizen or subject; which proceedings shall be recorded by the clerk of the court. Thirdly.—That the court admitting such alien shall be satisfied that he has resided within the United States five years at least, and within the state or territory where such court is at the time held, one year at least; and it shall further appear to their satisfaction, that, during that time, he has be- haved as a man of a good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same: Provided, that the oath of the applicant shall in no case be allowed to prove his residence. Fourthly.—That in case the alien, applying to be admitted to citizenship, shall have borne any hereditary title, or been of any of the orders of nobility in the kingdom or state from which he came, he shall, in addition to the above requisition, make an express renunciation of his title or order of nobil- ity, in the court to which his application shall be made, which renunciation shall be recorded in the,said court: Provided, that no alien, who shall be a native citizen, denizen, or subject of any country, state, or sovereign with whom the United States shall be at war, at the time of his application, shall be then admitted to be a citizen of the United States : Provided also, that any alien who was residing within the limits and under the jurisdiction of the United States, before the twenty-ninth day of January, one thousand seven hundred and ninety-five, may be admitted to become a citizen, on due proof made to some one of the courts aforesaid that he has resided two years, at least, within and under the jurisdiction of the United States, and one year, at least, immediately preceding his application, within the state or territory where such court is at the time held, and on his declaring on oath or affirm- ation that he will support the constitution of the United States, and that he doth absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty whatever, and par- ticularly, by name, the prince, potentate, state, or sovereignty whereof he was before a citizen, or subject; and moreover, on its appearing to the satis- faction of the court, that during the said term of two years he has behaved as a man of good moral character, attached to the constitution of the United States, and well disposed to the good order and happiness of the same, and where the alien, applying for admission to citizenship, shall have borne any Chap. 17.] NATURALIZATION. 379 hereditary title, or been of any of the orders of nobility in the kingdom or state from which he came, on his moreover making in the court an express renunciation of his title or order of nobility, before he shall be entitled to such admission, all of which proceedings, required in this proviso to be per- formed in the court, shall be recorded by the clerk thereof: and Provided also, thdt any alien who was residing within the limits, and under the juris- diction of the United States, at any time between the said twenty-ninth day of January, one thousand seven hundred and ninety-five, and the eighteenth day of June, one thousand seven hundred and ninety-eight, may within two years after the passing of this act be admitted to become a citizen, without a compliance with the first condition above specified. 2. Provided also, and be it further enacted, That in addition to the directions aforesaid, all free white persons, being aliens, who may arrive in the United States after the passing of this act, shall, in order to become citizens of the United States, make registry and obtain certificates in the following manner, to wit: every person desirous of being naturalized, shall, if of the age of twenty-one years, make report of himself, or if under the age of twenty-one years, or held in service, shall be reported by his parent, guardian, master, or mistress, to the clerk of the district court of the district where such alien or aliens shall arrive, or to some other court of record of the United States, or of either of the territorial districts of the same, or of a particular state ; and such report shall ascertain the name, birth- place, age, nation, and allegiance of each alien, together with the eountry whence he or she migrated, and the place of his or her intended settlement; and it shall be the duty of such clerk,, on receiv- ing such report, to record the same in his office, and to grant to the person making such report, and to each individual concerned therein, whenever he shall be required, a certificate, under his hand and seal of office, of such report and registry ; and for receiving and registering each report of an individual or family, he shall receive fifty eents; and for each certificate, granted pursuant to this act, to an individual or family, fifty cents; and such certificate shall be exhibited to the court by every alien who may arrive in the United States, after the passing of this act, on his application to be naturalized, as evidence of the time of his arrival within the United States. 3. And whereas, doubts have arisen whether certain courts of record, in some of the states, are included within the description of district or circuit courts : Be it further enacted, That every court of record in any individual state, having common law jurisdiction, and a seal and clerk, or prothonotary, shall be considered as a district court within the meaning of this act; and every alien who may have been naturalized in any such court, shall enjoy, from and after the passing of the act, the same rights and privileges as if he had been naturalized in a district or circuit court of the United States. 4. And be it f urther enacted, That the children of persons duly naturalized under any of the laws of the United States, or who, pre- viousto the passing of any law on that subject by the government of the United States, may have become citizens of any one of the said states, under the laws thereof, being under the age of twenty-one years at the time of their parents being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States; and the children of 380 NATURALIZATION. [Part IV. persons who now are or have been citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States: Prorid* d, that the rights of citizenship shall not descend to persons whose fathers have never resided within the United States : Provided ah<>, that no person heretofore proscribed by any state, or who has been legally convicted of having joined the army of Great Britain during the late war, shall be admitted a citizen, as aforesaid, without the consent of the legislature of the state in which such person was pro- scribed. 5. And be it further enacted, That all acts heretofore passed respecting naturalization, be, and the same are hereby repealed.— Laws U. S. vol. 3, 475. Jlct of 1804. 1. Any alien, being a free white person, who was residing within the limits, and under the jurisdiction of the United States, at any time between the eighteenth day of June, one thousand seven hun- dred and ninety-eight, and the fourteenth day of April, one thousand eight hundred and two, and who has continued to reside within the same, may be admitted to become a citizen of the United States, without a compliance with the first condition specified in the first section of the act, entitled " An act to establish a uniform rule of naturalization, and to repeal the acts heretofore passed on that sub- ject."—lb. 614. 2. When any alien who shall have complied with the first condi- tion specified in the first section of the said original act, and who shall have pursued the directions prescribed in the second section of the said act, may die, before he is actually naturalized, the widow and the children of such alien shall be considered as citizens of the United States, and shall be entitled to all rights and privileges as such, upon taking the oaths prescribed by law.—lb. 614,615. Act of 1816. 1. The certificate of report and registry, required as evidence of the time of arrival in the United States, according to the second see- tion of the act of the fourteenth of April, one thousand eight hundred and two, entitled "An act to establish a uniform rule of naturaliza- tion, and to repeal the act heretofore passed on that subjectand also a certificate from the proper clerk or prothonotary of the deela- ration of intention, made before a court of record, and required as the first condition, according to the first section of said act, shall he exhibited by every alien on his application to be admitted a citizen of the United States, in pursuance of said act, who shall have arrived within the limits, and under the jurisdiction, of the United States since the eighteenth day of June, one thousand eight hundred and twelve, and shall each be recited at full length in the record of the court admitting such alien; otherwise he shall not be deemed to have complied with the conditions requisite for becoming a citizen of the United States; and any pretended admission of an alien who shall have arrived within the limits, and under the jurisdiction, of the United Stales, since the said eighteenth day of June, one thousand eight .Chap. 17.] NATURALIZATION. 381 hundred and twelve, to be a citizen, after the promulgation of this act, without such recital of each certificate at full length, shall be of no validity or effect under the act aforesaid. 2. Nothing herein contained shall be construed to exclude from admission to citizenship any free white person who was residing within the limits, and under the jurisdiction, of the United States at any time between the eighteenth day of June, one thousand seven hundred and ninety-eight, and the fourteenth day of April, one thou- sand eight hundred and two, and who, having continued to reside therein, without having made any declaration of intention before a court of record as aforesaid, may be entitled to become a citizen Of the United States according to the act of the twenty-sixth of March, one thousand eight hundred and four, entitled " An act in addition to an act entitled ' An act to establish a uniform rule of naturaliza- tion, and to repeal the acts heretofore passed on that subject.'" Whenever any person, without a certificate of such declaration of intention, as aforesaid, shall make application to be admitted a citizen of the United States, it shall be proved to the satisfaction of the court that the applicant was residing within the limits, and under the jurisdiction, of the United States before the fourteenth day of April, one thousand eight hundred and two, and has continued to reside within the same, or he shall not be so admitted. And the residence of the applicant within the limits, and under the jurisdiction, of the United States for at least five years immediately preceding the time of such application shall be proved by the oath or affirma- tion of citizens of the United States, which citizens shall be named in the record as witnesses. And such continued residence within the limits and under the jurisdiction of the United States, when satisfactorily proved, and the place or places where the applicant has resided for at least five years, as aforesaid, shall be stated and set forth, together with the names of such citizens, in the record of the court admitting the applicant; otherwise the same shall not entitle him to be considered and deemed a citizen of the United States.—Laws U. S. vol. 6, p. 23. Act of 1824. 1. Any alien, being a free white person and a minor, under the age of twenty-one years, who shall have resided in the United States three years next preceding his arriving at the age of twenty-one years, and who shall have continued to reside therein to the time he may make application to be admitted a citizen thereof, may, after he arrives at the age of twenty-one years, and after he shall have resided five years within the United States, including the three years of his minority, be admitted a citizen of the United States, without having made the declaration required in the first condition of the first section of the act to which this is an addition, three years previous to his ad- mission: Provided, such alien shall make the declaration required therein at the time of his or her admission; and shall further declare, on oath, and prove to the satisfaction of the court, that for three years next preceding, it has been the bona fide intention of such alien to become a citizen of the United States; and shall in all other re- spects comply with the laws in regard to naturalization. 382 OATHS—AFFIRMATIONS. [Part IV.. 2. No certificates of citizenship or naturalization heretofore obtained from any court of record within the United States shall be deemed invalid, in consequence of an omission to comply with the requisition of the first section of the act entitled " An act relative to evidence in cases of naturalization," passed the twenty-second day of March, one thousand eight hundred and sixteen. 3. The declaration required by the first condition specified in the first section of the act to which this is an addition, shall, if the same has been bona fide made before the clerks of either of the courts in the said condition named, be as valid as if it had been made before the said courts respectively. 4. A declaration by any alien, being a free white person, of his intended application to be admitted a'citizen of the United States, made in the manner and form prescribed in the first condition specified in the first section of the act to which this is an addition, two years before his admission, shall be a sufficient compliance with said condi- tion ; any thing in the said act, or in any subsequent act, to the con- trary notwithstanding.—Laws U. S. vol. 7, p. 319. CHAPTER XVIII. OATHS AFFIRMATIONS. 1. The judges, justices of the peace, and other persons who are or shall be empowered to administer oaths, shall (except in the cases by law excepted) require the party to be sworn, to lay his right bare hand upon the holy evangelist of Almighty God, in token of his en- gagement to speak the truth, as he hopes to be saved in the way and method of salvation pointed out in that blessed volume ; and in further token that if he should swerve from the truth he may justly be de- prived of all the blessings of the Gospel, and made liable to that vengeance which he has imprecated on his head: and after repeating the words," So help me God," shall kiss the holy gospels as a seal of confirmation to the said engagements.—Clayton's Justice, 259. 2. Any person or persons who shall appear in any of the courts of judicature, or before any judge or magistrate in this state,either as juror, witness, party, or otherwise, in any cause, civil or criminal, and shall make and distinctly repeat a solemn and conscientious declaration and affirmation, according to the form of his profession, in any matter, cause, or thing, wherein an oath is required by law, in the following words:—" I, A. B., do swear, in the presence of Almighty God, as I -shall answer at the great and awful day of judgment, that—(as the case may be:) So help me God." And such solemn and conscientious -declaration and affirmation shall be deemed, held, adjudged, and taken lo be valid and effectual, to all intents, constructions, and purposes whatsoever, in the same manner as if such person had taken an oath on the holy evangelist of Almighty God.—Prin. Dig. 17. 3. In all cases where persons choose to, affirm, the usual practice isi, for the person affirming to raise his hand, and to have the oath Chap. 19.] FEDLERS. 383 administered to him as though he were swearing on the Gospel, and instead of concluding with the words, " So help you God," to say, "And this you affirm, according to the mode of your faith."—Clay- ton's Justice, 9. 4. All officers, civil and military, in this state, shall take an oath to support the constitution of this state, and of the United States; and the form of said oath, so to be taken and subscribed, shall be forwarded with the dedimus to qualify the said officer, or be taken and sub- scribed at the time of receiving said commission.—Prin. Dig. 121. CHAPTER XIX. FEDLERS.* 1. The tax required of pedlers and other itinerant traders, who may carry about their wares and merchandise in wagons, or other vehicles drawn by horses or mules, or packed upon horses or mules, or other animals of draught or burden, shall be two thousand dollars for each license; which license shall be limited to one county only, in this state, and which shall not authorize trading beyond the limits of such county. And that the tax required of those pedlers or itinerant traders who may carry about their wares and merchandise on foot, and without the aid of horses or mules, or other animals, shall be annually one thousand dollars, subject to the same restrictions and limitations as above specified: Provided, that traders in tin, stone, earthen, and iron wares, actually manufactured in this state, shall not be subject to the tax imposed by this act.—Acts 1831, 229. 2. The fines which may be imposed under the third section of the act of which this is amendatory, shall not be less than three thousand dollars, nor more than ten thousand dollars.—lb. 3. On oath being made before any judicial officer of this state, justice of the inferior court, or justice of the peace, that a violation of this law has been committed, it shall be his duty to issue a warrant from under his hand, directed to any sheriff, deputy-sheriff, constable, or marshal of any town or city, commanding them, or each of them, to arrest the offender or offenders, seize, bring him or them and the goods, wares, or merchandise which they may have in their imme- diate possession, before any judge of the superior court in term time, or before any of the justices of the inferior court, or justices of the peace ; and if, on trial before any of them, it shall appear from the evidence that the charge or charges are malicious or unfounded", he, she, or they shall be discharged without cost; otherwise he, she, or they shall be bound with one or more sufficient securities in the sum of five hundred dollars, in a joint and several bond, for his, her, or their appearance at the next superior court to be held in the county where such offence shall have been committed, and on failing to give such security as the court shall deem good and sufficient, shall * The tax imposed on pedlers by the act of 1831, is a virtual prohibition of the pur- suit, and as such the business has been wholly abandoned since that time, except as excepted in the first section of this chapter. It has therefore been thought unnecessary to incorporate any other of the older statutes on this subject. 384 PUBLIC WORSHIP. [Part IV. be committed to jail; at which court the attorney or solicitor general shall prefer a bill of indictment against the party so offending, who shall, if convicted, be fined by the court in the sum of not less than three thousand dollars, nor more than ten thousand dollars* for each and every violation of this law, and the party so offending shall stand committed until such fine or fines be paid.—Daw. Comp. 320. CHAPTER XX. PUBLIC WORSHIP. 1. If any person or persons whomsoever shall interrupt or disturb any congregation of white persons assembled at any church, chapel, or meeting-house, or any other place for public worship, during the time of divine service, it shall be the duty of any justice of the peace, sheriff, constable, or any civil officer of the county, being present where the offence shall be committed, to take the person or persons so offending into custody; or on complaint made by any person on oath, to issue a warrant against him or them so offending, and the said justice is hereby empowered to impose a fine on such offender not exceeding five pounds, or on default of payment of the same to commit him or them to the common jail of the county, or to the nearest jail thereto, for a space of time not exceeding ten days; and if such offender be a slave, to order him or her to be punished by whipping on the bare back, not exceeding thirty-nine lashes.f 2. It shall be the duty of the sheriff and other officers who may collect the fines and forfeitures imposed by this act, to make a return of the amount so collected to the clerk of the inferior court, and to pay the same into the hands of the overseers of the poor, for the sole purpose of supporting the poor of the county wherein such offence shall have been committed. And no congregation or corn- pany of negroes shall, under the pretence of divine worship, as- semble themselves contrary to the act for regulating patrols.—Prin. Dig. 342. 3. It shall not be lawful for any person to sell or cause to be sold, any wine, cider, beer, whiskey, gin, rum, or brandy, or any other intoxicating liquors, within one mile of any meeting-house or other place set apart, or publicly resorted to for divine worship, during the time appropriated to such worship. 4. For every offence committed in violation of this act, the offender or offenders shall be subject to the penalty of thirty dollars, which shall be recoverable after the manner pointed out in the lirst clause of the above recited act, which fine shall be put into the hands of the justices of the inferior court, and become part of the county funds where such offence shall have been committed.—Prin. Dig. 342. * See the preceding section. t See the note on sec. 41, chap. 2, part 3, respecting criminal jurisdiction of justices of the peace. Chap. 21.] QUARANTINE. 385 CHAPTER XXI. QUARANTINE. 1. When any country shall be infected with the plague or other malignant distemper, all vessels, boats, persons, and goods, shall be subject to and be liable to perform quarantine as in this act directed ; and during such quarantine, no person or persons coming, or goods imported in any such ship, or vessel, or boat, shall come on shore or go on board any other ship, or vessel, or boat, or be landed or put into any other ship, or vessel, or boat, in any place within this state, other than such place as shall be appointed for that purpose; nor shall any person go on board any such ship, or vessel, or boat, without license first had and obtained in writing, under the hand of such person or persons who shall be appointed to see quarantine per- formed ; and the said ships, or vessels, or boats, and the persons and goods coming and imported in or going on board the same during the time of quarantine, and all ships, vessels, boats, and persons receiving any person or goods under quarantine, shall be subject to such orders, rules, and directions touching quarantine, as shall be made by the authority directing the same.—Prin. Dig. 189. 2. If any person or persons whatsoever shall presume to go on board and return from such ship, or vessel, or boat required to per- form quarantine, before or during the time of quarantine, without a license as aforesaid, every such offender shall be compelled, and in case of resistance by force or violence, be compelled, by the per- son or persons appointed as aforesaid, to return on board such ship, or vessel, or boat, and there to remain during the time of her quar- antine, and shall afterward be liable to a fine or imprisonment as herein before directed in case of persons quitting a ship, or vessel, or boat performing quarantine, and to be disposed of as in that case provided ; and the master of such ship, or vessel, or boat, is hereby obliged to receive and maintain such person on board accordingly. —Ib. 190. 3. It shall and may be lawful for any officer of the customs, or such as shall be appointed to take care that such quarantine be duly performed, to seize any boat or skiff belonging to such ship or ves- sel, or which shall therewith be found, and to detain the same until the quarantine shall be performed.—Ib. 4. After the quarantine shall have been duly performed, according to the directions of this act, and upon proof to be made by oath of the master or other person having charge of the said shi-p, or vessel, or boat, and two of the persons belonging to the said ship, or vessel, or boat, before any one of the justices of the peace of this state, that such ship, or vessel, or boat, and all and every person therein, have duly performed the quarantine as aforesaid, and that the ship, or vessel, or boat, and all the persons on board, are free from an infectious distemper; then, in such case, such justice is hereby re- ccc 386 QUARANTINE, [Part IV. quired to give a certificate (gratis) thereof, and thereupon such ship, or vessel, or boat, and all and every person therein, shall not be liable to any further restraint, by reason of any matter or thing contained in this act.—Prin. Dig. 190. 5. The goods imported in such ship, or vessel, or boat, shall, after such quarantine performed, be opened and aired in such place and for such time as shall be directed concerning the same.—lb. 6. Whenever the governor or commander-in-chief for the time being, shall find it necessary to give any orders or directions for preventing any contagious distemper's being brought into this state, or from any part of this state infected therewith into any uninfected part of this state, by persons travelling by land, or by water, it shall and may be lawful for the said governor or commander-in-chief, by proclamation for that purpose to be issued, to prohibit all and every person or persons coming from such infected places to enter into or come within such bounds, limits, or lines as shall be in such procla- mation described, for and during such time as shall be therein men- tioned, and to appoint boats and sentinels to put the same in due execution ; and the persons appointed, and every of them, shall have the same power to compel any persons attempting to pass through or within such bounds, limits, or lines as is by this act given to the persons to be appointed for seeing quarantine duly performed, and shall be liable to the same penalties for suffering persons wilfully to pass through or within the same; and all and every person or per- sons wilfully passing through or within the said bounds, limits, or lines, shall be liable to the fine or imprisonment herein before directed in case of any person's quitting any ship, or vessel, or boat perform- ing quarantine, and to be disposed of as in that case provided.— lb. 190,191. 7. The pilot or pilots belonging to the several ports of this state, shall, before his or their entering on board any ship or vessel designed for this state, make strict inquiry of every master or commander of the same, whether the plague, smallpox, malignant fever, or any other contagious distemper, be in such ships or vessels ; and every such master or commander is hereby strictly enjoined, with- out equivocation or reserve, to give just and true answers to all such inquiries of the said pilot or pilots, under the penalties here- after mentioned and expressed; and in case the said pilot or pilots shall, upon inquiry as aforesaid, find that the plague, smallpox, malignant fever, or any other contagious distemper be in such ship or vessel, such pilot or pilots are hereby strictly forbidden and pro- hibited from entering therein on any pretence whatever : the quar- antine of any person or vessels, or of their goods, shall be of such duration, and in such places, and under such regulations as shall be devised and held expedient, so far as respects the arrival of vessels or persons in Tybee or Wassaw inlets, and rivers thereof, under the inspection of the corporation of Savannah ; and so far as respects other inlets or rivers in this state, under the inspection of the justices of the county, or commissioners of the town adjacent to such inlet or river, or commissioners of pilotage of such port. Chap. 21.] quarantine. 387 as the case may happen ; and such corporation, justices, or com- missioners are hereby fully authorized to fix such sentinels, and guard-boats, and to use all and every means in their power to en- force this law for the purposes intended.—Prin. Dig. 191. 8. On the notification of such corporation, justices, or others herein empowered, after notifying to the people of the district they live in of the necessity of ordering quarantine to be performed, shall forthwith transmit, by express or post, an exact account and statement thereof to the governor and commander-in-chief for the time being, who is directed to publish the same by proclamation, enjoining and requiring a due obedience to the rules adopted for the preventing contagious distempers being spread in this state, and a due obedience to the duties required of such regulations "accordingly.—lb. 9.s The foregoing regulations concerning quarantine are con- tained in an act passed in 1793, which is altered and amended by acts passed in 1803 and 1805. The jurisdiction of the corporation of the city of Savannah shall, in cases of quarantine, extend to all ships and vessels which shall enter any port or inlet from Ossabaw to Tybee, including all inlets, rivers, and creeks within those limits. 10. It shall and may be lawful to and for the mayor and alder- men of the said city, and they are hereby vested with full power and authority to take cognizance of, and inquire into all violations of the said act committed within the limits aforesaid ; and upon such inquiry, the said mayor and aldermen shall and may, as they shall think proper, according to the nature and degree of the offence, either bind the offender or offenders over to appear at the next superior court, to answer^to any indictment that may be pre- ferred against him, her, or tkem in terms of the said act, or they may proceed against such offender or offenders in a summary man- ner, as is usual and customary with the said corporation in other cases, and inflict and levy such fine or fines on the offender or offenders, not exceeding fifty dollars for each and every offence, as they in their judgment shall think fit and necessary to deter others from offending in like manner ; and in case no goods or chattels shall be found whereon to levy such fine or fines as aforesaid, then it shall be lawful to and for the said mayor and aldermen to com- mit the offender or offenders to the common jail, there to remain without bail or mainprise for a term not exceeding one month, or until the said fine or fines, together with the costs and charges of prosecution, shall be fully paid and satisfied ; anything in the said act contained to the contrary hereof in anywise notwithstanding. 11. With respect to the other rivers and inlets of this state, the same powers which are hereby vested in the corporation of Savan- nah, is and are hereby given to and vested in the justices of the county, or commissioners of the town adjacent to such inlets or rivers, or the commissioners of pilotage of the port, as it may happen, and they are hereby authorized to proceed in the same manner as 388 QUARANTINE. [Part IV. is herein before mentioned with respect to the mayor and aldermen of Savannah. 12. It shall and may be lawful to and for the said mayor and aldermen to remove from the said city any person or persons who may be infected with the smallpox or other contagious disorder, to such place or places without the limits thereof as they may appoint for that purpose.—Prin. Dig. 192. 13. It shall be lawful for the corporation of the city of Savannah, whenever they shall have reason to suspect that any vessel or ves- sels, person or persons, has or have sailed or come from any port or place infected, or supposed to be infected with any malignant or contagious disorder, by resolution or order, to require and compel the said vessel or vessels so arriving, or person or persons, to come to anchor, or stop at any place by said resolution or order pointed out, until an examination is made by the health-officer as to the state and condition of the said vessel or vessels, person or persons, and until sufficient purification shall have taken place, and a cer- tificate of the health-officer obtained to that effect.—lb. 193. Upon the appearance of smallpox in the interior of the state, the legisla- ture of 1834 adopted the following resolutions :— 14. That the justices of the inferior court of Coweta, and also of any other county in which the disease may appear, be, and they are hereby authorized and empowered to provide a temporary hospital, to which to remove all who have been or may be infected by smallpox, and to employ suitable attendants, and a guard to prevent the communication of the sick and their attendants with others ; the expense of which shall be paid from the treasury of the state on the warrant of the governor.—Acts of 1834, pamph. 310, 311. 15. That the sum'of fifteen thousand dollars be, and the same is hereby appropriated for the erection of a lazaretto, for the reception of such persons as under the quarantine laws are fit sub- jects, at or near the city of Savannah, at such place as shall be designated by the mayor and aldermen of said city ; and that the said building shall be erected on such plan as by the said corpora- tion shall be determined, and under the superintendence of such person as that corporation shall appoint, who shall be compensated for his services, as superintendent, by the said corporation ; and the said building, when so erected, shall be under the charge and control of said corporation, who, at its expense, shall maintain and support the establishment, attendants, and supplies.—lb. 16. That should the aforesaid disease make its appearance in an adjoining state, immediately on or near the line of any county in this state, the inferior court of said county is hereby authorized to employ a suitable guard, and to take such precautionary measures as they may deem best calculated to prevent its extension into this state.— lb. Chap. 22.] RENT. 389 CHAPTER XXII. RENT. 1. It shall and may be lawful for any person who may hereafter have rent due, where the same does not exceed thirty dollars, to make application to any justice of the peace within the district where his, her, or their tenant may reside, and obtain from such justice a distress warrant for the sum claimed to be due, on oath in writing, for the said rent, and the same may be levied, by any constable duly qualified, on any property belonging to the said tenant, and shall advertise and sell the same under the same rules and regulations as other sales under execution; and where any distress shall issue for a sum exceeding thirty dollars, it shall be levied by the sheriff of said county, advertised and sold as in cases of other executions: Pro- vided, nevertheless, that the party distrained shall be entitled to re- plevy the goods so distrained, by making oath that the sum, or some part thereof, distrained for is not due, and give security for the even- tual condemnation money ; and in that case it shall be the duty of such officer to return the same to the court having cognizance of the same, and the same shall be determined by a jury, as practised in other cases of claims.—Prin. Dig. 394. 2. Where property distrained may be claimed by a third person, the same shall be claimed on oath, and shall be returned, tried, and determined in like manner and under the same rules and regulations as are by law pointed out for the trial of the right of property.-— lb. 394. 3. In no case a preference shall be given to persons distraining for rent, where there are any judgments against the person or prop- erty so distrained.—lb. 4. Where any tenant shall refuse to give possession of the prem- ises at the end of his lease, it shall be lawful for the person leasing the same to demand of such tenant, monthly, double the sum that the same was leased for, and recover the same at the expiration of every month, or in the same proportion for a longer or shorter time, by distress, in manner pointed.out as aforesaid.—lb. But see post, sec. 7. 5. If any person leasing or renting land, house or houses, shall fail to pay the rent at the time the same shall become due, it shall and may be lawful for the lessor immediately thereafter to enter and re- take possession of the premises so by him leased or rented.—lb. 394, 395. 6. All contracts for rents, whether verbal or in writing, shall bear interest from the time the same shall become due, any law, usage, or custom to the contrary notwithstanding; and all actions commenced in any of the courts of this state for the recovery of rent in arrear, shall be tried at the term to which the same shall be returnable, un- less good cause shall be shown for the continuance thereof; nor shall any such action be continued more than one term at the instance of either party.—lb. 395. 7. It shall and may be lawful upon the expiration of any lease, or 390 RENT. [Part IV. time for which lands have been rented, which are now in existence, or have already expired, or which shall hereafter exist, where the tenant or his sub-tenant holds over, and wrhere the owner of the rented property, or his agent or representative, shall desire to have posses- sion of the same, to demand of the tenant or tenants the possession of the rented property; and in case of refusal on the part of the tenant, or omission on his, her, or their part to deliver possession, it shall and may be lawful for the owner thereof, or by his or her agent or representative, to go before the judge of the superior court, or any justice of the inferior court, or justice of the peace, and make oath that the lease or term of time for which the land was rented has ex- pired, and that the tenant refuses, omits, or neglects to give posses- sion ; it shall be the duty of the person before whom the oath is made to issue or grant a warrant or process directed to the sheriff* or his de- puty, requiring or commanding him to deliver to the owner, his agent or representative, peaceable, full, and quiet possession of the rentt d premises, removing the tenant or tenants, with his property found thereon, belonging to such tenant or tenants, therefrom.—Daw. Cornp. 220. 8. When the tenant shall declare on oath that his lease, whether written or verbal, is not expired, or that he does not hold the prem- ises either by lease or rent from the said person who has made the said oath, or by any one holding under him or them by rent or lease, he shall not be removed from the possession of the said premises, but the sheriff shall return the proceedings to the next superior court of the county where the land lies, and the fact be there tried ; and if determined against the tenant or tenants, he shall pay double the rent received, and the person making the said oath shall be entitled to a writ of possession, to be issued from and under the directions of the said superior court, directed to the sheriff or his deputy, who shall give possession of the premises, as prescribed in the first section of this act.—lb. 220, 221. 9. The sheriff, for executing the process aforesaid, shall be allowed the sum of three dollars ; which amount shall be paid by the tenant, and his goods levied on for that purpose.—lb. 221. 10. jForm of Proceedings against a Tenant when he holds rented Property over the Time specified in the Contract, r ex- ports shall be for the use of the treasury of the United States ; and all such laws shall be subject to the revision and control of the con- gress. No state shall, without the consent of congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into 424 CONSTITUTION OF any agreement or compact with another state, or with a foreign power, or engage in a war, unless actually invaded, or in such im- minent danger as will not admit of delay. ARTICLE II. SECTION I. The executive power shall be vested in a president of the United States of America. He shall hold his office during the term of four years, and, together with the vice-president, chosen for the same term, be elected as follows :— Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in the congress; but no senator or representative, or person holding an office of trust or profit under the United States shall be appointed an elector. [The electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabit- ant of the same state with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each ; which list they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the president of the Senate. The president of the Senate shall, in presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the president, if such number be a majority of the whole number of electors appointed, and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose, by ballot, ■one of them for president; and, if no person have a majority, then from the five highest on the list the said house shall, in like manner, choose the president. But, in choosing the president, the vote shall be taken by states, the representation from each state having one vote : a quorum for this purpose shall consist of a member or mem- bers from two-thirds of the states, and a majority of all the states shall be necessary to a choice. In every case, after the choice of the president, the person having the greatest number of votes of the electors shall be the vice-president. But if there should remain two or more who have equal votes, the Senate shall choose from them, by ballot, the vice-president.] The congress may determine the time of choosing the electors, and the day on which they shall give their votes ; which day shall be the same throughout the United States. No person, except a natural born citizen, or a citizen of the United States at the time of the adoption of this constitution, shall be eligible to the office of president; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States. In case of the removal of the president from office, or of his death, THE UNITED STATES. 425 resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the vice-president; and the congress may, by law, provide for the case of removal, death, res- ignation, or inability, both of the president and vice-president, de- claring what officer shall then act as president, and such officer shall act accordingly, until the disability be removed, or a president shall be elected. The president shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected; and he shall not receive within that period any other emolument from the United States, or any of them. Before he enters on the execution of his office, he shall take the following oath or affirmation:— " I do solemnly swear (or affirm) that I will faithfully execute the office of president of the United States, and will, to the best of my ability, preserve, protect, and defend the constitution of the United States." SECTION II. The president shall be commander-in-chief of the army and navy of the United States, and of the militia of 4he several states, when called into the actual service of the United States: he may require the opinion, in writing, of the principal officer in each of the execu- tive departments, upon any subject relating to the duties of their respective offices; and he shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment. He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur ; and he shall nominate, and by and with the advice and con- sent of the Senate, shall appoint ambassadors, other public ministers, and consuls, judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise pro- vided for, and which shall be established by law. But the congress may, by law, vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or in the heads of departments. The president shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session. SECTION III. He shall from time to time give to the congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient: he may, on extraordinary occasions, convene both houses, or either of them; and in case of disagreement between them with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall com- mission all the officers of the United States. Hhh 42G CONSTITUTION OF SECTION IV. The president, vice-president, and all civil officers of the United States shall be removed from office on impeachment for, and convic- tion of treason, bribery, or other high crimes and misdemeanors. ARTICLE III. SECTION I. The judicial power of the United States shall be vested in one su- preme court, and in such inferior courts as the congress may, from time to time, ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office. SECTION II. The judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controver- sies to which the United States shall be a party; to controversies between two or more states, between a state and citizens of another stale, between citizens of different states, between citizens of the same state claiming lands under grants of different states, and between a state or the citizens thereof, and foreign states, citizens, or subjects. In all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction. In all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the congress shall make. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed ; but when not committed within any state, the trial shall be at such place or places as the congress may by law have directed. SECTION III. Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The congress shall have power to declare the punishment of trea- son, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted. THE UNITED STATES. 427 ARTICLE IY. SECTION I. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. SECTION II. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdic- tion of the crime. No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due. SECTION III. New states may be admitted by the congress into this union; but no new state shall be formed or erected within the jurisdiction of any other state ; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislature of the states concerned, as well as of the congress. The congress shall have power to dispose of, and make all need- ful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this constitution shall be so construed as to prejudice any claim of the United States, or of any particular state. SECTION IV. The United States shall guaranty to every state in this union a republican form of government, and shall protect each of them against invasion; and, on application of the legislature, or of the executive, (when the legislature cannot be convened,) against do- mestic violence. ARTICLE Y. The congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this constitution, or on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes as part of this constitution, when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the congress: Pro- vided, that no amendment which may be made prior to the year one 428 CONSTITUTION OF thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article ; and that no state without its consent shall be deprived of its equal suffrage in the Senate. ARTICLE VI. All debts contracted and engagements entered into before the adoption of this constitution, shall be as valid against the United States under this constitution as under the confederation. This constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land ; and the judges in every state shall be bound thereby; anything in the constitution or laws of any state to the contrary not- withstanding. The senators and representatives before mentioned, and the mem- bers of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation to support this constitution; but no reli- gious test shall ever be required as a qualification to any office or public trust under the United States. ARTICLE VII. The ratification of the conventions of nine states shall be sufficient for the establishment of this constitution between the states so ratify- ing the same. Done in convention, by the unanimous consent of the states present, the seventeenth day of September, in the year of our Lord one thousand seven hundred and eighty-seven, and of the independence of the United States of America the twelfth. AMENDMENTS. ARTICLE I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to as- semble, and to petition the government for a redress of grievances. ARTICLE II. A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. ARTICLE III. No soldier shall, in time of peace, be quartered in any house, with- out the consent of the owner, nor in time of war, but in a manner to be prescribed by law. THE UNITED STATES. 429 ARTICLE IV. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated ; and no warrant shall issue but upon probable cause, sup- ported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ARTICLE V. No person shall be held to answer for a capital or otherwise infa- nious crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger; nor shall any person be subject, for the same offence, to be twice put in jeop- ardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law ; nor shall private property be taken for public use without just compensation. ARTICLE VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation ; to be confronted with the wit- nesses against him ; to have compulsory process for obtaining wit- nesses in his favour; and to have the assistance of counsel for his defence. ARTICLE VII. In suits at common law, wrhere the value in controversy shall ex- ceed twenty dollars, the right of trial by jury shall be preserved ; and no fact tried by a jury shall be otherwise re-examined in any court in the United States, than according to the rules of the com- rrion law. ARTICLE VIII. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. ARTICLE IX. The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people. ARTICLE X. The powers not delegated to the United States by the constitu- tion, nor prohibited by it to the states, are reserved to the states re- spectively, or to the people. ARTICLE XI. The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, or by cit- izens or subjects of any foreign state. 430 CONSTITUTION OP THE UNITED STATES. ARTICLE XII. The electors shall meet in their respective states, and vote by ballot for president and vice-president, one of whom, at least, shall not be an inhabitant of the same state with themselves. They shall name in their ballots the person voted for as president, and in distinct ballots the person voted for as vice-president; and they shall make distinct lists of all persons voted for as president, and of all persons voted for as vice-president, and of the number of votes for each ; which lists they shall sign and certify, and transmit, sealed, to the seat of the government of the United States, directed to the president of the Senate. The president of the Senate shall, in presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted ; the person having the greatest number of votes for president shall be the president, if such number be a ma- jority of the whole number of electors appointed ; and if no person have such majority, then, from the persons having the highest num- bers, not exceeding three, on the list of those voted for as president, the House of Representatives shall choose immediately, by ballot, the president. But, in choosing the president, the votes shall be taken by states, the representation from each state having -one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be neces- sary to a choice. And if the House of Representatives shall not choose a president, whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the vice-president shall act as president, as in the case of the death or other constitu- tional disability of the president. The person having the greatest number of votes as vice-president shall be the vice-president, if such number be a majority of the whole number of electors appointed ; and if no person have a majority, then, from the two highest numbers on the list, the Senate shall choose the vice-president: a quorum for the purpose shall consist of two-thirds of the whole number of senators; and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of president, shall be eligible to that of vice-president of the United States. ARTICLE XIII. If any citizen of the United States shall accept, claim, receive, or retain any title of nobility or honour, or shall, without the consent of congress, accept and retain any present, pension, office, or emolument of any kind whatever, from any emperor, king, prince, or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them. CONSTITUTION OF THE STATE OF GEORGIA, (AS AMENDED TO 1834.) ARTICLE I. Sec. 1. The legislative, executive, and judiciary departments of government shall be distinct, and each department shall be confided to a separate body of magistracy; and no person, or collection of persons, being of one of those departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted. Sec. 2. The legislative power shall be vested in two separate and distinct branches, to wit: a Senate and House of Representatives, to be styled the General Assembly. Sec. 3. The senate shall be elected annually on the first Monday in November, until such day of election be altered by law; and shall be composed of one member from each county, to be chosen by the electors thereof. Sec. 4. No person shall he a senator who shall not have attained to the age of twenty-five years ; and have been nine years a citizen of the United States, and three years an inhabitant of this state, and shall have usually resided within the county for ivhich he shall be re- turned, at least one year immediately preceding his election, (except persons who may have been absent on public business of this slate, or of the United States;) and is and shall have been possessed in his own right of a settled freehold estate of the value of five hundred dol- lars, or of taxable property to the amount of one thousand dollars within the county, for one year preceding his election; and whose estate shall, on a reasonable estimation, be fully competent to the dis- charge of his just debts over and above that sum * Sec. 5. The Senate shall elect, by ballot, a president out of their own body. Sec. 6. The Senate shall have the sole power to try all impeach- ments. When sitting for that purpose, they shall be on oath or affirmation; and no person shall be convicted without the concurrence of two-thirds of the members present; judgment in cases of impeach- ment shall not extend further than removal from office and disquali- fication to hold and enjoy any office of honour, trust, or profit, within * The following is the proposed substitute for the above fourth section, which was fiassed in 1834, and which, if repassed in 1835, will become part of the constitution, in ieu of the above:— " No person shall be a senator who shall not have attained to the age of twenty-five years, and have been nine years a citizen of the United States, and three years an inhab- itant of this state, and shall have usually resided within the county for which he shall be returned at least one year immediately preceding his election, except persons who may have been absent on lawful business of this state or of the United States." 432 CONSTITUTION this state; but the party convicted, shall, nevertheless, be subject to indictment, trial, judgment, and punishment, according to law. Sec. 7. The House of Representatives shall be composed of mem- bers from all the counties which now are, or hereafter may be in- eluded within this state, according to their respective numbers of free white persons, and including three-fifths of all the people of colour: the actual enumeration shall be made within two years, and within every subsequent term of seven years thereafter, at such time, and in such manner, as this convention may direct; each county containing three thousand persons, agreeably to the foregoing plan of enumera- tion, shall be entitled to two members; seven thousand, to three members, and twelve thousand, to four members; but each county shall have at least one, and not more than four members. The representatives shall be chosen annually, on the first Monday in No- vember, until such day of election be altered by law. [Here follows a temporary provision, apportioning the representa- tives for the twenty-four counties then laid out, since wThich time several enumerations have been taken; the latest in 1831.]—See Acts of 1831, p. 19. Sec. 8. No person shall be a representative who shall not have at- tabled to the age of twenty-one years, and have been seven years a citi- zen of the United States, three years an inhabitant of this state, and have usually resided in the county in which he shall be chosen, one year immediately preceding his election, (unless he shall have been absent on the public business of this state, or of the United States; and shall be possessed in his own right, of a settled freehold estate of the value of two Jmndrecl and fifty dollars, or of taxable property to the amount of five hundred dollars, within the county, for one year pre- ceding his election ; and whose estate shall, on a reasonable estima- tion, be competent to the discharge of his just debts over and above that sum* Sec. 9. The House of Representatives shall choose their speaker and other officers. Sec. 10. They shall have solely the power to impeach all persons who have been or may be in office. Sec. 11. No person holding any military commission or other ap- pointment having any emolument or compensation annexed thereto, under this state, or the United States, or either of them, (except jus- tices of the inferior courts, justices of the peace, and officers of the militia,) nor any person who has had charge of public moneys belong- ing to the state, unaccounted for and unpaid, or who has not paid all legal taxes or contributions to the government required of him, * The following is the proposed substitute for the above eighth section, passed in 1834, and which, if repassed in 1835, will become part of the constitution in lieu of the above :— "No person shall be a representative who shall not have attained to the age of twenty-one years, and have been a citizen of the United States seven years, and three years an inhabitant of this state, and have usually resided in the county in which he shall be chosen one year immediately preceding his election, unless he shall havejheen absent on the public business of this state, or of the United States." OP GEORGIA. 433 shall have a seat in either branch of the General Assembly; nor shall any senator or representative be elected to any office or ap- pointrnent by the legislature, having any emoluments or compensa- tion annexed thereto, during the time for which he shall have been elected with the above exceptions, unless he shall decline accepting his seat, by notice to the executive, writhin twenty days after he shall have been elected ; nor shall any member, after having taken his seat, be eligible to any of the aforesaid offices or appointments during the time for which he shall have been elected. Sec. 12. The meeting of the General Assembly shall be annual, on the second Tuesday in January, until such day of meeting be altered by law ; a majority of each branch shall be authorized to proceed to business; but a smaller number may adjourn from day to day, and compel the attendance of their members in such manner as each house shall prescribe. Sec. 13. Each house shall be judges of the elections, returns, and qualifications of its own members, with powers to expel or punish by censuring, fining, and imprisoning, or either, for disorderly behaviour, and may expel any person convicted of any felonious or infamous offence ; each house may punish by imprisonment "during session any person not a member, who shall be guilty of disrespect, by any dis- orderly or contemptuous behaviour in its presence, or vffio, during session, shall threaten harm to the body or estate of any member, for anything said or done in either house, or who shall assault any of them therefor; or shall assault or arrest any witness in going to or returning therefrom, or who shall rescue any person arrested by order of either house. Sec. 14. No senator or representative shall be liable to be arrested during his attendance on the General Assembly, or for ten days pre- vious to its sitting, or for ten days after the rising thereof, except for treason, felony, or breach of the peace ; nor shall any member be liable to answer for anything spoken in debate, in either house, in any court or place elsewhere ; but shall, nevertheless, be bound to answrer for perjury, bribery, or corruption. Sec. 15. Each house shall keep a journal of its proceedings, and publish them immediately after their adjournment; and the yeas and nays of the members on any question shall, at the desire of any two members, be entered on the journals. Sec. 16. All bills for raising revenue or appropriating moneys, shall originate in the House of Representatives ; but the Senate shall pro- pose or concur with amendments as in other bills. Sec. 17. Every bill shall be read three times, and on three separate days, in each branch of the General Assembly, before it shall pass, unless in cases of actual invasion or insurrection ; nor shall any law or ordinance pass containing any matter different from what is expressed in the title thereof; and all acts shall be signed by the president in the Senate, and the speaker in the House of Repre- sentatives: no bill or ordinance which shall have been rejected by either house, shall be brought in again during the session, under the 434 CONSTITUTION same, or any other title, without the consent of two-thirds of each branch. Sec. 18. Each senator and representative, before he be permitted to take his seat, shall take an oath or make affirmation that he hath not practised any unlawful means, either directly or indirectly, to pro- cure his election, and every person shall be disqualified from serving as a senator or representative for the term for which he shall have been elected, who shall be convicted of having given or offered any bribe or treat, or canvassed for such election ; and every candidate employing like means and not elected, shall, on conviction, be ineligi- ble to hold a seat in either house, or to hold any office of honour or profit for the term of one year, and to such other disabilities or penal- ties as may be prescribed law. Sec. 19. Every member of the Senate or House of Representatives shall, before he takes his seat, take the following oath or affirmation, to wit: " I, A. B., do solemnly swear (or affirm, as the case may be) that I have not obtained my election by bribery, threats, canvassing, or other undue or unlawful means, used by myself, or others by my desire or approbation for that purpose ; that I consider myself con- stitutionally qualified as a senator or representative ; and that on all questions and measures which may come before me, I will give my vote, and so conduct myself, as may, in my judgment, appear most conducive to the interest and prosperity of this state; and that I will bear true faith and allegiance to the same ; and to the utmost of my power and ability observe, conform to, support, and defend the constitution thereof." Sec. 20. No person who hath been, or may be convicted of fel- ony, before any court of this state, or any of the United States, shall be eligible to any office or appointment of honour, profit, or trust, within this state. Sec. 21. Neither house, during the session of the General Assem- bly shall, without the consent of the other, adjourn for more than three days, nor to any other place, than that at which the two branches shall be sitting; and in case of disagreement between the Senate and House of Representatives with respect to their adjourn- ment, the governor may adjourn them. Sec. 22. The General Assembly shall have power to make all laws and ordinances which they shall deem necessary and proper for the good of the state, which shall not be repugnant to this con- stitution. Sec. 23. They shall have power to alter the boundaries of the present counties, and to lay off new ones, as well out of the coun- ties already laid off, as out of the other territory belonging to the state ; but the property of the soil, in a free government, being one of the essential rights of a free people, it is necessary, in order to avoid disputes, that the limits of tftis state should be ascertained with precision and exactness ; and this convention, composed of the immediate representatives of the people, chosen by them to assert their rights, and to revise the powers given by them to the govern- ment, and from whose will all ruling authority of right flows, doth OP GEORGIA. 435 assert and declare the boundaries of this state to be as follows: That is to say, the limits, boundaries, jurisdictions, and authority of the state of Georgia, do, and did, and of right ought to extend from the sea, or the mouth of the river Savannah, along, the northern branch or stream thereof, to the fork or confluence of the rivers now called Tugalo and Keowee, and from thence along the most northern branch or stream of the said river Tugalo, till it intersects the nor- thern boundary line of South Carolina. If the said branch or stream of Tugalo extends so far north, reserving all the islands in the said rivers Savannah and Tugalo to Georgia; but if the head spring or source of any branch or stream of the said river Tugalo does not extend to the north boundary line of South Carolina, then a west line to the Mississippi to be drawn from the head spring or source of the said branch or stream of Tugalo river, which extends to the highest northern latitude; thence down the middle of the said river Mississippi until it shall intersect the northernmost part of the thirty-first degree of north latitude; south by a line drawn due east from the termination of the line last mentioned, in the latitude of thirty-one degrees north of the equator, to the middle of the river Apalachicola or Chatahoochee ; thence along the middle thereof to its junction with Flint river, thence straight to the head of St. Mary's river, and thence along the middle of St. Mary's river to the Atlan- tic ocean ; and from thence to the mouth or inlet of Savannah river, the place of beginning. Including and comprehending all the lands and waters within the said limits, boundaries, and jurisdictional rights, and also all the islands within twenty leagues of the sea coast. And this convention doth further declare and assert, that all the territory without the present temporary line and within the limits aforesaid, is now of right the property of the free citizens of this state, and held by them in sovereignty, inalienable but by their consent: Provided, nevertheless, that nothing herein contained shall be construed so as to prevent a sale to, or contract with the United States, by the legislature of this state, of and for all or any part of the western territory of this state, lying westward of the river Cha- tahoochee, on such terms as may be beneficial to both parties; and may procure an extension of settlement, and an extinguishment of Indian claims in and to the vacant territory of this state, to the east and north of the said river Chatahoochee, to which territory such power of contract or sale, by the legislature, shall not extend : and Provided also, the legislature may give its consent to the establish- ment of one or more governments westward thereof; but monopo- lies of land by individuals being contrary to the spirit of our free government, no sale of territory of this state, or any part thereof, shall take place to individuals or private companies, unless a county or counties shall have been first laid off, including such territory, and the Indian rights shall have been extinguished thereto. Sec. 24. The foregoing section of this article having declared the common rights of the free citizens of this state in and to all the territory without the present temporary boundary line, and within the limits of this state thereby defined, by which the contemplated 436 CONSTITUTION purchases of certain companies of a considerable portion thereof are become constitutionally void ; and justice and good faith require that the state should not detain a consideration for a contract which has failed ; the legislature, at their next session, shall make provis- ion by law for returning to any person or persons who has or have bona fide deposited moneys for such purposes in the treasury of this state: Provided, that the same shall not have been drawn there- from in terms of the act passed the thirteenth day of February, one thousand seven hundred and ninety-six, commonly called the rescinding act, or the appropriation laws of the years one thousand seven hundred and ninety-six, and one thousand seven hundred and ninety-seven: nor shall the moneys paid for such purchases ever be deemed a part of the funds of this state, or be liable to appropri- ation as such; but until such moneys be drawn from the treasury, they shall be considered altogether at the risk of the persons who have deposited the same. No money shall be drawn out of the treasury, or from the public funds of this state, except by appropri- ation made by law, and a regular statement and account of the receipts and expenditures of all public moneys shall be published from time to time. No vote, resolution, law, or order shall pass the General Assembly, granting a donation or gratuity in favour of any person whatever, but by the concurrence of two-thirds of the General Assembly. Sec. 25. It shall be the duty of the justices of the inferior court, or any three of them, in each county respectively, within sixty days after the adjournment of this convention, to appoint one or more fit persons in each county, not exceeding one for each battalion district, whose duty it shall be to take a full and accurate census or enu- meration of all free white persons and people of colour residing therein, distinguishing in separate columns the free white persons from persons of colour; and return the same to the clerks of the su- perior courts of the several counties, certified under their hands, on or before the first day of December next; the persons so appointed being first severally sworn before the said justices, or either of them, duly and faithfully to perform the trust reposed in them ; and it shall be the duty of the said clerks to transmit all such returns, under seal, directed to the speaker of the House of Representatives, at the first session of the legislature thereafter; and it shall be the duty of the General Assembly, at their said first session, to apportion the mem- bers of the House of Representatives among the several counties, agreeably to the plan prescribed by this constitution, and to provide an adequate compensation for the taking of the said census. Every person, whose usual place of abode shall be in any family on the first Monday in July next, shall be returned as of such family; and every person occasionally absent, at the time of taking the enumeration, as belonging to that place in which he usually resides. The General Assembly shall, by law, direct the manner of taking such census or enumeration, within every subsequent term of seven years, in con- formity to this constitution. And it is declared to be the duty of all officers, civil and military, throughout this state, to be aiding and as- OP GEORGIA. 437 sisting in the true and faithful execution thereof. In case the justice of the inferior courts should fail to make such appointments, or if there should not be a sufficient number of such justices in any county, then the justices of the peace, or any three of them, shall have and exercise like powers and authority respecting the said census; and if the cen- sus or enumeration of any county shall not be so taken and returned, then, and in that case, the General Assembly shall apportion the rep- resentation of such county, according to the best evidence in their power, relative to its population. ARTICLE II. Sec. 1. The executive power shall be vested in a governor, who shall hold his office during the term of two years, and until such time as a successor shall be chosen and qualified. He shall have a compe- tent salary established by law, which shall not be increased or dimin- ished during the period for which he shall have been elected ; neither shall he receive, within that period, any other emolument from the United States, or either of them, or from any foreign power. Sec. 2. The governor shall be elected by persons qualified to vote for members of the General Assembly, on the first Monday in Octo- ber, in the year of our Lord one thousand eight hundred and twenty- five, and on the first Monday in October, in every second year there- after, until such time be altered by law, which election shall be held at the place of holding general elections in the several counties of this state, in the same manner as is prescribed for the election of members of the General Assembly. The returns of every election for governor, shall be sealed up by the presiding justices, separately from other returns, and directed to the president of the Senate and the speaker of the House of Representatives, and transmitted to his excel- lency the governor, or the person exercising the duties of governor for the time being, who shall, without opening the said returns, cause the same to be laid before the Senate on the day after the two houses shall have been organized, and they shall be transmitted by the Senate to the House of Representatives. The members of each branch of the General Assembly shall convene in the representative chamber, and the president of the Senate, and speaker of the House of Repre- sentatives shall open and publish the returns in presence of the Gen- eral Assembly, and the person having the majority of the whole num- ber of votes given in, shall be declared duly elected governor of this state; but if no person have such majority, then from the persons having the two highest number of votes who shall be in life, and shall not decline an election at the time appointed for the legislature to elect, the General Assembly shall elect immediately a governor by joint ballot; and in all cases of election of a governor by the General Assembly, a majority of the votes of the members present shall be necessary for a choice. Contested elections shall be determined by both houses of the General Assembly, in such manner as shall be pre- scribed by law. Sec. 3. No person shall be eligible to the office of governor, who 438 CONSTITUTION shall not have been a citizen of the United States twelve years, and an inhabitant of this state six years, and who hath not attained to the age of thirty years, and who does not possess five hundred acres of land, in his own right, within this state, and other property to the amount of four thousand dollars, and whose estate shall not on a reasonable estimation be competent to the discharge of his just debts, over and above that sum. Sec. 4. In case of the death, resignation, or disability of the gov- ernor, the president of the Senate, or the last acting president of the senate, shall exercise the executive powers of the government, until such disability be removed, in the election and qualification of the governor by the General Assembly ; and in case of the death, resig- nation, or disability of the president of the Senate, or the last acting president of the Senate, the speaker of the House of Representatives, or the acting speaker of the House of Representatives, shall exercise the executive powers of the government until such disability be removed in the election and qualification of a governor by the General Assem- bly. Sec. 5. The governor shall, before he enters on the duties of his office, take the following oath or affirmation : " I do solemnly swear (or affirm, as the case may be) that I will faithfully execute the office of governor of the state of Georgia ; and will, to the best of my ubil- ities, preserve, protect, and defend the said state, and cause justice to be executed in mercy therein, according to the constitution and laws thereof." Sec. 6. He shall be commander-in-chief of the army and navy of this state, and of the militia thereof. Sec. 7. He shall have power to grant reprieves for offences against the state, except in cases of impeachment, and to grant par- dons, or to remit any part of a sentence, in all cases after conviction, except for treason or murder, in which cases he may respite the ex- ecution, and make report thereof to the next General Assembly, by whom a pardon may be granted. Sec. 8. He shall issue writs of election to fill up all vacancies that happen in the Senate, or House of Representatives, and shall have power to convene the General Assembly on extraordinary occasions ; and shall give them from time to time information of the state of the republic, and recommend to their consideration such measures as he may deem necessary and expedient. Sec. 9. When any office shall become vacant by death, resignation, or otherwise, the governor shall have power to fill such vacancy; and persons so appointed shall continue in office until a successor is appointed agreeably to the mode pointed out by this constitution, or by the legislature. Sec. 10. He shall have the revision of all bills passed by both houses, before the same shall become laws, but two-thirds of both houses may pass a law notwithstanding his dissent; and if any bill should not be returned by the governor within five days after it hath been presented to him, the same shall be a law unless the General As- sembly, by their adjournment, shall prevent its return. OP GEORGIA. 439 Sec. 11. Every vote, resolution, or order, to which the concur- rence of both houses may be necessary, except on a question of ad- journment, shall be presented to the governor ; and before it shall take effect, be approved by him, or being disapproved, may be repass- ed by two-thirds of both houses, according to the rules and limita- tions prescribed in case of a bill. Sec. 12. There shall be a secretary of the state, a treasurer, and surveyor-general, appointed in the same manner, and at the same session of the legislature ; and they shall hold their offices for the like period as the governor, and shall have a competent salary, including such emoluments as may be established by law, which shall not be increased or diminished during the period for which they shall have been elected. Sec. 13. The great seal of the state shall be deposited in the of- fice of the secretary of state, and shall not be affixed to any instru- ment of writing, but by order of the governor or General Assembly ; and the General Assembly shall, at their first session after the rising of this convention, cause the great seal to be altered by law. Sec. 14. The governor shall have power to appoint his own sec- retaries. ARTICLE III. Sec. 1. The judicial powers of this state shall be vested in a supe- rior, inferior, and justices' courts, and in such other courts as the legislature shall from time to time ordain and establish. The judges of the superior courts shall be elected for the term of three years, and shall continue in office until their successors shall be elected and qualified, removable by the governor on the address of two-thirds of both branches of the General Assembly for that purpose, or by im- peachment and conviction thereon. The superior courts shail have exclusive and final jurisdiction in all criminal cases, (except as relates to people of colour, and fines for neglect of duty and for contempt of court, for violations against road laws, and for obstructing water- courses, which shall be vested in such judicature or tribunal as shall be, or may have been, pointed out by law: and except in all other minor offences committed by free white persons, and which do not subject the offender or offenders to loss of life, limb, or member, or to confinement in the penitentiary; in all such cases, corporation courts, such as now exist, or may hereafter be constituted, in any in- corporaled city, being a seaport town and port of entry, may be vest- ed with jurisdiction, under such rules and regulations as the legisla- ture may hereafter by law direct,) which shall be tried in the county where the crime was committed ; and in all cases respecting titles to land, which shall be tried in the county where the land lies ; and also concurrent jurisdiction in all other civil cases; and shall have power to correct errors in inferior judicatories by writ of certi- orari, as well as errors in the superior courts, and to order new tri- als on proper and legal grounds : Provided, that such new trials shall be determined, and such errors corrected, in the superior court of the county in which such action originated; and the said court shall 440 CONSTITUTION have appellate jurisdiction in such other cases as are or may be point- ed out by law, which shall in no case tend to remove the cause from the county in which the action originated ; and the judges thereof, in all cases of application for new trials or correction of errors, shall en- ter their opinion on the minutes of the court. The inferior courts shall also have concurrent jurisdiction in all civil cases, (except in cases respecting the titles of lands,) which shall be tried in the county wherein the defendant resides ; and in cases of joint obligors, or joint promissors, residing in different counties, the same may be brought in either comity, and a copy of the petition and process served on the party residing out of the county in which the suit may be common- ced, shall be deemed sufficient service, under such rules and regula- lions as the legislature have or may direct. The superior and infe- rior courts shall sit in each county twice in every year, at such stated times as have or may be appointed by the legislature.* * By the act of 1834 the following is proposed as a substitute for the first section of this article, and which, if repassed in 1835, will stand as a part of the constitution in lieu of the foregoing :— " The judicial powers of this state shall be vested in a supreme court for the cor- rection of errors, a superior, inferior, and justices' courts, and in such other courts as the legislature shall from time to time ordain and establish. The supreme court shall consist of three judges, who shall be elected by 'he legislature for such term of years as shall bo prescribed by law, and shall continue in oflice until their successors shall h» elected and qualified ; removable by the governor on the address of two-thirds of both branches of the General Assembly for that purpose, or by impeachment and con\ieti >n thereon. The said court shall have no original jurisdiction, but shall be a court alone for the trial and correction of errors in law and equity from the superior courts <>t the several circuits ; and shall sit at least once a year, at a time to he prescribed bv law, in each of five judicial districts to be hereafter laid off and designated by the legislature fur that purpose, at the most central point in each judicial district, or at such other point in each district as shall by the General Assembly be ordained for the trial and determina- tion of writs of error from the several superior courts included in such judicial districts. And the said court shall at each session in each district dispose of and finally deb rmine each and every case on the docket of such court at the first term after such writ of error brought; and in case the plaintiff in error in any such case shall not be prepared at such first term of said court after error brought to prosecute the same, unless precluded by some providential cause from such prosecution, it shall be stricken from the docket, and the judgment below shall stand affirmed. The judges of the superior courts shall be elected for the term of four years, and shall continue in office until their successors shall be elected and qualified ; removable by the governor on the address of two-thirds of both branches of the General Assembly for that purpose, or by impeachment and eon- viction thereon. The superior courts shall have exclusive jurisdiction in all criminal cases, (except as relates to people of colour, and fines for neglect of duty, and for con- tempt of court, for violations against road laws, and for obstructing water-courses, which shall be vested in such judicature or tribunal as shall he or may have been pointed out by law; and except in all other minor offences committed by free white persons, and which do not subject the offender or offenders to loss of life, limb, or member, or to con- finement in the penitentiary; in all such cases, corporation courts, such as now exist or may hereafter be constituted in any incorporated city, being a seaport town and port of entry, may be vested with jurisdiction under such rules and regulations as the legisla- ture may hereafter by law direct,) which shall be tried in the county where the crime was committed, and in all cases respecting titles to land, which shall be tried in the county where the land lies; and also concurrent jurisdiction in all other civil cases; and shall have power to correct errors in inferior judicatories by writ of certiorari, and to grant new trials in said superior courts on proper and legal grounds; and in all cases Where a new trial shall be allowed, the judge allowing the same shall enter on the minutes of said court his reasons for the same. And the said superior courts shall have appellate jurisdiction in such other cases as may be pointed out by law in cases arising in inferior judicatories, which shall in no case tend to remove the cause from the county in which the action originated." OF GEORGIA. 441 Sec. 2. The judges shall have salaries adequate to their services, established by law, which shall not be increased or diminished during their continuance in office; but shall not receive any other perqui- sites or emoluments whatever, from parties or others, on account of any duty required of them. Sec. 3. There shall be a state's attorney and solicitors appointed by the legislature and commissioned by the governor, who shall hold their offices for the term of three years, unless removed by sentence on impeachment, or by the governor on the address of two-thirds of each branch of the General Assembly. They shall have salaries adequate to their services, established by law, which shall not be increased or diminished during their continuance in office. Sec. 4* The justices of the inferior courts shall be elected by the persons entitled to vote for members of the legislature, in such man- ner as the legislature may by law direct. Sec. 5. The justices of the peace throughout this state, shall be elected by the persons residing in their respective districts, entitled to vote for members of the General Assembly, under such rules and regulations as the legislature may by law direct. Sec. 6. The powers of a court of ordinary or register of probates, shall be vested in the inferior courts of each county, from whose decision there may be an appeal to the superior court, under such restrictions and regulations as the General Assembly may by law direct; but the inferior court shall have power to vest the care of the records and other proceedings thereon, in the clerk, or such other person as they may appoint, and any one or more justices of the said court, with such clerk or other person, may issue citations, and grant temporary letters, in time of vacation, to hold until the next meeting of the said court; and such clerk or other person may grant marriage licenses. Sec. 7. The judges of the superior courts, or any one of them, shall have power to issue writs of mandamus, prohibition, scire facias, and all other writs which may be necessary for carrying their powers fully into effect. Sec. 8. Within five years after the adoption of this constitution, the body of our laws, civil and criminal, shall be revised, digested, and arranged under proper heads, and promulgated in such manner as the legislature may direct; and no person shall be debarred from advocating or defending his cause before any court or tribunal, either by himself or counsel, or both. Sec. 9. Divorces shall be final and conclusive when the parties shall have obtained the concurrent verdicts of two special juries authorizing a divorce upon legal principles. Sec. 10. The clerks of the superior and inferior courts shall be elected on the same day as pointed out by law for the election of the other county officers. Sec. 11. Sheriffs may be appointed in such manner as the Gen- eral Assembly may by law direct, and shall hold their appointments for the term of two years, unless sooner removed by sentence on impeachment, or by the governor on the address of two-thirds of the k k k 442 CONSTITUTION justices of the inferior court and of the peace in the county; but no person shall be twice elected sheriff within any term of four years; and no county officer after the next election shall be chosen at the time of electing a senator or representative. ARTICLE IV. Sec. 1. The electors of members of the General Assembly shall be citizens and inhabitants of this state, and shall have attained the age of twenty-one years, and have paid all taxes which may have been required of them, and which they have had an opportunity of paying, agreeably to law, for the year preceding the election, and shall have resided six months within the county : Provided, that in case of invasion, and the inhabitants shall be driven from any county, so as to prevent an election therein, such refugee inhabitants, being a majority of the voters of such county, may meet under the direction of any three justices of the peace thereof, in the nearest county, not in a state of alarm, and proceed to an election, without having paid such tax so required of electors, and the persons elected thereat shall be entitled to their seats. Sec. 2. All elections by the General Assembly, shall be by joint ballot of both branches of the legislature ; and when the Senate and House of Representatives unite for the purpose of electing, they shall meet in the representative chamber, and the president of the Senate shall in such cases preside, receive the ballots, and declare the per- son or persons elected. In all elections by the people, the electors shall vote viva voce, until the legislature shall otherwise direct. Sec. 3. The general officers of the militia shall be elected by the General Assembly, and shall be commissioned by the governor. AH other officers of the militia shall be elected in such manner as the legislature may direct, and shall be commissioned by the governor ; and all militia officers now in commission, and those which may be hereafter commissioned, shall hold their commissions during their usual residence within the division, brigade, regiment, battalion, or company to which they belong, unless removed by sentence of a court martial, or by the governor on the address of two-thirds of each branch of tire General Assembly. Sec. 4. All persons appointed by the legislature to fill vacancies, shall continue in office only so long as to complete the time for which their predecessors were appointed. Sec. 5. Freedom of the press and trial by jury, as heretofore used in this state, shall remain inviolate; and no ex post facto law shall be passed. Sec. 6. No person who heretofore hath been, or hereafter may be a collector or holder of public moneys, shall be eligible to any office in this state, until such person shall have accounted for, and paid into the treasury, all sums for which he may be accountable or liable. Sec. 7. The person of a debtor, where there is not a strong pre- sumption of fraud, shall not be detained in prison after delivering Of GEORGIA. 443 bona fide all his estate, real and personal, for the use of his creditors, in such manner as shall be hereafter regulated by law. Sec. 8. Convictions on impeachments, which have heretofore taken place, are hereby released, and persons lying under such convictions, restored to citizenship. Sec. 9. The writ of habeas corpus shall not be suspended, unless when, in case of rebellion or invasion, the public safety may require it. Sec. 10. No person within this state shall, upon any pretence, be deprived of the inestimable privilege of worshipping God in a manner agreeable to his own conscience, nor be compelled to attend any place of worship, contrary to his own faith and judgment, nor shall he ever be obliged to pay tithes, taxes, or any other rate, for the build- ing or repairing any place of worship, or for the maintenance of any minister or ministry contrary to what he believes to be right, or hath voluntarily engaged to do. No one religious society shall ever be established in this state in preference to another, nor shall any person be denied the enjoyment of any civil right merely on account of his religious principles. Sec. 11. There shall be no future importation of slaves into this state from Africa, or any foreign place, after the first day of October next. The legislature shall have no power to pass laws for the eman- cipation of slaves, without the consent of each of their respective owners previous to such emancipation. They shall have no power to prevent emigrants, from either of the United States to this state, from bringing with them such persons as may be deemed slaves by the laws of any one of the United States. Sec. 12. Any person who shall maliciously dismember or deprive a slave of life, shall suffer such punishment as would be inflicted in case the like offence had been committed on a free whits person, and on the like proof, except in case of insurrection by such slave, and unless such death should happen by accident in giving such slave moderate correction. Sec. 13. The arts and sciences shall be promoted in one or more seminaries of learning, and the legislature shall, as soon as con- veniently may be, give such further donations and privileges to those already established as may be necessary to secure the objects of their institution ; and it shall be the dutj? of the General Assembly at their next session to provide effectual measures for the improvement and permanent security of the funds and endowments of such institu- tions. Sec. 14. All civil officers shall continue in the exercise of the du- ties of their several offices during the periods for which they were appointed, or until they shall be superseded by appointments made in conformity to this constitution: and all laws now in force shall con- tinue to operate, so far as they are compatible with this constitution, until repealed : and it shall be the duty of the General Assembly to pass all necessary laws and regulations for carrying this constitution into full effect. Sec. 15. No part of this constitution shall be altered, unless a bill for that purpose, specifying the alterations intended to be made, shall 444 CONSTITUTION OP GEORGIA. have been read three times in the House of Representatives, and three times in the Senate, on three several days in each house, and agreed to by two-thirds of each house respectively ; and when any such bill shall be passed in manner aforesaid, the same shall be published at least six months previous to the next ensuing annual election for members of the General Assembly: and if such alterations, or any of them so proposed, shall be agreed to in their first session thereafter by two-thirds of each branch of the General Assembly, after the same shall have been read three times on three separate days in each re- spective house, then, and not otherwise, the same shall become a part of this constitution. We the underwritten delegates of the people of the state of Georgia, chosen and authorized by them to revise, alter, or amend the pow- ers and principles of their government, do declare, ordain, and ratify the several articles and sections contained in the six pages hereunto prefixed, as the constitution of this state ; and the same shall be in operation from the date hereof. In testimony whereof, we, and each of us respectively, have hereunto set our hands, at Louisville, the seat of government, this thirtieth day of May, in the year of our Lord one thousand seven hundred and ninety-eight, and in the twenty-second year of the indepen- dence of the United States of America; and have caused the 'great seal of the state to be affixed thereto. INDEX. A ACCESSORY, defined, 14; before the fact, ib.; after the fact, ib.; rules of common law concerning, ib. (n.) ACCOUNTS, how proven in justices' courts, 170; books of merchants, when admitted as evidence, 133. ADMINISTRATION, application for, to whom made, 250; not to be granted to any but citizens, ib.; rules to be observed in granting, 250, 273; where to be granted, 273; not to be granted pending appeals, 269 ; when and how to be granted to creditors, 251; when to be granted with the will an» nexed, 266, 273 ; administration de bonis non, 266. ADMINISTRATOR, (See Executors and Administrators,) shall take oath, 253 ; and give bond, ib.; liability of securities of, 254 ; shall not be sued within twelve months, 258 ; how suits are to proceed that were begun in the lifetime of the intestate, ib.; shall give notice to creditors, ib.; the effect of such notice, ib.; in their own wrong, how chargeable, 259; duty in making appraisements, 252 ; how far chargeable thereon, 252, 253; how debts shall be paid, 251, 252, 253 ; what debts shall be sued for, 251. ADMINISTRATOR with the will annexed, shall take an oath and give bond, 273, 276. ADULTERY and Fornication, how punished, 57; on indictment for, what must be proved, ib. (n.;) dower of the wife forfeited by, ib.; how punished in England, ib. AFFIRMATION, shall be valid as on oath, 382 ; how to be made, ib. AFFRAY, definition and punishment, 51; what acts (words will not) amount to an affray, ib. (n.;) how distinguished from a riot, ib.; how to be suppressed, ib. (n.) AIDING an escape, (See Escape,) what shall constitute aiding in criminal matters, 13. ANSWER, what it shall contain, 147. APOTHECARY, selling without license, how dealt with, 59, 60. APPEALS, from decisions of the court of ordinary, 269; in justices' courts, 168 ; in other courts, 146, 149, 296. APPRAISEMENTS, when to be made, 252, 253 ; may be given in evi- dence to prove the value of property, 253; but shall not be 44G INDEX. binding, 252, 253 ; shall be returned by guardians for idiots, &c., 255. APPRAISERS, shall be respectable freeholders, 253 ; their oath, 252. APPRENTICE, how to be educated and treated, 277, 278 ; may be re- moved from the custody of master and bound elsewhere, ib. 5 doctrine of the common law in relation to apprentices, 278, 279, 280. ARREST, defined, 89; who may be arrested, ib.; some exceptions as to time, place, and circumstances, ib.; grounds of an arrest, 90, 91; causes of suspicion that will justify an arrest, ib.; ar- rest under United States authority, 91; authority and lia- bility of private persons in making arrests, ib.; of a consta- ble, 92; of a sheriff, 93; a coroner, ib.; a justice of the peace, ib.; how an arrest must be made, 93, 94 ; when it may be resisted, 94; when doors may be broken, 94, 95, 96 ; duty of the arresting officer where the party is in cus- tody in a civil suit, 96 ; how far the arresting officer may take the word of the prisoner, ib.; his power and liability in making a second arrest, ib.; when the arresting officer may kill the party, 19 ; when the arrest is made, how the officer shall proceed, 97 ; if no jail in the county, what must be done, ib.; arrest may be avoided, and how, 83. ARSON, definition, 26; degrees and punishment, 26, 27 ; rules of the common law in defining the offence, 26, (n.;) burning one's own house is not arson, proviso, ib. ; an important query, ib. ARRAIGNMENT, prisoner how brought up, 124 ; indictment to be read to the prisoner when arraigned, 123,124; arraignment shall be entered on the indictment, 124; and may be recorded at any time, ib. ASSAULT, defined, 23; what acts make an assault, ib. (n.;) bare as- sault, how punished, 24; what may justify, 130; assault with intent to murder, 24; with intent to rob defined, ib.; how punished, ib.; with intent to spoil clothes, ib.; under colour of office, 46; with intent to commit rape, 23; the effect of proving an actual rape on an indictment for this offence, ib. (n.;) no person shall be convicted of an assault who perpetrates the crime, 129. ATTACHMENTS, (in justices'1 courts, see p. 3, c. 2,) grounds upon which they may issue, 317; form of issuing, 317, 319; how served and returned, 306; may be served on Sabbath in certain cases, 316 ; first served, first satisfied, 310 ; bond of attaching creditor may be sued, and when, ib.; how goods may be replevied, 306, 310, 311 ; replevy bond, ib.; goods not replevied, how disposed of, 306, 307; judgment against garnishee, 307, 308 ; proceedings where property of absent creditors lies in different counties, 308; proceedings where property is claimed by a third person, ib.; land not subject to attachment issuing from another county, ib.; claims to land levied on under attachment, where tried, ib.; claims to property levied on under attachments returnable to jus- tices' courts, where tried, 314, 315; garnishee returning INDEX. 417 property, how it shall be disposed of, 309 ; suits shall not abate by death, how they shall proceed, ib.; when a wit- ness resides out of the county, how his testimony shall be procured, 310 ; judgments on attachments shall not have precedence of other judgments, ib.; suits by attachments, how defended, ib.; defendant may plead set-off, though not due, 312; attachments may issue pending suits, ib.; garnishments may issue pending suits, 312, 313; may issue after judgment, and how, ib.; proceedings against defaulting garnishees, 313 ; money collected, how disposed of, ib.; laws regulating attachments extended to mayors' courts of Augusta and Darien, ib. ATTORNEY AND SOLICITORS GENERAL, their duty in prose- cuting, 123. ATTORNEYS at law, how admitted, sworn, and commissioned, 147,303; shall not attempt to explain after being fully heard, 147; shall enter acknowledgment where money is received in satisfaction of judgment, 'penally, ib.; how their writs shall be indorsed, 148 ; shall not be taken as bail or security, ib.; no person debarred from making his own defence, 303; attorneys shall pay cost in certain cases, ib.; retaining clients' money, may be struck from the list, ib.; and shall pay twenty per cent, on money not promptly paid over, 196 ; contracts for fees void where they neglect their duty, 303, 304 ; their tax fee, 304. ATTORNEYS in fact, sales made by, valid, 304; form of a letter of at- torney, ib. B BAIL, criminal, definition, 105 ; distinction between bail and mainprise, 98; who are bailable, 105; who are not, 105, 106; power of the judges of the superior court to bail, 106, 120; laws of United States respecting bail, 106, 112; in what cases jus- tices of the peace may, or may not, let to bail, 106 ; in what cases bail may not be refused, ib.; in what cases two justices should sit, 107; the sufficiency of bail, 103, 107; conse- quence of taking insufficient bail, ib.; party may be released by giving bail after commitment, ib.; refusing bail when it ought to be allowed, 107, 108 ; the party bailed is still, in supposition of law, in custody of the bail—hence the power of the bail to deliver the prisoner to jail at any time, 108; bail shall not be given more than twice, ib.; proceedings against bail, 111, 112; sheriff may, under bail process, pursue and arrest in another county, 204 ; and a constable may in another district, 190; bail bonds how taken, 197, 202; how bail may be discharged in certain cases, 148. BAIL in civil cases, the nature of bail in civil cases, 109, 110; mode of procuring, 108, 109 ; proceedings of plaintiff against bail, 109, 110; the issue of scire facias regulated, ib; may be required pending suit, 110; proceedings in such cases, 110, 111; may be required by attorneys, 112; may be served on Sabbath in certain cases, 316 ; having paid the debt of principal may control execution, 342. 448 INDEX# BAIL, in Justice's Court, 171. BAKER, Brewer, &c., selling unwholesome provisions, 50. BANKS, how taxed, 242, 243; subject to garnishment, 316. BANK OFFICERS, duty and liability of, in management of banking in- stitutions, 37, 38. BANK STOCK, liable to execution, 205. BARRATRY, definition and punishment, 49; how the indictment may be laid for this offence, ib. (n.;) rule of evidence, ib.; barrators may be bound to the good behaviour, ib. BASTARDY, who shall be deemed bastards, 319; proceedings against putative fathers and mothers, 62, and 320, 321 ; duty of inferior court in suing bonds given to maintain bastard chil- dren, 320 ; bastards ought to .be bound out, 278; mother accused of murder of bastard and acquitted, may be found guilty of concealment if the facts warrant it, 21. BATTERY, definition and punishment, 24 ; what shall justify, 24, 130 j the legal acceptation of the term " to beat," 24. BEACONS and Buoys, destruction of, how punished, 67. BEHAVIOUR, surety for, (See Warrants.) BENEFIT of clergy abolished, 126. BESTIALITY, definition and punishment, 23. BETTING, (See Gaming.) BIGAMY, (See Polygamy.) BOAT OWNER, (See Slaves.) BONDS, of officers, (See the respective officers,) in claim cases, how re- coverable, 201. BRIBERY, definition of by statute, 44 ; by the common law, 45 ; various kinds, punishment of persons bribing and bribed, ib.; what completes the offence, 44 ; who may be a witness, ib.; bribery in elections, 45; and see Elections. Bridges, (See Roads, &c.) BURGLARY, may be committed in the day or night, 27 ; punishment, 28; rules of the common law as to what does, and what does not amount to burglary, 27. BUTCHER, or other person selling diseased meat or other unwholesome provisions, 59. BUYING stolen goods, 47; how proven, 48 ; defendant may disprove the guilt of principal, ib.; buying a vote, 63. c CASTRATION, punished with death, 22. CATTLE, (See Marks and Brands.) CATTLE-STEALING, (See Larceny.) CERTIORARI, the nature and power of the writ, 324; how and when allowed, 324, 325; the effect of the writ, 325; how the return shall be made, 325, 326 ; forms of the petition, writ, &c.f 326, 327 5 rules of the superior court concerning, 148. index. 449 CHALLENGE, punishment for sending and accepting, 51, 52 ; carrying the same knowingly, 52 ; of jurors, 224-227. CHEATING, various practices denominated cheating, and how punished, 64, 65, 66 ; rules of the common law concerning the nature of the offence, 65. CLAIMS, (See Attachments,) to property intended to be sold by execu- tors or administrators, how to be filed, served, and trans- mitted, 264, 265 ; duty of the clerk of the court of ordinary therein, ib. ; to property levied on by sheriff, how disposed of, 199,201 ; to slaves levied on by execution from justice's court, how returned and tried, 201 ; other property, 191 ; to property levied on as the property of defaulting tax col- lectors, how tried, 242 ; to property levied on under attach- ment returnable to justice's court, how returned and tried, 173, 174, 175; rules of court respecting trial of claims, 148, 149. CLERGY, benefit of, abolished in Georgia, 126. CLERKS, Court of Ordinary, shall be known only as such, 250 ; how and when elected, 280 ; how removable, ib. and 207 ; shall give bond, ib. ; and take an oath, 249 ; vacancies how filled, 280 ; may open and adjourn the court in certain cases, 206; shall keep a docket of the names of persons liable to make returns, 267, 281 ; shall record proceedings of the court, and when, 292, 293 ; duty upon application for administration, 250 ; may grant temporary letters of ad- ministration, ib. ; shall record births, 280; such record made evidence, 281 ; shall record bonds of administrators and guardians, ib.; may grant marriage licenses, ib. ; and record them, ib.; may be appointed guardian in certain cases, 270 ; may be appointed administrator in certain cases, 271 ; where they shall keep their offices, 297 ; shall deliver records to their successor, 45, 46 ; liable to be ruled after retiring from office, 204. CLERKS, Superior and Inferior Courts, how and when elected, 193; within what time to apply for their commission, 298; must qualify, and within what time, 291 ; must give bond and take an oath, 292 ; may appoint a deputy, ib.; where to keep their office, 297; shall record proceedings in civil cases, and when, 292, 293 ; penalty, ib. ; signing the min- utes, 292 ; duty in issuing process, 293, 296 ; subpoenas, 293 ; and in summoning juries, ib. : shall pay over county funds, and to whom, 295 ; shall lay before the inferior court an account of county funds, &c., 294 ; shall keep subpoena and criminal dockets, 297; liable to pay twenty per cent, on money collected and not paid over, 196 ; shall keep their records in well-bound books, 298 ; various duties under rules of court, 149 ; shall deliver over their records, &c., upon going out of office, 298 ; penalty for default, 45, 46 ; how removed from office, 207 ; may be ruled after out of office, 204. CLERK, Superior Court, shall record deeds, 294 ; but not deed for Ell 450 INDEX. manumitting slaves, ib. ; shall record receipts given for county funds, 295 ; penalty for omitting certain duties, ib.; shall adjourn court in certain cases, and how, 298 ; duty in drawing and selecting jurors, 220, 221 ; shall note the ap- pearance and default of jurors, 221 ; shall record receipts of final settlements of executors, administrators, and guar- dians, 270 ; fee for such services, 271 ; shall inform the keeper of the penitentiary of convictions, 126 ; shall pay over fines, and to whom, 125, 126. CLERKS, Inferior Court, shall receipt for money paid to them for the county, 295 ; shall lay before the grand jury statement of the county funds, and when, 295, 296 ; books showing state of county funds may be inspected, 296 ; clerk's fee for such inspection, ib.; shall keep account with county treasurer, 230 ; duty in receiving tax returns, 237 ; may adjourn court in certain cases, and how, 298 ; duty in rela- tion to registering the names of free persons of colour, 353, 356; shall claim estrays levied on under execution, 347. CODICIL, how made, 274. COMMISSIONERS to divided estates, their dutiel, their oath, 260. COMMISSIONS, how divided among executors and administrators, 269. COMMITMENT, party not offering bail may be committed, 101; to what jail the prisoner must be sent, 102 ; what the com- mitment must contain, and how framed, ib.; defect of legal precision in the commitment shall not justify a discharge of the prisoner, 102, 120 ; the prosecutor must give bond to prosecute before commitment, 103; magistrate may bind over witness, ib.; and commit them in case of refusal of bail, ib. COMMON BARRATRY, (See Barratry.) COMMUTATION of punishment, when allowed, 127 and 414. COMPOUNDING felony, how punished, 48 ; other offences, ib. CONCEALING, (See Harbouring and Concealing,) woman concealing death of child, 21; concealing crime generally, 14, 76,77 ; feme covert concealing her husband, not punishable, and why, 14. CONFESSING judgment, ^-c. unlawfully, how punished, 46. CONFESSION, how to be taken, 138. CONSPIRACY, definition and punishment, 48 ; what proofs necessary on indictment for, ib.; must be by two persons at least, ib. CONSENT, must be in writing, 151. CONSTABLE, how and when elected, 189; vacancies how filled, ib.; shall take an oath and give bond, ib.; bond how sued, ib.; the proper officer of justice's court, 190 ; shall summon all juries for justice's court, ib.; how a civil warrant or sum- mons shall be served, ib.; how served when the justice or constable is a party, ib.; authority and liability in making arrests, 92; may execute bail or criminal process out of his district in certain cases, 190 ; shall not levy on negroes or real estate when there is any other property, 191; when index. 451 such levy is made, what to be done, ib.; shall levy attach- ments and how, ib.; slaves levied on and claimed, how and where returned and tried, ib.; duty generally, and penalty for neglect, ib.; how proceeded against for neglecting to pay over money, 191, 192 ; shall be compensated for car- rying property to place of sale, 190, 191; shall notify the clerk of the inferior court upon levying upon an estray, 347; refusing to receive a prisoner, 47 ; liability of, in general, 195; permitting any escape, 47; not paying over money, shall pay twenty per cent., 196; duty in levying on bank stock, 205 ; on personal property under tax execution, 206 ; fees, 102 ; additional fees in cases of coroner's inquest, 216. CONTEMPTS, powers of courts to punish for, 74 ; justices' courts, 171. CONTINUANCE, rules of court relative to, 151. CONTRACTS, implications of the law in relation to, 59. CONVICTS, how to be conveyed to the penitentiary, 126; insanity of convicts after trial, execution of sentence delayed, 127, 128 ; pregnant females, execution delayed, 128. CORONER, how elected, commissioned, and removed from office, 211; how sworn, 213; shall give bond, 216 ; maybe ruled after going out of office, 204 ; shall execute his office in person, 211; when to be sent for, 211, 213; manner of issuing precept for summoning the jury, 213, 214; body may be dug up, and within what time, 211, 212; where the inqui- sition may be taken, 212 ; how far the coroner may inquire, 212, 215 ; such inquiry must be public, 212; may amend his inquisition, ib.; inquisition may be traversed, 213; when and how to be returned, 215; coroner acting cor- ruptly, what shall be done, 212 ; shall charge the jury, 213, 215 ; shall take inquests of deaths in prisons, unless, &c., 213 ; shall return defaulting constables, 214 ; how jurors shall be sworn, their oath, ib.; may command the attend- ance of witnesses, their oath, 215 ; shall put the evidence in writing, bind over witnesses, and certify the same, ib.; may be fined for neglect, 216; shall summon jurors in su- perior or inferior courts when the sheriff is disqualified, 221; may arrest felons, 93 ; liability in not paying over money, 196 ; fees, 216, 243. COST, property of persons arrested on criminal charge to be secured to pay cost, 144 ; all property of such liable for cost in case of their conviction, ib.; mode of settling cost in such cases, 144 and 145 ; who shall pay where the party is discharged, 101 and 123 ; on verdicts under thirty dollars shall not ex- ceed the cost in justice's court, 169 ; who shall pay cost in justices' courts, ib.; when allowed on younger judgments, 205 ; how recovered by plaintiffs in certiorari, 176; mode of taxing and collecting cost altered, 298. COUNTERFEITING, (See Forgery and Counterfeiting,) counterfeiting any brand or mark required by law, 65; punishment for making counterfeit coin, 40 ; how far it must resemble the real coin to constitute the offence, ib. 452 index. COUNTS, form, of, in indictments, 122. COUNTY FUND, shall be paid to county treasurer, 230. COUNTY TREASURER, when appointed, and by whom, 230 ; shall give bond and take an oath, ib.; his duties generally, 230, 231 ; his fees, 231. COURT, how to exercise the discretion given by the penal code, 126 and 74 ; shall make special reports to the governor of defects, &c., in the penal code, 126 and 127; shall give in charge to the grand jury at the opening of each term the acts con- cerning gambling, 58 ; and the law against trading with slaves, 73 ; duty where sentence has not been executed at the appointed time, 128. COURTHOUSES, how to be built and repaired, 329. CRIME, defined, 11 ; done by misfortune or accident, not criminal, 13 ; intention, how manifested, 11; who are incapable of com- mitting crime, 11, 12; persons advising, &c., such to com- mit crime, how punished, 12; feme covert, acting under threat of her husband, not punishable, husband's punish- ment in such case, 12 ; slaves committing crimes not cap- ital by coercion, not liable, liability of the person coercing, 13 ; other persons committing crimes under threats, ib.; drunkenness no excuse for crime, ib. ; danger of concealing crime, 76 and 77 ; capital crime shall not be atoned for by substitute, 210. D DEAD bodies, removal of illegally, how punished, 62. DEBTS, order in which executors and administrators shall discharge debts, 258. DEEDS, how proven and recorded, 334, 335 ; where to be recorded, 294 ; deeds of manumission shall not be recorded by any public officer, ib.; deeds recorded, though not within the time prescribed by law, shall, if duly proven, be received in evi- dence, 334, 335; deeds not be denied but on oath, 133; copies of lost deeds may be read in evidence, 334, 335 ; deeds, (other than mortgages,) when recorded, 334 ; wit- ness to deeds must be produced—proviso, 130, 131 ; vari- ous opinions and decisions respecting the proof and records of deeds, 335 ; destruction of deeds, &c., how punished, 66 ; form of deeds, 335. DEFENCE, self, and relations, 19 ; of habitation, 20. DETAINER, (See Forcible Entry and Detainer.) DISCRETION, the court in exercising it, to pay regard to the recommend- ation of the jury, 126 ; of the court in commutation of punishment, 127; general limitation of the court's discre- tion, 74. DISFIGURING the privates, 22. DISFRANCHISEMENT, penitentiary convicts disfranchised, 129. DISTRIBUTION, application for, where made, 260 ; statutes regulating index. 453 distribution and descent, 260, 261, 262 ; mode of making distribution—duty of commissioners, 260 ; distributee shall give a refunding bond, ib.; husband shall enjoy wife's whole estate without distribution, 262 ; and vice versa, ib. DISTURBING the peace, 50. DOCKET, rules of court respecting, 151, 152; sheriff shall keep execu- tion docket, 206 ; docket of the names of persons liable to make returns to the court of ordinary, 267. DOCUMENTS, offences relative to, 45, 46. DOWER, (See Distribution,) of what dower shall consist, 338, 339; dower restricted, 340 ; election of dower, 339 ; dower for- feited by adultery, 57 ; form of a petition for dower, 340 ; mode of assigning dower, 339, 340. DRUNKENNESS, no excuse for crime—proviso, 13. DUELLING, how punished, 52 ; public officers having knowledge of an intended duel and not endeavouring to prevent it, how pun- ished, ib. DURESS, by jailer, 45; (and See Jailer.') E EAVES-DROPPERS, adjudged to be nuisances, and how punished at common law, 62. ELECTIONS, general, ascertained by ballot, 361 ; when held, ib.; hours of opening and closing polls, ib.; what officers may attend, ib.; who may superintend, ib.; how to be conducted, 362 ; qualification and liability of voters, ib.; duty of managers in making and transmitting returns, 363; responsibility of superintendents, 365 ; elegibility and liability of candidates, ib. ; mode of contesting seats in the General Assembly, 366. For election of county officers, See their respective titles. EMBRACERY defined—how punished, 49. ENDORSERS, (See Securities,) placed on a footing with securities, 341 ; notice not necessary to bind them—proviso, ib.; may be sued in the same action with the principal, ib. ; may re- quire the holder to proceed to collect—effect of such require- ment, ib. ENGROSSING, offence of, abolished, 64 ; nature of the offence, ib. ENTRY, (See Forcible Entry and Detainer.) EQUITY, rules of practice in, 150, 151. ESCAPE, aiding escape of prisoner from jail, how punished, 46, 47; from custody of officer, 47 ; of convict f*om penitentiary, ib. ; penitentiary officer permitting, ib.; how the officer having custody may be charged with an escape, 209 ; when the party escaping may be lawfully killed, 96, 97; convicts escaping from the penitentiary, where tried, 126. ESTATES, real and personal, on the same footing as to distribution, 250. 260,261; laws regulating distribution and descent of es- tates, 202, 203; may be sold under order of the court of ordinary, and how, 263 ; mode of dividing estates, 260. 454 INDEX. ESTRAYS, what animals may be taken up, and how tolled, 343 ; duty and liability of the taker up, 343, 344, 345, 346, 347 ; his compensation, 346, 347 ; duty and liability of the justice of the peace, 343, 344, 345, 346, 347; his commissions on sales, 346'; his fees, ib.; clerk's duty and liability, 344, 345, 346, 347; his fees, 345, 347; sale of estray horses, &c., 345: of neat cattle, ib.; proceeds, how disposed of, 330, 346 ; how expenses are to be paid, 345 ; privileges of the owner, 346. EVIDENCE, (See Witnesses, Interrogatories, and Justices' Courts,) generally, the party making the affirmative allegation is re- quired to prove it, 130 ; of the nature and degree of evi- dence, 130, 131; hearsay, 131 ; evidence of deceased per- sons, ib.; admissions and confessions, ib.; presumptive evi- dence, 131, 132 ; records, 132 ; when verdicts become evi- dence, ib.; competency and incompetency of witnesses, 136, 137; person who has betted with another shall be com- pelled to give evidence, his confessions not to be given in evidence against him, 58. EVIDENCE.—In civil actions:— Concerning the production of original deeds, 132 ; courts may compel the production of testimony, 133, 135, 136; proof of note of hand, 133 ; books of merchants, when ad- mitted as evidence, ib.; attestation of public officers, ib.; of public notaries, 134 ; laws U. S. respecting admission of evidence from one state to another, 134, 135. In criminal cases:— Opprobrious words may be given in evidence in justification of assault, or assault and battery, 130; what degree of evi- dence necessary on indictments for perjury, 44 ; what on indictments for buying stolen goods, 47; what for barratry, 49; what for polygamy, 56 ; in cases of conviction for felony, evidence to be recorded, 125 ; plea of " guilty" not to be given in evidence against prisoner who may after- ward retract, 123, 124. EXAMINATION, when the examination ought to be taken. 98 ; how to be conducted, 99, 100 ; must be put in writing within two days, 98, 99 ; when taken, how to be disposed of by the magistrate, 101 ; the English statutes regulating examina- tions, 98 ; powers of the magistrate, 99, 100 ; the examina- tion of the prisoner, how taken, the effect of it, 100 ; the party may be verbally remanded pending the examination, y8 ; the discharge of the prisoner, 101; who shall pay the cost, ib.; on return of warrant to search for stolen goods, what to be done, ib. EXCEPTIONS to the form of the indictment, when to be made, 122 ; rule of court respecting, 152. EXCITING insurrection of slaves, 15. EXECUTION of sentence of death shall be by hanging publicly, 126 ; when it may be delayed and reordered, 127, 128 ; when execution has not been done according to judgment, what must be done, 128 ; judge to fix the time and place of exe- INDEX. 455 eution, 128 ; when to issue against bail in civil cases, 109 ; how issued and directed, 296 ; may be stayed, and how, ib.; may issue against either the property or the body, 198 ; when against the body, may be returned, 199 ; how they shall bind property, 296, 297 ; may be transferred, 199 ; issuing illegally, what shall be done, 200; which shall be first satisfied, 296,297; when paid by securities, what done, 297, 199 ; paid off, shall not be again collected, though kept open, 199 ; levied on property that is claimed, what shall be done, ib.; form of, injustice's court, 185. EXECUTORS, what, and how appointed, 276 ; how qualified and within what time, 272 ; may be compelled to give security in cer- tain cases, 2(36 ; a debtor being appointed executor, the debt not extinguished, 273 ; shall be entitled to no bene- ficial interest other than their commission, ib.; may be compelled in courts of equity to disclose transactions be- tween themselves, 262. EXECUTORS AND ADMINISTRATORS, shall show the appraisers all the goods and make an inventory, 252 ; shall not take goods at the appraised value, ib. ; how far they are charge- able, ib. ; in their own wrong, how chargeable, 259 ; bonds of, to be recorded, and where, 281 ; securities of, may be sued in the same action, 254 ; proceedings of, in prosecuting suits commenced in the lifetime of their testator or intestate, 258 ; shall make oath to plea denying evidence of debt, 152; shall not be sued within twelve months, 258; shall give notice to creditors, the effect of such notice, ib.; shall discharge debts according to dignity, 238, 258, 259; how they shall bury their testator or intestate, 258; shall make annual returns,'260 ; may sell real estate and slaves under order of court, 263 ; may be directed by the court to make titles, and how, 265, 266 ; securities of, how relieved, 266, 267; waste and mismanagement of, how remedied, 267; insolvency of securities, how remedied, ib.; what shall be their commissions, and how apportioned, 268, 269 ; may sue for additional compensation, 269 ; removing to another county, may remove the record and make their returns in the county of their residence, ib. ; final receipts of, how to be attested and recorded, 270; copy may be received in evidence, 271 ; may be discharged when their administra- tions are completed, and how, 270. EXHUMATION, illegal, how punished, 62. EXTORTION, what, and how punished, 50; sending threatening letter for purposes of extortion, 49, 50. F FACTOR, commission merchant, &c., converting goods, &c., 36. FALSE imprisonment, definition, 24 ; punishment, 25; rules of the com- mon law as to what circumstances will, and what will not constitute the offence, 24, 25 ; what must be proved by the prosecutor, and what by the defendant, ib. 456 INDEX. FALSE personification of another, and obtaining goods, &c. thereby, 65 , in answering interrogatories, &c. &c., 66. FALSE representation of one's credit, and obtaining security, &c. there- by, 66. FALSE swearing, defined, 43 ; punishment, ib. FEES of justices of the peace, 167 ; of constable, 192 ; of sheriff, 207 ; of jailer, 211 ; of coroner, 216 ; of jurors, 227 ; of receiv- ers of tax returns, 233; of tax collectors, 244; of clerk court of ordinary, 290 ; of clerk superior and inferior courts, 299, 300 ; of attorneys, 304 ; of executors, administrators, and guardians, 268, 269 ; laws regulating the taking of fees by public officers, 50, 301. FELONY defined, 13. FENCES, what shall be a lawful fence, 348; stock shall not be hurt for breaking into an enclosure not lawfully fenced, 348, 349 ; maliciously setting fire to, or burning a fence, how punished, 67. FERRIES, (See Roads, Bridges, and Ferries.) FI. FA. (See Execution.) FINES inflicted by the court, when to be paid, 126. FIREWORKS, making, selling, or throwing in the streets, indictable at common law, 62. FORCIBLE entry and detainer, defined, 54 ; remedy for these offences, 55 ; punishment, 54 ; rules of law as to what shall consti- tute these offences, ib. FORESTALLING, offence of, abolished, 64 ; nature of the offence, ib. FORGERY and counterfeiting, (See Counterfeiting,) forging or counler- feiting any public document, 39; any other document, 39, 40, 41, 42 ; the great seal of state or any other corpo- rate seal, 42 ; altering, 41, 42 ; paying away, ib. ; having in possession counterfeit notes, &.c. 41 ; having in posses- sion machinery for counterfeiting, ib. ; drawing or accept- ing a bill, &,c. in a fictitious name, 42; signing his own name and representing himself to be another person of that name, ib.; obtaining money, goods, &c., by counterfeit let- ter, &c. ib.; rules of common law as to what shall be deemed forgery, 39, 40. FORMS. Apprentice—The indenture, 289 The master's bond, ------ ib. Attachments—The oath - - - - . . - 317 The bond 318 The attachment ------- ib. Summons of garnishment - 319 The levy - -- -- -- -ib. The advertisement ------ ib. Attorney—Attorney's commission - - . _ . -147 Power of attorney - 394 Bail—Affidavit to obtain a bail warrant _ _ . - 117 INDEX. 457 Bail bond in civil cases - . _ . - 118 Bail bond in criminal cases 117 Bastardy—Voluntary examination of a woman with child of a bas- tard - - - - - - - -321 Examination after the birth - - - - - ib. Warrant to bring one suspected to be with child of a bastard, before a justice - - - - - ib. Warrant against the reputed father ... 322 Recognisance to appear - - - - - ib. Mittimus - -- -- -- - 323 Bond of indemnity - - - - - - ib. Certiorari—Petition for ------- 326 The oath - ib. The certificate ------- 327 The writ ----- - - ib. The return ib. Claims—Affidavit claiming property levied on - - - 186 Bond for the forthcoming of property when the claim- ant wishes to take or keep possession - - ib. Affidavit to obtain a warrant for the restoration of the possession of personal property - - - - 187 The warrant in such case - - - - - ib. The bond of the person to whom possession is given - 188 The commitment, where the defendant refuses to pro- duce the property 186 The oath of a person commencing suit for the recov- ery of personal property, to compel the defendant to give security for the forthcoming of the same at the termination of the suit ----- 208 The bond in such case - - - - - ib. Commitment—Of any criminal - - - • - -112 Deed—Form of a deed 335 Deed of mortgage 337 Bill of sale for personals ----- 333 Demand—Form of a demand upon officer to pay over money - 302 Dower—Petition for dower 340 Relinquishment of dower 336 Election—Certificate to accompany consolidated returns - - 364 Certificate to accompany other returns - - - ib. The directions of returns - - - - - ib. Examination—Of a person accused of any criminal matter - 112 Information of a witness ib. Execution—Against the property - - - - - -301 Against the body - - - - - - ib. In justices' courts -185 Executors and Administrators—Administrator's bond - - 282 Letters of administration - 283 Bond of administrator and will annexed - - 284 Letters testamentary ib. Warrant of appraisement 286 Inventory and appraisement- - - - - ib. Account of sales - - - - - - -287 Forms of returns of accounts current - 288 m m m 458 index. Receipt for a legacy ...... 289 Guardians—Bond of guardian ...... 285 Letters of guardianship - - - - - - ib. Insolvent Debtors—Notice to creditors ..... 372 Bond where a person is taken with ca. sa. - - ib. Interrogatories—Form of commission - - - - - 150 Directions for executing ... 141 to 143 In justice's court ...... 184,185 Marriage—Form of ceremony 290 Mittimus—For want of surety for good behaviour - - - 115 For want of surety for the peace .... H6 For one charged as the father of a bastard, and who fails to comply with the law .... 323 For one charged with any criminal matter - - 112 Mortgage—Deed of mortgage ...... 337 Recognisance—To prosecute and give evidence - - - 113 Of a witness to appear and give evidence - - 114 Of a witness for the state - - - - - ib. Without securities - - - - - -115 For the peace and good behaviour - - - - ib. Upon an appeal - - - - - - -146 Rent—Proceedings against a tenant that holds over his lease 390, 391 Subpoena—For a witness - - - - - - -184 Duces tecum - - - - - - -143 Supersedeas—Form of a supersedeas 115 Testimony—Petition to take testimony by commission de bene esse ....... - 143 The affidavit ib. Warrants—Oath to obtain warrant in any criminal matter - - 83 Warrant to apprehend a burglar - - - - ib. person charged with rape - - 84 " " " larceny - - ib. " " " arson - - 85 •" " " cheating - ib. " " " vagrancy - ib. to apprehend a person who has made an escape 86 Search-warrant ------- ib. Oath of one that craves surety of the peace - - 87 Warrant for the good behaviour - - - - ib. For peace or good behaviour - - - - - 88 Warrant for a witness ------ ib. FREE PERSONS OF COLOUR, trial of, (See Trial of Slaves, &c.,) shall net be sold into slavery, 359 ; being claimed, may sue for their freedom, and how, 349; the effect of such suit, ib.; duty of the guardian pending the suit, 350;. may be bound out in certain cases, ib.; how such apprentice shall be used, ib.; remedy against master for ill usage, ib.; may have guardians appointed, and how, ib.; guardian shall give bond—his compensation, 351 ; shall not be credited without a ticket from guardian, 359 ; guardian not person- ally liable for debts of his ward, and may resign at any time, 350 ; shall be liable to do public duty, 354 ; shall INDEX. 459 not hold real estate, ib.; shall have their names registered, and how, 353, 356; neglecting to do so, shall not remain in the state, 354 ; punishment for transferring certificate of registry of freedom, 356 ; carrying them out of the state without such certificate, how punished, ib.; provision re- specting minors, ib. ; proceedings against free persons of colour illegally coming into the state, 352 ; respecting the arrival of coloured seamen, 357, 358 ; vessels arriving in this state, them on board shall perform quarantine, 357, 358, 359 ; regulations in such cases, 358, 359; shall not use or carry firearms, 360 ; proceedings in such cases, ib.; prohibited from preaching but on certain conditions, 359, 360; shall not be taught to read and write, or employed to transact business requiring such knowledge, 72, 73 ; pro- ceedings and suits respecting free persons of colour, where cognizable, 355, 356; duty of the justices in such cases, 355 ; powers and duty of the superior court in such cases, 355, 356; jurisdiction of city councils and other corporate town authorities, 359 ; how the courts shall construe the law respecting, 356 ; warrants issued against free persons of colour, how to be returned, ib. Gr GAMING, keeping gaming houses or rooms, how punished, 58 ; keeping or using faro-table, &c., ib.; punishment for playing or betting, ib. ; officer authorized to break open room where he suspects gambling, 59 ; duty of the judge of the supe- rior court to give in charge to the grand jury the laws rela- tive to gambling, 58. GARNISHMENT, (See Attachment,) how served and answered to, 306, 314 ; applicants for, shall give bond, &c., as in cases of attachment, 314 ; garnishee shall not be compelled to an- swer out of his county, 309 ; how served and returned, where defendant resides out of the county, 314 ; when he shall answer, and how garnishment may be dissolved, 314, 315 ; garnishee returning property, how it shall be disposed of, 309 ; garnishment may issue pending suits, and how, 313 ; after judgment, and how, 312, 313 ; may issue in all cases, 317 ; banks, &c., made subject to garnishment, 316 ; proceedings against defaulting garnishees, 313, 316; judgment against garnishees, 307. GENERAL ELECTIONS, (See Elections.) GRAND JURY, (and See Jurors,) of what number they shall consist, 221 ; how selected and drawn, 221, 222 ; their oath, 224 ; legislative construction of their oath, ib.; secrecy of their proceedings, and the reason for it, 227 ; how far they shall inquire—the nature, degree of evidence they may require, 227, 228 ; witnesses compellable to appear before them and give evidence, 228 ; how they are sworn, 125 and 229 ; the finding of the jury, 229, 230 ; their protection, 229 ; the return of the bill, ib. of defective findings, 230; shall allow or disallow insolvent list of tax collector, 239 ; but 460 index. not after execution has issued against him for default, ib.; shall retain a copy of insolvent list, and how dispose of it, ib. ; may recommend the levy of an extra tax, 241 ; shall view an exhibit of the county funds annually, 231, 295, 296. GUARDIANS, by whom appointed and removed, 250, 255; when and how chosen, 277 ; shall give bond, 256, 257, 270; shall take an oath, 256; bonds where recorded, 281; duty in making appraisement, 255 ; how they may manage the property of their wards, 259; duty and liability in making returns, 260 ; their fees, 268 ; how sales shall be made by them, 263 ; removing to another county, how to remove the record, 269; may have letters dismissory, and how, 270; receipts of final settlements, how to be attested and re- corded, 270, 271. For other matters relating to guardian- ship, See Ordinary Court. H HABEAS CORPUS, various kinds used in England—in Georgia, but two, 118 ; at common law—its nature and use, 119 ; by statute —its extent and use, ib.; who shall issue the writ, and sit upon the return, ib. ; a compendium of the habeas corpus act, with notes, 120 to 122 ; prisoner shall not be dis- charged or admitted to bail by reason of any defect of legal precision in the mittimus, 102 ; power of judges of the su- perior court to let to bail, 120. HABITATION, defence of, authorized, 20; who may lawfully assist— not obliged to retreat, as in cases of self-defence, ib. (n.) HARBOURING and concealing a person guilty of felony, 48 ; (and See Accessory ;) harbouring a slave, 71. HOG-STEALING, definition, and punishment, 32. HOMICIDE, definition and division, 16 ; means of affecting the death im- material, ib. ; murder defined, ib. ; malice express, 17 ; mal- ice implied, ib.; rules of law in determining the offence, 16; what is meant by " unlawful killing'''' and other techni- cal expressions contained in the statute, ib. ; how far the law will impute the guilt of murder to associates or persons present, 14; punishment of murder, 17; when it may be commuted, 127, 414 ; counselling a woman to kill her un- born infant is murder, 21 ; concealing death of child, ib.; manslaughter defined, 17; rules of the common law in de- termining the offence, 17, 18; voluntary manslaughter, 18; rules of the common law respecting, 17,18; punishment, 18 ; involuntary manslaughter, ib. ; rules of the common law respecting, 18, 19; in the commission of an unlawful act, how punished, 19 ; in the commission of a lawful act without proper caution, how punished, ib. ; justifiable homi- cide defined, ib.; rules of the common law respecting, 19, 20 ; what necessary to justify, 20. HORSE-STEALING, (See Larceny.) index. 461 HUSBAND shall enjoy the wife's estate without distribution, 262; and vice versa, ib.; responsibility of. for wife in criminal mat- ters, 12. I IDIOCY, (See Lunacy.) IDIOTS, guilt not imputed to, 11,12; court of ordinary shall appoint guardians for, 255; who shall have the guardianship, ib.; property of, how sold, ib. IDLENESS, when it may subject one to public suspicion and punishment, 60 ; maxim of the Chinese concerning idleness, ib. (n.) ILLEGALITY, rule of court respecting affidavits of partial payment on executions, 152. ILLEGITIMATE CHILDREN, how far placed on a footing with or- phans, 255 ; shall inherit their mother's estate, 262. IMPARLANCE, how allowed in superior courts, 153. IMPRISONMENT, (See False Imprisonment.) INCEST, how punished in Georgia, 56 ; the levitical degrees and com- ment, 56, 57 ; how punished in England, 57. INDECENCY, public, how punished, 58. INDICTMENT, when sufficiently technical—its form, &c., 122 ; ex- ception to its form, when to be made, 122, 123 ; demurrer or plea to, must be in writing, 124 ; prosecutor's name must be endorsed, 123; shall be read to prisoner on his * arraignment, 123, 124 ; for any felony, the prisoner shall have copy of, and list of witnesses furnished, and when, 123 ; persons charged with other offences may demand it, ib.; for cattle-stealing, shall describe the animal, 32 ; what shall be the allegation in indictments for introducing slaves, 70 ; limitation of indictments, 127. INFANTS, age of accountability in criminal matters, 11 ; rule of law in judging of criminality, ib. (n.) ; responsibility in civil mat- ters, 12 ; defrauding by pretending to be of age, 66 ; when permitted to contract marriage, 12 ; when allowed to make a will, ib. ; when and how to choose a guardian, 278. INFERIOR COURT, (See Justices of the Inferior Court and Ordi- nary Court;) jurisdiction in relation to slaves and free per- sons of colour, 355 ; in the trial of slaves, (See Trial of Slaves,) in relation to roads, bridges, and ferries, 309 ; duty in selecting jurors, 221 ; in levying extra tax, 241, 243, 329, 330 ; duty in collection of tax, 204 ; may issue execution against tax collector for county tax, 241 ; how they shall dispose of the one half of the state tax, 329 ; may issue execution against defaulting county treasurers, 231; shall issue execution against defaulting clerks, 294; duty of, in relation to procuring, lettering, and recording schedule of record-books, 292; powers and duty respecting courthouses and jails, 329 ; adjournment, 298. INQUEST, (See Coroner.) , 462 INDEX. INSANE persons not capable of crime, 12 ; the fact of insanity being doubted, how solved, ib. ; insanity after the offence com- mitted, the trial shall be postponed, 129 ; after conviction, the execution shall be suspended, and how, 127. INSOLVENCY of chartered Banks deemed fraudulent, and how pun- ished, 37, 38. INSOLVENT DEBTORS, how to petition for and obtain relief, 367, 371, 372 ; fraud being suggested, how the issue shall be tried, 367, 371 ; sheriff's fee for summoning the jury, 367 ; schedule of property exempt from sale, 372 ; how such property shall be disposed of, ib. ; what shall be done with other property delivered up, 369; property concealed or embezzled, ib.; oath of the debtor, 368; the effect of it, 363, 372 ; person so discharged not to be again arrested, 369 ; what persons are excluded from the privileges of the act, 368 ; debtor being arrested, may give bond for his ap- pearance and be released, 370, 371 ; proceedings where the party appears not, 370; power of the security over the person of the debtor, 371. INSOLVENT LIST, (See Tax Collector and Grand Jury.) INSURRECTION, exciting or attempting to excite, among slaves, 15; insurrectionary papers or pamphlets, 15, 16. INTENTION, necessary ingredient of crime, 11; how manifested, ib.; how otherwise proven, ib. INTEREST, rate of, in Georgia, 373; what contracts shall bear interest, 373, 374 ; mode of calculating, 373 ; interest on judg- ments, 374. INTERROGATORIES, when and how taken, 138, 139 ; to take female testimony, 140,141 ; fortn of commission to take interroga- tory, and rules of the court as to the execution and return, 150,151, and 153 ; directions for executing, 141 ; commis- sion for, how obtained in justice's court, 171 ; forms of executing injustice's court, 184, 185. INTESTACY, courts of ordinary, may, in certain cases, declare a testator intestate, 275. INVEIGLING, (See Larceny.) INVENTORY, when to be made, and what it shall contain, 252. INVOLUNTARY MANSLAUGHTER, (Sbe Homicide.) J JAILER, (See Sheriff,) shall give bond and security, and take an oath, 211 ; liability of, in general, 210 ; shall be punished for re- fusing to receive a felon, 209 ; shall receive prisoners from other counties in certain cases, 198 ; how prisoners should be kept, 209 ; what will amount to an escape, ib. ; escapes permitted by, 210, (See Escape;) shall not fetter prisoners, proviso, 330 ; when a prisoner resisting may be killed, 210 and 19 ; ought to send for coroner when prisoner dies in jail, 211,213; duty in returning the mittimus, 210 ; INDEX. 463 shall not detain prisoner for dieting fees, ib.; disobeying writ of habeas corpus, 121, 210 ; fee bill, 211. JAILS, how built, repaired, and superintended, 329. JOINT TENANTS, how lands of, shall be divided, 263. JUDGE, duty in the confinement of convicts, 126 ; in suspending sentence of death against persons insane, 127; in suspending execu- tion of pregnant females condemned to die, 128 ; in cases when sentence has not been executed pursuant to judgment, ib. ; in passing sentence of death, ib.; may commute the punishment, and when, 127. JUDGMENT, how to be entered up, 156, 296, 374 ; how property is bound by it, 296 ; how transferred, 199 ; judgment ob- tained by perjury void, 44 ; confessing or acknowledging illegally, how punished, 46 ; to be pronounced upon persons pleading guilty, 123, 124. JURISDICTION, offence committed on boundary of two counties, 128 ; where person is wounded or poisoned in one county, and dies in another, 128, 129. JURORS, manner of drawing, &c., 220, 223, 224 ; qualification of, 220, 222 ; how summoned, 221 ; appearance and default, how noted, ib. ; challenge, peremptory, 224 ; principal challenge to the polls, ib. ; for favour, 225 ; voir dire, 129; shall stand over to next court in case of failure of court, 222 ; certain persons excused from serving, ib.; manner of striking special jurors, ib.; their oath, (See Oaths ;) their fees, 327 ; jury made judges of the law and the fact, form of their ver- diet, 124; their discretion in finding their verdict, 129: verdict, how it may be annulled, 49; summoned on coroner's inquest, in default, how fined, 212, 214 ; jurors in justice's court, (See Justice's Court.) JUSTICES OF THE INFERIOR COURT, (See Inferior Court;) when and how elected, 249; vacancies how filled, ib. JUSTICE OF THE PEACE, when and how elected, 161 ; vacancies how filled, 162; his oath, ib.; his office and duty, 161 ; his powers as a conservator of the peace, 161, 164 ; his duty therein, 161, 162; may commit for contempt, 100; the ancient form of his commission, 161 ; his jurisdiction defined, 163, 164, 165 ; the opinion of a distinguished gen- tleman of the bar concerning the justice's jurisdiction, 177; the justice should not act in his own case, 165 ; may super- intend his own acts, ib.; may be compelled to proceed in a cause depending before him, ib. ; ought to record con- victions; ib. ; his protection and liability, 165, 166, 167 ; his official reports not to be gainsaid, 166 ; two-fold capa- city of the justice, 167 ; must pursue the statute strictly, and why, ib. ; may take inquisition where the coroner neglects, 212 ; not paying over money collected by him, shall pay 20 per cent. 196 ; his power and protection in granting warrants, 79 ; in backing warrants, 80 ; in mak- ing arrests, 93 ; may be compelled to act in taking surety of the peace, and how, 81 ; being deceived as to the suffi- ciency of security to recognisance, may afterward demand 464 index. better, 103 ; duty after taking security of tbe peace, 104, 105 ; duty under rule of court in returning recognisances, 153 ; his duty in relation to estrays, (See Estrays :) must inform the clerk of the inferior court when an estray is lev- ied on, 347 ; duty in relation to patrols, (See Slaves and Patrols;) duty on resigning or removing out of the district, 176. JUSTICE'S COURT, the jurisdiction, 108, 169, 172, 176, 177; the several grounds on which suits are usually brought in jus- tice's courts, 178, 179, 180, 181 ; concerning the parties 181 ; the pleadings, ib. ; the evidence, 182; the trial be- fore the justice, 183 ; the trial before the jury ib ; ap- peal allowed, and how, 168 ; trial of the appeal, 168, 169; courts, when and where held, 169 ; proceedings shall be uniform, 172; summons, how served, 169 ; judgment by default, ib. ; what residence shall give jurisdiction, ib.; justice shall record civil proceedings, ib.; non-residents shall deposite costs, ib. ; when defendants reside in different counties, how suit shall be brought, 169 ; the protection of securities, 169, 170 ; instruments for money, how to be de- nied, 170 ; the nature and degree of evidence, 130, 170 ; accounts, how proven, 170 ; parties removing before judg- ment, what shall be done, 171 ; judgments of equal dignity, &c., ib. ; mutual debts and set-offs, 170, 171; continuance, ib.; claims, how disposed of, ib. ; bail, 171; contempts, how punished, ib.; witnesses, how subpoenaed and fined for non- attendance, 171, 172; form of subpoena, 184; pay of wit- nesses, 171 ; interrogatories, ib.; jurors, how drawn and summoned, 172 ; jury fee,'ib. ; juror's oath, ib. ; (and See Jurors ;) where a district is without justices and where the justice may be a party, what shall be done, ib.; justice may be ruled by superior court, ib. ; liability for default in not paying over money, ib. ; where any person may be dis- possessed of negroes or other personal property by fraud or violence, what shall be done, 173 ; the fees for services therein,ib.; attachments, how issued, served, returned, and tried, 174 ; replevy, 175; claims to property attached— duty of the levying officer, ib. ; trial of claims to negroes, ib. ; garnishees returning debts due the absent debtor, how disposed of, 176 ; how suits may be settled, ib. ; how, and when the plaintiff in certiorari shall recover cost, 176. JUSTIFIABLE HOMICIDE, (See Homicide;) rules of the common law in determining the offence, 19, 20. K KEEPER, of jail or penitentiary, permitting prisoners to escape, 47 ; of penitentiary, refusing to receive convict, ib. KIDNAPPING, any free person, 25 ; a free white child, ib Ii LAND, (See Sales and Titles;) setting fire to woodlands, how punished 67. LANDMARKS, cutting, felling, altering, or removing, 67. index. 465 LARCENY, how divided, 30; simple larceny defined, ib.; rules of the common law as to what does and what does not amount to larceny, 30, 31 ; horse-stealing, 32 ; how charged in the indictment, ih. ; how punished, ib. ; cattle-stealing, ib.; how charged in the indictment, ib. ; punishment, if of cer- tain value, ib. ; hog-stealing, ib. ; punishment, ib. ; what other animals are subjects of larceny, punishment for steal- ing them, 32, 33 ; larceny of title papers, 33 ; of evidences of debt, ib. ; of fixtures, ib.; plundering a wreck, ib.; stealing a slave, ib.; inveigling a slave, ib. ; larceny of things not enumerated, 34. Larceny from the person, defined, ib. ; punishment, ib. Larceny from the house, defined, ib.; punishment, ib. ; breaking, enter- ing, intent, &c., 35 ; may be committed on any public building or church, ib. Larceny after trust or confidence reposed, by public officers, agents, &c., 35, 36 ; by a factor, commission merchant, &c., &c., 36 ; by a clerk, agent, &c., ib.; by any person violating a trust, ib. LAW, what, and how divided, 9 ; constitution U. S. supreme law, ib. ; adoption of laws in existence prior to 1776, ib. ; common law of England, defined, 9, 10 ; adopted by the legislature of Georgia, 9 ; what laws, &c., shall be recognised by our courts, 10. LEGACIES, principles of law concerning, 276 ; legatees how to be set- tied with, ib. LEVITICAL DEGREES, table of degrees of affinity, &c., 56, 57. LEWDNESS, how punished, 58 ; lewd-house keeping, ib. LIBEL, 52 ; definition, punishment, ib. ; principles of the common law respecting, 52, 53 ; the printer or publisher a good witness, 54 ; refusing to give the author, may be indicted himself, ib.; truth may be given in evidence on indictment for, ib. LICENSE, practising medicine or surgery without, (proviso,) 59; apothe- cary selling without, (proviso,) 59, 60 ; the defence of the defendant on indictment for such offences, 60 ; marriage license, how and by whom granted, 281 ; marrying persons without license or publication of banns, 63. LIMITATION, of indictments, 127 ; of civil actions, 374. LOST PAPERS, rules of court respecting, 153, 154. LUNACY, (See Idiots,) lunatics incapable of crime when not lucid, 12; not to be put upon trial while affected by insanity, 129 ; persons alleged to be afflicted with lunacy, &c., and who are charged criminally, 12 ; how the issue shall be tried, ib. ; commissions of lunacy, how and when issued, 256 ; guardians for lunatics, &c., how appointed, 255. M MAINPRISE, distinguished from bail, 98. MALICE aforethought, necessary ingredient in murder, 16; technical n n n 466 INDEX. meaning of the term, 16, 17; malice express, 17; malice implied, ib. MALICIOUS ARREST, punishment, 25. MALICIOUS MISCHIEF, in what it consists, and upon what subjects it may be committed, 66, 67, 68. MALPRACTICE, proceedings on indictment of justice for, punishment, 49 ; malpractice of sheriffs, 196. MANSLAUGHTER, (See Homicide.) MARKS AND BRANDS, where to be recorded, 376; the effect of not having them recorded, ib. ; two persons having the same mark, 377 ; duty and fees of the clerk, ib.; marking and branding animals with intent to claim them, 33; punishment for counterfeiting mark or brand required by law, 65. MARRIAGE, when infants may contract, 12; marriage license, by whom granted, 281; to be recorded, ib.; banns, how published, ib.; liability of the marrying officer, 63, 281. MAYHEM, general definition, 21; what circumstances shall characterize the offence, ib.; the various instances of mayhem and pun- ishment, 21, 32. MEASURES, (See Weights and Measures.) MILLS, duty of owners, their toll, penalty for violating the law, 377. MISDEMEANOR, what, and how distinguished from crime, 11. MITTIMUS, (See Commitment and Forms.) MORTGAGE, deeds of, how proved and recorded, 332, 333 ; effect of not being duly recorded, 333 ; property brought within this state under mortgage shall be recorded, and when, ib.; pur- chasers of mortgaged property shall give bond, &c., 202 ; how foreclosed, 334; form of mortgage deed, 337. MOTHER,, entitled to the custody of her orphan children, 255. MOTIONS, rules of court respecting, 154. MURDER, (See Homicide.) MUTINY, of penitentiary convicts, and other prisoners, 50. N NATURAL GUARDIAN, shall give security, 257. NATURALIZATION, laws of United States respecting, 378. NEW TRIAL, rule of court respecting, 155. NOLLE PROSEQUI, when it may not be entered, 125. NOTARIES public, official certificates, &c., received in evidence, 134. NOTE, not to be denied but on oath, 133; how it may be proved, ib. NOTICE, rules of court respecting, 154, 155. NUISANCES not enumerated in the penal code, how to be abated and pun- ished, 61; common law authorities respecting, 61, 62. o OATHS, how administered, 382; oath to support the constitution to be taken by all officers, 195; administrator's oath, 253; ad- ministrator's oath with will annexed, 573; appraiser's, 252; jndex. 467 appraiser's of estrays, 348; oath of bailiff charged with jury, 223; of commissioners appointed to examine persons alleged to be lunatics, &c., 236. OATH—Of constable - - - - - - - -183 Coroner - 21g Jury to take inquest 214 Witness examined on coroner's inquest - - 215 Sheriff 194 Clerk superior and inferior court - 292 Guardians ------- - 256 Jailers 211 Justices of the peace ------ 162 Receiver of tax returns ----- 232 Persons giving taxes 233 Tax collector ------- 235 Grand jurors ------- 224 Jurors in civil cases ------ 221 Jurors special in cases of divorce - - - - 223 " " all other cases - - - - ib. " in justices' courts 172 " for trial of claim in attachment cases return- able to justice's court - 175 Jury on trial of insanity ----- 130 Petit jurors in criminal cases - - - - 125 Jury in trial of slaves ------ 413 Witness in criminal cases - - - - - 125 Witness to be sent before the grand jury - - ib. Insolvent debtors - 368 Persons tolling estrays 348 ORDINARY COURT, powers of, vested in the inferior court, 6 sec. 3 art. con., 441; jurisdiction, 249, 250; shall appoint its own clerk, 249, 280 ; regular meetings—how opened and adjourned, 250, 206; may appoint guardians for illegiti- mate children, 255; may appoint guardians for idiots, &c. ib.; cannot remove children from the mother's custody, proviso, ib. (n.;) may issue commissions of lunacy, 256; what shall be done upon the return of such commission, ib.; may declare intestacy in certain cases, 275; powers and duty in inquiring into abuses and mismanagement of executors, administrators, and guardians, 260, 266, 867 ; shall examine returns made by executors, administrators, and guardians, and direct the clerk to record them, 260; may appoint commissioners to distribute estates, and how, ib.; may order sales of slaves in certain cases, 263 ; may order sale of part or the whole of real estates, ib.; may direct executors and administrators to make titles in cer- tain cases—the requisites to be observed, 265, 266 ; shall regularly call over the docket and make entries, 267; let- ters administration and testamentary shall not be granted pending appeals—but temporary letters may issue in such cases, 269 ; may grant letters dismissory to executors, ad- ministrators, or guardians, 270; may appoint their clerk administrator de bonis non, in certain cases, 271; authority 468 INDEX. for the production of wills, ib.; authority for the produc- tion and punishment of witnesses, 272 ; duty in the quali- fication of executors, 272, 273 ; may inquire into the cir cumstances of the poor, and bind out orphans, 277 ; im- plied power to bind bastards, 278. ORPHANS, may be bound out by the court of ordinary, 277 ; (and See apprentices.) P PARTITION of lands, how made, 263. PATROLS, females exempted from patrol duty, 402; justices of the peace charged with the execution of patrol laws, ib.; patrol divisions, how laid out, 402, 403; who are liable to such duty, 404 ; penalty for non-performance of duty, 404, 405; disobedience and disorderly conduct of patrolmen, how punished, 405 ; powers and liability of patrols in taking up slaves, ib.; slaves shall not go out without a ticket, 407, 409 ; privilege of persons who may be sued for anything done in the execution of the patrol laws, 406 ; assemblages of slaves prohibited, and how dispersed, 407 ; more than seven shall not be permitted to travel the highway together, 409 ; disorderly conduct of slaves how punished, 407 ; not more than ten slaves shall be kept on a farm without a white man, 408 ; slaves shall not carry firearms—proviso, 406, 408; arms found on slaves forfeited, and how, 407, 408. PATROON, (See Slaves.) PEACE, (See Warrants and Examination,) disturbing the peace, 51. PEDLERS, tax on, 383 ; penalty for selling without license, 66 ; trading with slaves, 74 ; proceedings against, 383. PERJURY, definition, 43 ; punishment, ib. ; subornation of, 43, 44; effect of conviction for those offences, 44 ; taking the life of another by perjury, how punished, ib.; rules of the common law as to what does and what does not amount to perjury, 43 ; evidence necessary to convict, 44; conse- quenees of such conviction, ib. PHYSICIAN, what the law implies the profession to undertake, 59 ; practising without license, ib.; endeavouring to spread smallpox, 60. PICKLOCK, persons found with any picklock, &c., &c., 60. PLEA, how made, recorded, altered, &c., 123, 124. PLEADINGS, in superior court, 145; in justice's court, 181. POLYGAMY, definition and punishment, 56 ; who may be competent witness on an indictment for, ib. POOR, tax may be levied for the support of the poor, 277; how collected and appropriated, ib. PRISONER, (See Jailer,) assaulting jailer, maybe killed, 19 ; on civil process, how disposed of, 19'8 ; in jail, how to be treated, 330 ; duty of the sheriff when prisoners confined in jail may be sick, ib.; his liability for neglect of duty herein, 331; aiding prisoner to escape, 46, 47. index. 469 PRISON BOUNDS, how laid out, 331. PROBATE of wills, 271, 272. PRO CHE IN AMI, rules of superior court respecting suits by, 155. PROSECUTOR, how to procure a warrant or summons, 76 ; who may or may not prosecute, ib.; the law under which offen- ces must be prosecuted, 127 ; danger of concealing crime, 76 ; his protection, 77 ; name of, to be endorsed on the indictment, 123 ; such endorsement not essential to an indictment, ib. PROVISIONS, implied warranty on the part of the seller, as to the good- ness of quality, 59. PUBLIC money, holders of, not to be commissioned, 235 ; sheriffs col- lecting, and not paying over, how proceeded against, 206. PUBLIC worship, persons disturbing religious congregations, how to be dealt with, 384 ; spirituous liquors not to be sold within one mile of meeting-houses, ib.; fines collected of offenders, how disposed of, ib. PUBLIC indecency, how punished, 58. PUBLIC records, &c., stealing, altering, or embezzling, 45 ; officer with- holding after his term has expired, ib. PUNISHMENT in common jail, limited, 74. QUARANTINE, general regulations, 385 ; when quarantine is performed, how the vessel shall enter, ib. : entering in violation of quarantine regulations, 60; the governor's powers in es- tablishing quarantine by proclamation, 386 ; duty of pilots before entering vessels, ib.; duty of corporate authorities upon ascertaining the existence of contagious diseases, 387 ; duty of the executive on receiving notification, ib. ; juris- diction of the corporation of Savannah extended, 387, 388; resolutions passed in 1834 respecting smallpox, 388; vessels arriving having free persons of colour on board shall be quarantined, 357, 368, 359 ; and See free Persons of Colour. r RAPE, definition and punishment, 22 ; rules of common law respecting, ib.; the party ravished may be a witness, ib.; the jury to judge of her credibility, ib.; infant under 12 years old, being ravished, may give evidence, ib. ; may be heard without oath, ib. ; the effect of such information, ib.; caution to be observed in all such cases, ib. RECEIPTS final, of executor, administrator, and guardians, how to be attested and recorded, 270 ; copy thereof made evidence, 271. RECEIVER of tax returns, (See Tax.) RECORDS, stealing, embezzling, altering, &c., 45 ; officer withholding from successor, ib. RECOGNISANCE, party refusing to enter into recognisance may be committed, 103; the nature of the recognisance, ib. ; may be discharged, and how, 103, 104; justice being deceived 470 index. as to the sufficiency of the security may afterward require better, 103 ; for the peace and good behaviour, the nature of it, and who may require it, ib.; how it may be dis- charged, 104 ; for the peace, how forfeited, ib.; for the good behaviour, how forfeited, 105 ; duty of the magistrate after taking recognisance, 104 ; of bail, must be signed, proviso, 108 ; how certified and returned, ib.; how fulfilled, ib. ; shall not.be taken more than twice, ib.; proceedings on forfeited recognisances, 111, 112 ; taken by clerks supe- rior court, shall be recorded, and how, 156. REGRATING, offence of, abolished, 64 ; the offence defined, ib. REMOVING dead body illegally, 62. RENT, mode of distraining for rent, 389 ; privileges of the tenant, ib.; claims to property distrained, how disposed of, ib. ; rent not to have precedence of judgments, ib.; being unpaid, the ten- ant may re-enter, ib.; liability of tenant for refusing pos- session after expiration of lease, ib.; how to remove tenant holding over, 390 ; all contracts for rent shall bear interest, 389 ; tenant making oath that the lease has not expired, what shall be done, 390 ; and See Forms. RESCUE, defined, 46 ; how punished, ib.; what circumstances neces- sary to complete the crime, 97 ; what shall be done when a party is rescued, ib. (And See Escape.) RESISTING peace-officer, 46. RETAILING without licenses, 63. RETURNS, shall be made by executors, administrators, and guardians, 260 ; not being regularly made, what shall be done, 267. (And See Forms.) REVOCATION of letters administration, &c., suits shall not abate, 267 ; of will, 275. RIOT, (See Unlawful Assembly,) definition and punishment, 51 ; dis- tinction between riot and unlauful assembly, ib.; distinction between riot and affray, ib. ; punishment of riot, ib. ROADS, BRIDGES, &c. Roads, what roads shall be deemed public, 391; their width, 396; pen- alty for obstructing, ib.; timber necessary to repair, may be used, ib. ; where roads incommode persons by passing over their premises, what shall be done, 391; powers and duty of the inferior court in laying out and repairing roads, 392, 397 ; road districts, how laid out—commissioners ap- pointed, 393, 394, 396 ; vacancies among commissioners, how filled, 397 ; commissioners finable for neglect of duty, 396, 397 ; duty of commissioners in appointing overseers, and directing how and when roads shall be worked, 394, 398 ; duty of overseers in summoning hands, 394 ; in working roads, 395, 396; in measuring and marking roads, 398 ; punishment for removing or destroying mile- post, &c., set up on public roads, 68, 398 ; who shall be liable to road duty, 394 ; defaulters, how dealt with, 395, 397 ; fines, how collected and disposed of, ib.; powers of index. 471 commissioners in proceedings against defaulters, 397 ; cer- tain counties excepted from the operation of the general road laws, 399. Bridges, what bridges are public, 392 ; punishment for maliciously de- stroying, 67; powers and duty of the inferior court in erect- ing and repairing public bridges, 392, 396; the same in establishing and regulating ferries, 392, 393, 399; liability of owners of bridges and ferries, 393 ; toll-board to be set up, ib.; commissioners for building bridges shall not be undertakers or security of undertakers, 396. ROBBERY, definition and punishment, 29, 30; rules of common law as to what does and what does not amount to robbery, 29. RULES OF COURT, (See Chap. 9, Part 2.) § SABBATH, laws commanding observance of, and prohibiting labour, sports, &c., 399, 400. SALES hy executors, administrators, and guardians—of real estate, how to be effected, 263 ; how to be advertised, 264 ; hours of sale, ib.—of slaves, how to he made and conducted, 263, 264; liability of bidders, 264 ; how property shall be of- fered, ib.; sales by one executor or administrator good, though others may be associated with them in the adminis- tration, ib.; sales advertised by executors or administrators, and the property being claimed, what shall be done, 264, 265. SALES by sheriff, when made, and how advertised, 200, 201, 206 ; land must be sold in the county where it lies, 201 ; purchaser must be put in possession, 206 ; sale of mortgaged prop- erty, 202 ; of life estate, ib.; sale of bank stock, 205 ; of personal property under tax execution, how advertised, 206 ; liability of bidders at sheriffs' sales, 264. SALES by coroners, (See Sales by Sheriffs.) SALES by constables, how advertised, 190. SCIRE FACIAS, issue of, against bail in civil cases regulated, 110; issued to revive judgments, how returnable, 156; rules of superior and inferior court respecting issue of, ib. SCOLD, adjudged a nuisance, and how punished, 62. SEAMEN, coloured, respecting their arrival in this state, 357; duty and liability of captains having them on board, 357, 358, 369; shall depart with the vessel, 358; what persons are ex- cepted from the operation of the law, 358, 369. SEARCH WARRANT, (See Warrants and Arrests.) SECURITIES on appeals and stay of execution, who have paid the debt, shall control the execution, 341 ; execution may issue against security and principal, jointly and severally, 342 ; security paying the debt shall take control of the execution, 169, 199, 297, 342 ; security on recognisance, or bond, &c., may on being sued make special defence, and have 472 INDEX. the like privilege as security on appeal or stay of execution, 342 ; where they fail to make such defence at the trial, how they shall proceed in order to control the execution, 343 ; securities signing as such, shall be proceeded against accordingly, 342 ; surety of the peace, (See Warrants and Recognisance ;) securities of executors, administrators, and guardians, 266, 267. SELF DEFENCE, (See Defence,') what circumstances make the killing justifiable, 20. SENTENCE, in penitentiary cases, when for more than one offence, how executed, 125; of death, how executed, 126; howr sus- pended, in cases of insanity after conviction, 127 ; in cases of pregnant females, 128; failure in execution, how after- wTard executed, ib.; time and place of execution must be fixed, ib. ; second sentence to the penitentiary—its devia- tion, 129. SEVERING in trial, when permitted, 129. SHERIFF, (/or Sale, See Sales,) when and how elected, 193 ; what done in case of tie, ib.; when to apply for their commission, &c., ib. ; shall officiate until a successor is qualified, ib.; vacancies tilled by popular vote, ib. ; inferior court may appoint during interim, 194 ; certain persons ineligible to the office of sheriff, 236 ; shall attend the superior and inferior courts, 194 ; and courts of ordinary, 206 ; shall execute writs, and may command assistance, 194 ; powers and liabilities in making arrests, 93 ; may appoint deputy, 194 ; bound for their acts, 195; shall give bond with freehold securities, and take an oath—who may qualify them—bond how sued, 194 ; shall be responsible for the conduct of jailers, 209, 210 ; duty on going out of office, 195; shall be subject to rule after going out of office, 204; how removed from office, 207 ; shall sell and make titles to property levied on by their predecessors, 195 ; liability of, generally, 195, 196 ; on not paying over money col- lected, 196, 203, 206, 235; shall not act as attorney, 195, 303 ; guilty of extortion, how proceeded against, 196 ; duty in serving civil process, 197; process against default- ing executors or administrators, 267 ; when interested in suit what shall be done, 197; duty and liability in bail cases, 109, 114, 197, 198 ; duty in levying on land, 201 ; on bank stock, 205 ; defendant may point out property, 198; duty in serving ca. sas, 198; in claim cases, 199; 201; in summoning juries, 200,221 ; duty and liability of, in collecting executions against tax collectors, 202, 203 ; fees in such cases conditional, 203 ; selling property of de- faulting tax collectors, ib. ; collecting tax executions, 204, 206 ; shall keep execution docket, 206 ; duty to sick pris- oners, 330, 331 ; may pursue and arrest persons on bail or criminal process in another county, 93, 204. SLAVES, (See Patrols, Trial of Slaves, and Seamen,) what persons shall be considered slaves, 349 ; owners of infirm slaves shall be compelled to take care of them, and how, 410 ; slaves index. 473 shall not be employed to work on Sabbath, ib. ; how manu- mitted in Georgia, 351 ; penalty for attempting to free slaves illegally, 351, 352 ; slaves going on board of ships riding quarantine, and which have free negroes on board, how punished, 358 ; slaves shall not have command of boats on the Savannah river, 409 ; liability of boat-owners in such cases, ib.; boat-owners shall not suffer slaves to put on board any produce, ib.; penalty, ib.; slaves shall not hire any house, 410; penalty against persons hiring them houses, ib. ; slaves shall not be permitted to hire their time or transact business for themselves, ib.; penalty, ib.; slaves buying certain articles without ticket, how punished, ib. Offences relative to Slaves—introducing slaves into this state in- dictable, proviso, 69 ; who are exempt from the penalty, 70 ; what sufficient to allege on indictment for this offence, ib.; defendant how to plead, See., ib.; penalty for purchas- ing, hiring,