Doe ex dem. Truluck et al. vs. Peeples et al.

were without date; though the transcript of the record sent up showed that the trial was had on the 10th of February, 1846, and that the notice of the filing of the bill of exceptions was given on the 13th day of the same month.

The ground of error set forth in the bill of exceptions was, that the court below rejected the deed which was offered in evidence, on the ground that its execution was not sufficiently proven, and thereupon awarded a nonsuit, without specifying any particular defect in the proof, or showing wherein the same was deemed insufficient. The rejected deed was executed on the 9th of January, 1833, and recorded on the 21st of June, 1839. It purported to have been executed in the presence of two attesting witnesses, and acknowledged before a Justice of the Peace; but there was neither date nor place to the acknowledgment.

The paper produced as the original bill of exceptions did not set forth a copy of the deed, but referred to it, together with the proceedings in the court below;-and a copy of the deed" in words and figures" was embodied in the transcript of the record from the court below.

The record was silent as to whether any bond had been given, or affidavit made; and also, as to the residents of the plaintiffs, in error.

This motion was argued by AKIN for defendants in error, and by HANSELL, UNDERWOOD and JONES for the plaintiffs.

By the Court-LUMPKIN, Judge.

As to the first ground the act creating this tribunal is explicit, that the bill of exceptions must be drawn up by the party or his attorney, within four days after the trial, in which the decision complained of has been made; and certified and signed by the presiding Judge within that time. The difficulty here is, that the certificate has no date: But must not this court, in favor of Public Officers, presume that they discharge their duty, in compliance with the law, in the absence of all proof to the contrary? Moreover, it is in proof that notice, that the Bill of Exceptions had been certified and signed by the Judge, was served upon the adverse party on the third day after the trial. It is apparent, therefore, that this act was performed within the four days. Id certum est quod certum reddi potest.

The second and third grounds may be considered together. The 4th section of the statute prescribes that the party bringing up the cause shall specify in the bill of exceptions the errors complained of.

It is very important for the correct administration of the law, as well as for his own justification, that the Circuit Judge in the language of the Legislature should see to it, that the bill of exceptions "be true and consistent with what has transpired in the cause brfore him," for upon this paper, and the transcript of the record alone, all matters in this court must be heard and determined. The omission of as

sertion of one which did not exist, may, and likely fact, or the in

will, defeat the ends of justice. The court are constrained to admit that the errors complained of, are not set forth with that distinctness which is desirable; still they do not deem the defect in this instance so palpable as to force the court to dismiss the writ. A copy "in words and figures" of the rejected deed is set out in the record, and the Judge certifies that it is a true narrative of what transpired before him, in the trial below. We infer, therefore, that there was no evidence produced as to the execution of the deed except

endorsement of registration by the clerk upon the attestation of two

Doe ex dem. Truluck et al. vs. Peeples et al.

subscribing witnesses, accompanied with the acknowledgment of the feoffor in the presence of the magistrate, and that the error, if any was committed, consisted in ruling that this proof was insufficient to authorize the document tendered to go before the Jury.

The fourth and fifth grounds are abandoned.

To prevent misapprehensions the court would observe, that the bill requires, that a "complete transcript of the entire record of the cause below," and also the bill of exceptions, be sent up to this court.

The last and perhaps the most important objection is that embraced in the 6th ground, namely:-That no bond and security had been given. We meet it by saying that none is required.

The giving of bond and security is optional, not compulsory.

In all cases where Bond is given, or an affidavit filed as provided for by the law, it operates as a supersedeas.

Failing to do this, the opposite party is at liberty to proceed to enforce his rights by execution, or otherwise. The court are aware that there are portions of the statute which seem to militate against this construction. They feel confident, nevertheless, that this interpretation will best subserve the intention of the General Assembly, and reconcile all the provisions of the act. They hold then, that the giving of bond, or the filing of affidavit, in certain cases, is a condition precedent, that must be complied with, where the bill of exceptions is to operate as a supersedeas.

The failure or neglect to do this will not prevent this court from hearing and determining the causes, which may be sent up from the courts below.

The motion is therefore overruled.

No. 2.-JOHN DOE ex dem. JAMES H. TRULUCK and SUTTON H. TRULUCK and REUBEN HERNDON, plaintiffs in error, vs. RICHARD ROE, casual ejector, and JOHN PEEPLES, tenant in possession, and JAMES SIMMONS, and others, co-defendants, and defendants in

error.

Ejectment.

A Deed to land, signed, sealed and attested as follows:

"Signed, sealed and delivered in presence of

WRIGHT SANDERS,

THOMAS SANDERS.

his

JAMES MATTHEWS, [Seal.]

mark.

Acknowledged in the presence of me, WILEY PEARCE, J. P.," and recorded in the Clerk's office of the Superior Court in the county where the land lies, is admissable in evidence without further proof.

The court will presume that the acknowledgment before the magistrate was made where the Deed itself purports to have been executed; and at the time it purports to bear date, in the absence of all proof to the contrary.

It is presumed, until the contrary is proved, that every man obeys the mandates of the law, and performs all his official and social duties.

This was an action of Ejectment, tried in the Superior Court of the county of Cass, before Judge Wright. The transcript of the record discloses that this action was predicated upon two several demises: the first

Doe ex dem. Truluck et al. vs. Peeples et al.

from James H. and Sutton H. Truluck, jointly; and the second from Reuben Herndon, for the recovery of lot of land known as number one hundred and six, in the twenty-third district of the second section of, originally, Cherokee, now Cass county, aforesaid. At the February term, 1846, of said Superior Court, the said action came on to be heard; and on behalf of plaintiff, a grant of said lot of land from the State of Georgia to James Matthews was offered, and read in evidence to the jury.

The counsel for the plaintiff then tendered a deed from James Matthews, conveying said lot of land to the lessors, James H. and Sutton H. Truluck, jointly, which deed is in the words and figures following:

GEORGIA,

This Indenture, made the twenty-ninth of January, Decatur County. A. D., 1833, between James Matthews, of the county and State aforesaid, of the one part, and James H. Truluck and Sutton H. Truluck, of the same place, of the other part: Witnesseth, that the said James Matthews, for and in consideration of the sum of one hundred dollars, to him in hand paid, at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, aliened, conveyed and confirmed, and by these presents do grant, bargain, sell, alien, convey and confirm unto said James H. and Sutton H. Truluck, their heirs and assigns, all that tract or parcel of land situate, lying and being in Cherokee county, known and distinguished by lot number one hundred and six, in the twenty-third district, second section, of said county, containing one hundred and sixty acres, more or less: to have and to hold said tract of land, with all and singular the rights, members and appurtenances thereof whatsoever, to the said James H. and Sutton H. Truluck, being, belonging, or in anywise appertaining, with the remainder and remainders, reversion and reversions, rents, issues and profits thereof to the only proper use, benefit and behoof of them, the said James H. and Sutton H. Truluck, their heirs, executors, administrators and assigns, in fee simple. And the said James Matthews, his heirs, executors and administrators, and all and every person or persons, shall and will warrant, and forever defend, by virtue of these presents. In witness whereof the said James Matthews hath hereunto set his hand and affixed his seal, the day and year first above written. Signed, sealed and delivered in presence of his

WRIGHT SANDers,
THOMAS SANDERS.

JAMES X MATTHEWS, [Seal.]

mark.

Acknowledged in the presence of me, WILEY PEARCE, J. P.

GEORGIA, Cass County;

Office of the Clerk of the Superior Court.

Recorded in book D. of Deeds, page 291. June 21st, 1839.

}

CHESTER HAWKES, Clerk.

Which was objected to by defendants' counsel, on the ground that the signing, and delivery thereof, was not sufficiently proven, to authorize the same to be read in evidence to the jury; which objection was sustained by the court below, the deed rejected, and the plaintiff thereupon nonsuited.

To all which the plaintiff in error excepted.

WM. H. UNDERWOOD, JOHN A. JONES and WM. Y. HANSELL, Counsel

Doe ex dem. Truluck et al. vs. Peeples et al.

for plaintiff in error, relied upon the Registry Acts of this State; Prin. Dig. 162, 166, 167; and Hotchkiss Stat. Laws of Georgia, 418.

T. H. TRIPPE, W. AKIN and D. R. MITCHELL, counsel for defendants in error, cited Jackson ex dem. Wycoff vs. Humphrey, 1 Johns. Rep. 498; Jackson ex dem. Parker and others vs. Philips, 9 Cowen, 94; Dibble vs. D. and B. P. Rogers, 13 Wend. 536; Jackson ex dem. Merritt and Staunton vs. Germain, 2 Cowen, 552.

By the court-WARNER, Judge.

The error assigned in this case is the rejection of the Deed mentioned in the Record, and awarding a nonsuit in the court below. The only question for the decision of this court is, whether the deed was properly executed, according to the provisions of the several Acts of the Legislature of the State of Georgia, to have admitted the same in evidence.

By the Act of 22d February, 1785, (Prince's Dig. 162,) it is enacted, "That all deeds of conveyances by way of bargain and sale, bona fide, of lands or tenements, and executed under hand and seal, in the presence of two or more witnesses, and a valuable consideration paid, that are proved or acknowledged before a Justice of the Peace, or before the Chief Justice, or one of the Associate Justices, and the said deed is registered by the clerk of the court in the county where such lands or tenements lie, in a book by him to be kept for that purpose, within twelve months from the date thereof, such deed of conveyance is declared to be good," &c.

By the 3d section of the Act of 26th December, 1827, (Prince's Dig. 166,) it is enacted, "Every deed of conveyance or mortgage of either real or personal 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," &c. The deed offered in evidence in the court below, is attested by two witnesses, and acknowledged in the presence of a Justice of the Peace, and recorded in the county of Cass, 21st June, 1839. The objection urged by the defendants in error was; it did not appear on the face of the deed, when and where the acknowledgment before the Justice of the Peace was made. The deed on its face purports to have been made in Decatur county, in this State, on the 29th January, 1833. And this court will presume the acknowledgment was made in the county where the deed purports to have been made; and at the time it purports to bear date, in the absence of all proof to the contrary.

We shall not voluntarily impute malpractice to the officer before whom the acknowledgment was made, by presuming it was taken at a time, and place, when, and where, he had no authority to take it.

It is presumed, till the contrary is proved, that every man obeys the mandates of the law, and performs all his official and social duties. -Greenleaf's Evidence, 47; The Bank U. S. vs. Dandridge, 12 Wheaton's Rep. 64; Hartwell vs. Root, 19 John's Rep. 345.

We are therefore all of the opinion, the deed ought to have been admitted in evidence, and that the court below committed error in rejecting the same and awarding a nonsuit. Let the nonsuit be set aside and the case reinstated.

Moore vs. Ferrell et al.

No. 3.-MOORE vs. FERRELL et al.

Motion to dismiss Writ.

A motion was made to dismiss the writ of error on the ground that the order of the Judge below, dissolving the injunction, was made at Chambers. And that the Supreme Court possesses no jurisdiction over decisions made by Judges of the Superior Courts in vacation.

AKIN for the motion.

UNDERWOOD and TRIPPE contra.

By the Court-LUMPKIN, Judge.

The 25th section of the Act of 1811 provides that, "All bills of injunction granted by the Superior Courts, or any of them, or which may hereafter be granted, shall stand and be considered as open for argument and amendment at the first Term of the Superior Court which may be holden after the passing of this act, in and for the county were the suit originated; or the first Term after the granting of such Bill of Injunction," &c. This court will not decide, because it is not necessary, how far the Rule in Equity, authorizing applications to dissolve injunctions to be made before the first Term of the court to which the same is returnable, is warranted by the statute just quoted. Were the alternative presented of rescinding this Rule of Practice, promotive as it may be of public justice, or retaining jurisdiction of decisions made out of Term time we should not hesitate: We find ourselves, however, in no such dilemma. The 4th section of the Act creating this tribunal provides that "all causes of a criminal or civil nature may, for alleged error in any decision, sentence, judgment or decree, of any such Superior Court, be carried up from the counties in the respective districts aforesaid to the Judges of the Supreme Court, at the respective terms thereof for such district, to be by the said Supreme Court revised and determined." The only inquiry then is, was the order of the judge below, dissolving the injunction, a "decision, sentence, judgment or decree" of the Superior Court? If so, the right of this court to revise and determine it is clearly given.

It is true that in another part of the same section the law provides that the costs shall be paid, and the bond given within four days after the Term at which the exceptions were taken. A different phraseology obtains, however, in the previous part of the section specifying the mode in which causes are to be carried up, namely: that it is to be done within four days after the trial of the cause in which the decision or sentence has been made. Were it otherwise, we should still hold that the session of the court below, although intermediate the regular Terms, was nevertheless a Term quoad the judgment, or decree complained of.

Motion overruled.