THE OFFICE AND DUTY
OF A
JUSTICE OF THE PEACE,
AND A
GUIDE
TO CLERKS, CONSTABLES, CORONERS, EXECUTORS,
ADMINISTRATORS, GUARDIANS, SHERIFFS,
TAX-COLLECTORS, AND RECEIVERS,
AND OTHER CIVIL OFFICERS,
ACCORDING TO THE LAWS OF THE STATE OF GEORGIA ;
WITH'AN
APPENDIX,
CONTAINING' A COLLECTION OF THE MOST APPROVED FORMS,
TOGETHER WITH THE CONSTITUTION OF THIS STATE,
AND THE CONSTITUTION OF THE UNITED
STATES, WITH THE AMEND-
MENTS TO EACH.
BY AUGUSTIN S. CLAYTON.
MILLEDGEVILLE:
PUBLISHED BY S. GRANTLAND.
1819.
EASTERN DISTRICT OF PENNSYLVANIA, to Wit:
BE IT REMEMBERED, That on the twenty-eighth day of September, in the forty-fourth year of the
independence of the United States of America, A. D. 1819, Mathew Carey and Son, of the said district,
have deposited in this office the title of a book, the right whereof they claim as proprietors, in the
words following, to wit:
The office and duty of a Justice of the Peace, and a guide to Clerks, Constables, Coroners, Execu-
tors, Administrators, Guardians, Sheriffs, Tax-collectors, and Receivers, and other civil officers, ac-
cording to the laws of the State of Georgia; with an Appendix, containing a collection of the most
approved forms, together with the Constitution of this State, and the Constitution of the United States,
with the amendments to each. ByAugustinS Clayton.
In conformity to the Act of the Congress of the United States, intituled, " An act for the encour-
agementof 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 sup-
plementury to an Act 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 extending the benefits thereof to the arts of designing, engraving, and etching his-
torical and other prints."
D. CALDWELL,
Clerk of the Eastern District of Pennsylvania*
INDEX.
Accessories
Aocounts
Actions, See Limitations.
Administrators, See Executors.
Adultery
Affirmation .......
Affray ........
Appeals, See Justices of the Peace•
Apprentices
Arraignment
Arrest
Arson, See Burning
Articles
Assault and Battery ....
Attachments ......
Attainder .......
Attorney
Bail .
Bastardy
Battery, See Assault, &C.
Bawdy-House, See Vice, kzfc.
Behaviour
Bigamy .
Bread, See Unwholesome provisions.
Bribery
Bridges, See Malicious Mischief.
Buggery, See Sodomy, iSfc.
Burglary ........
Burning
Butcher, see unwholesome provisions.
Carriers
Cattle, Horses, and Hogs . .
Certiorari
Cheats .......
Clerks
Commitment
Compounding Felony ....
Confession
Conspiracy .......
Constable »
Conviction
Coroner
Counterfeiting, see Forgery.
Dams
Duelling
Escape
Estrays ..."
Evidence
Execution
Executors and Administrators
Extortion
False imprisonment ....
Feme Covert
Fences, See Malicious Mischief.
Forgery and Counterfeiting . .
Fornication, See Vice, Vc.
Fraud, See Cheat.
Free Negroes ...... 180
Gaming 190
Guardian and Ward, See Executors, iVc.
Hog-stealing, See Cattle, &c. ,
Homicide 192
Horse-stealing, See Cattle, &c.
Indictment 203
Infants 206
Insolvent Debtors 208
Interest 212
Interrogatories 213
Jail and Jailer ...... 218
Judgment . 222
Jurors 223
Justices of the Peace . . . . 234
Larceny . 249
Law 258
Lewdness, See Vice, iSfc.
Libel 259
Limitations 262
Lunatic 264
Maim ......... 265
Malicious Mischief .... 266
Malpractice . 267
Manslaughter, See Homicide.
Marriage ....... 268
Mills 269
Misdemeanor ...... ib.
Misprision of Treason ...» 271
Mittimus, See Commitment.
Murder, See Homicide'.
Mute, See Arraignment.
Nuisance ib.
Oaths ........ 273
Orphans, See Executors, &c.
Overseer, See Roads.
Partition, See Executors, iVc.
Patrols 279
Pedlars 287
Perjury 289
Piracy 290
Polygamy, See Bigamy.
Poor, See Executors, &c.
Posse Comitatus 291
Principal 292
Prison and Prisoners .... 293
Prosecutor ....... 296
Public Worship ..... ib.
Quarantine • 297
Rape 30 2
Recognizance ...... 304
Record, See Recognizance.
Religious Societies, See Pub. Worship.
Rent 306
Rescue ........ 311
Riot ......... ib.
Roads 31J
1
3
ib.
4
5
10
14
15
25
26
ib.
31
40
ib.
ib.
52
59
62
63
64
70
72
73
75
78
82
94
95
ib.
96
98
104
ib.
107
113
114
119
125
132
133
174
175*
ib.
176
INDEX.
iv
Robbery 320
Sabbath, See Vice, life.
Seamen 320
Search Warrant 322
Self Defence, See Homicide•
Servants 324
Sheriff 327
Slaves 340
Small Pox 354
Sodomy and Bestiality . . . ib.
Stealing, See Larceny.
Stolen Goods, See Search Warrant.
Sunday . 355
Sureties, See Behaviour.
Summons ib.
Swearing and Cursing, See Vice, ifc.
Swindling, See Cheat.
Taxes ......*• 357
Tenant, See Bent.
Theft, See Larceny.
Threats and Menaces . . • • 372
Treason ib.
Usury 373
Unwholesome Provisions . • .374
Vagrants ib.
Verdict, See Jurors and Perjury.
Vice and Immorality .... 375
Warrants 379
Weights and Measures . . . 383
Widows, See Executors, life.
Wills, See Executors, life.
Witnesses 385
Wood, See Malicious Mischief.
APPENDIX.
FORMS 387
Affrays, see Affrays, in the body of
the work.
Assault and Battery, see Assault
and Battery in the body of the
work.
Attachments, see Attachments in
the body of the work.
Bail, see Bail in the body of the
work.
Bastard}', see Bastardy in the body
of the work.
Behaviour 388
Burglary 391
Burning . ib.
Cheats ........ 392
Commitment ...... ib.
Coroner 393
Criminals 398
Deeds . 401
Escape 404
Execution against the body . . 405
do. do. property . ib.
Felony 406
Larceny ib.
Marriage ....... 407
Mortgage, see Deeds.
Power of Attorney 409
Rape - 410
Recognizance 411
Sale, bill of : . 412
Search Warrant ib.
Vagrants 413
Constitution of the United States 415
Amendments thereto .... 428
Constitution of Georgia . . . 433
Amendments thereto .... 448
ERRATUM.
In page 14, line 20, the work quoted should be P. C. 135.
THE
OFFICE AND DUTY
OE A
JUSTICE OF THE PEACE.
ACCESSORIES.
I. Who are Accessories.
II. Hozv they are punished.
I. Who are Accessories.
1. AN accessory is he who stands by, aids and assists, or who,
not being present, aiding, abetting or assisting, hath advised and
encouraged the perpetration of the crime. He or she who thus
aids, abets or assists, or advises or encourages, shall be called a
principal in the second degree. Pen. Co. 1817, p. 94.
2. An accessory is also a person who, after full knowledge that
the crime has been committed, conceals it from the magistrate, and
harbors and protects the person charged with or found guilty of
the crime*. Pen. Co. (1818), p. 193, amend.
II. Hoxv they are punished.
1. Accessories, or persons aiding, advising or assisting in and to
the perpetration of offences, where the punishments are not pro-
vided for in this code, shall be punished in the following manner •
* The above definition of accessories before and afar the fact, having so ma-
terially changed the usual acceptation of those terms, that it is thought impro-
per to submit any of the principle^, which have heretofore obtained in relation to
them, leaving the subject to the more safe and competent authority of judicial
decisions.
A
0
ACCESSORIES.
Accessories, before the fact, aiders, abettors or advisors, shall re-
ceive the same punishment, as is directed to be inflicted on the
principals.
2. Accessories, after the fact, shall be punished by fine, or im-
prisonment in the common jail of the county, or both, at the dis-
cretion of the court, lb. 134.
Besides the rule laid down in the above clauses for the punish-
ment of accessories in general, the following particular cases are
to be found in the penal code.
1. If any person shall counsel, advise or direct any woman to
lcill the child she is pregnant, or goes with, and, after she is deliver-
ed of such child, she kill it, every such person so advising or di-
recting, shall be deemed accessory to such murder, and shall have
the same punishment as the principal shall have. Ib. 99.
2d. Accessories or persons assisting, commanding or advising
any person to commit any offence under that class of larceny, de-
nominated larceny from the house, shall receive the same punish-
ment as may be inflicted on the principal or principals. Ib. 110.
3. If any person or persons shall buy or receive any goods or
chattels that shall be feloniously taken or stolen from any other
person, knowing the same to be stolen, he, she or they, shall be
taken and deemed an accessory or accessories, after the fact, and
shall incur the same punishment as would be incurred and inflict-
ed on the person or persons convicted of having stolen the said
goods or chattels, so bought or received, knowing the same to be
stolen. Ib. 120.
4. If any person shall receive, harbor or conceal any bur-
glars, felons or thieves, knowing them to be so, he, she or they,
shall be taken as accessory or accessories, after the fact, and being
convicted, shall be punished by imprisonment in the penitentiary,
at hard labour or in solitude, for any time not exceeding three
years. Ib. 121.
5. If the principal thief or thieves, cannot be taken, so as to be
prosecuted and convicted, it shall and may be lawful to prosecute
any person buying or receiving any goods stolen by such principal
thief or thieves, knowing the same to be stolen, as for a misdemean-
or, although the principal thief or thieves be not before convicted, or
whether he or they are amenable to justice or not; and on con-
viction, every person so buying or receiving stolen goods, know-
ing them to be stolen, shall undergo an imprisonment in the peni
tentiary, at hard labour or in solitude, for any time not exceeding
ADULTERY AND FORNICATION. <5
five years ; and this prosecution and punishment shall exempt the
offender from being tried and punished as accessory, if such jbrinci-
pal thief or thieves shall be afterwards taken and convicted. Ib.
See Escape and Rescue.
ACCOUNTS.
1. All accounts in the public offices, and all the accounts of the
tax collectors of this state, shall be expressed in dollars or units,
dismes or tenths, cents or hundredths, and mills or thousandths ;
a disme being the tenth part of a dollar, a cent the hundredth
part of a dollar, a mill the thousandth part of a dollar.
2. Verdicts of all juries, on all contracts, shall be expressed
conformable to the above regulation. M. & C. Dig. 33.
3. No verdict shall be received on any unliquidated demand
where the jury have increased their verdict on account of inter-
est, nor shall interest be given on any open account, in the nature
of damages, Ib. 300.
Actions. See Limitations.
Administrator. See Executors.
ADULTERY AND FORNICATION.
1. When any man and woman shall live together in adultery
or fornication, it shall be the duty of any neighbouring justice, if
within his knowledge, or upon information to him upon oath, that
such man and woman do live in adultery or fornication, to cause
the said man and woman to be brought before him, whose duty it
shall be to bind them over to appear at the next superior court.—;
M. & C. 43.
2. Any man and woman who shall live together in an open
state of adultery, fornication, or adultery and fornication, which
4 ADULTERY AND FORNICATION..
will be sufficiently established by any circumstances which
raise the presumption of cohabitation and unlawful intimacy, or
who shall otherwise commit adultery, fornication, or adultery and
fornication, shall be severally indicted, and on conviction, such man
and woman shall be severally sentenced to pay a fine not exceed-
ing five hundred dollars, and on conviction a second time, a fine
of one thousand dollars, and for every repetition of the offence, a
fine in the same proportion j and moreover may be imprisoned in
the common jail: but it shall at any time be in the power of the
parties to prevent or suspend the prosecution by marriage, if such
marriage can be legally solemnized. Pen. Co. (18\7.) 126.
3. If any person shall commit incestuous fornication or adultery,
or intermarry within the degrees of consanguinity or affinity, es-
tablished by law, he or she shall, on conviction, be sentenced to
undergo an imprisonment in the penitentiary, for a period of time
not exceeding two years. Ib. See Lewdness.
AFFIRMATION.
Any person or persons who shall appear in any of the courts of
judicature, or before any judge, or magistrate, 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
matte^ 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 ans\Ver at the great and awful day of judgment
that, (as the case may be,) so help me God." Such solemn and
conscientious declaration and affirmation shall be deemed, held,
adjudged and taken to be valid and effectual to all intents, con-
structions, and purposes whatever, in the same manner as if such
person had taken an oath on the holy evangelist of Almighty God.
M. & C. 391.
In all cases where persons choose to affirm, the usual practice
is, for the person affirming to raise his hand, and to have the oath
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."
AFFRAY.
AFFRAY.
I. What is an Affray.
II. Hozu far it may be suppressed by a private Person,
III. How far by a Constable.
IV. How far by a Justice of the Peace.
V. Punishment of an Affray.
VI. Precedents of Warrants, &c. against Affrayers+
I. What is an Affray.
1. Affray is derived from'the French word effrayer, to affright;
and it formerly meant no more ; as where persons appeared with
armour or weapons not usually worn, to the terror of others ; but
now
2. Affrays are the fighting of two or more persons in sdme public
place, to the terror of the citizens, and great disturbance of the
public tranquility. Pen. Co. (1817) 123.
3. From whence it seemeth evidently to follow, that there may
be an Assault, which will not amount to an affray; as where it
happens in a private place, out of the hearing or seeing of any,
except the parties concerned ; in which case it cannot be said to
be to the terror of the people. 1 Hawk. 134.
4. Also it is said that no quarrelsome or threatening words
whatsoever, shall amount to an affray j and that no one can justify
laying his hands on those who shall barely quarrel with angry
words, without coming to blows ; yet it seemeth, that the consta-
ble may, at the request of either party threatened, carry the person
who threatens to beat him, before a justice in order to find sure-
ties. 1 Hawk. 135.
II. How far it may be suppressed by a private Person.
1. It seems agreed, that any one who sees others fighting may
lawfully part them, and also stay them till the heat be over, and
then deliver them to the constable, to be carried before a justice,
to find sureties for the peace. 1 Hawk. 136.
2. And the law doth encourage him hereunto ; for if he re-
ceives any, harm by the affrayers, he shall have his remedy by law
against them ; and if the affrayers receive hurt by endeavouring
6
AFFRAY.
only to part them, the standers by may justify the same, and the
affrayers have no remedy by law. 3 Inst. 158.
3. But if either of the parties be slain, or wou tiled, or so
stricken that he falleth down for dead; in that case the standers
by ought to apprehend the party so slaying, wounding, or striking,
or so endeavouring the same by hue and cry, or else for his escape
they shall be fined and imprisoned. 3 Inst. 158.
III. How far by a Constable.
1. The power of a constable, as a peace officer, is derived from
the common law of England ; and although as a part of the com*-
mon law, the doctrine relating to that subject, is entitled to a place
in this work, yet few instances I believe, have occurred in this
state, where the same latitude of power as exercised in England,
has been attempted. For more of the power and duty of consta-
ble, see title " Constable."
2. It seems agreed, that a constable is not only empowered, as
all private persons are, to part an affray which happens in his pre-
sence, but is also bound at his peril to use his best endeavours to
effect this purpose j and not only to do his best endeavours himself,
but also to demand the assistance of others, which if they refuse
to give him, they are punishable with fine and imprisonment.—
1 Hawk. 137.
3. And it is said, that if a constable see persons either actually
engaged in an affray, as by striking or offering to strike, or draw-
ing their weapons, or the like, or upon the very point of entering
upon an affray, as where one shall threaten to kill, wound, or beat
another, he may either carry the offender before a justice to find
sureties for the peace, or he may detain him of his own authority
. for a reasonable time, till the heat shall be over, and also after-
wards detain him till he finds such surety by obligation i But it
seems, that he lias ho power to imprison such an offender in any
other manner, or for any other purpose ; for he cannot justify the
committing an affrayer to jail, till he shall be punished for his of-
fence: And it is said, that he ought not to lay hands on those,
who barely contend with hot words, without any threats of per-
sonal hurt, and that all he can do in such case, is to command
them under pain of imprisonment to avoid fighting. 1 Hawk. 137.
4. But he is so far intrusted with a power over all actual affrays,
that though he himself is a sufferer by them, and therefore liable
AFFRAY. t
to be objected against as likely to be partial in his own cause, yet
he may suppress them ; and therefore, if any assault be made upon
him, he may not only defend himself, but also detain the offender,
in the same manner as if he were no way a party. 1 Hawk. 137.
5. And if an affray be in a house, the constable may break open
the doors to preserve the peace ; and if affrayers fly to a house,
and he follow with fresh suit, he may break open the doors to take
them. 1 Hawk. 137.
6. But it is said that a constable hath no power to arrest a man
for an affray done out of his own view, without a warrant from a
justice, unless a felony was done or likely to be done ; for it is the
proper business of a constable to preserve the peace j not to pun-
ish the breach of it. 1 Hawk. 137.
IV. How far by a Justice of the Peace.
1. There is no doubt but that a justice of the peace may and
must do all such things to that purpose, which a private man or
constable are either enabled or required by the law to do: But it
is said, that he cannot without a warrant authorise the arrest of
any person for an affray out of his own view j yet it seems clear,
that in such case he may make his warrant to bring the offender
before him, in order to compel him to find sureties for the peace.
1 Hawk. 137.
V. Punishment of an Affray.
1. All affrays in general are punishable by fine and imprison-
ment. 1 Hawk. 138.
2. Persons so offending shall be indicted, and, on conviction,
shall be fined or imprisoned in the common jail of the county, or
both,—and it shall be considered as a great aggravation of this
offence, if any contempt or disobedience of the magistrate or other
public officer commanding the peace, shall be proven. Pen. Co.
123, (1817.)
VI. Precedents of Warrants, £?c. against Affrayers.
1. Upon complaint made to a justice of the peace, he may issue
his warrant to apprehend the offender j but if it be upon the appli*
8
AFFRAY.
cation of any particular person, the party applying should first make
the following affidavit.
Georgia, 1 Personally came before me Robert Keeppeace,
Clarke County, J one of the justices of the peace for said county,
John Doe, who being duly sworn, deposeth and saith, that on the
tenth day of June, in the year eighteen hundred and eighteen,
Richard Roe and Charles Smith of said county, at the town of
Jefferson, in the county aforesaid, in a tumultuous manner made
an affray wherein the person of the deponent was beaten and abu-
sed by them the said Richard Roe and Charles Smith without any
lawful provocation given to them or either of them by deponent.
John Doe,
Sworn to and subscribed before me this txuentieth "1
of June eighteen hundred and eighteen. J
Robt. Keeppeace, J. P.
1 To any lawful officer to execute and return.
Clarke County, J
Whereas John Doe of the county aforesaid hath this day made
oath before me that on the tenth day of June in the year eighteen
hundred and eighteen, Richard Roe and Charles Smith of said
county at the town of Jefferson in the county aforesaid, in a tumul-
tuous manner made an affray wherein the person of the said John
Doe was beaten and abused by them the said Richard Roe and
Charles Smith, without any lawful provocation given to them or
either of them by him the said John Doe: These are therefore
to command you forthwith to apprehend the said Richard Roe and
Charles Smith, and bring them before me or some other justice of
the peace for said county, to be dealt with as the law directs:—
Hereof fail not, and have you then and there this warrant.
Given under my. hand and seal this the twentieth day of June,
in the year eighteen hundred and eighteen.
Robert Keeppeace, J. P. (L. S.)
When the offender is apprehended by this warrant, and brought
before the justice, he may admit him to bail, on due consider-
ation of the nature and circumstances of the case. See title
" Bailr
The sum in which the offender and his securities should be
bound is left to the discretion of the magistrate ; but it should be
AFFRAY.
9
recollected, that excessive bail should in no instance be required,
from the express letter of the constitution.
If the offender be bound over to court, the following is the form
of the recognizance, to wit:
Georgi
na "| Know all men by these presents that we
ni , 1 ' j* Richard Roe, Charles Smith, John Stiles, and
Clark county. \ > » J '
J Jacob Saunders, ol the county aforesaid, do ac-
knowledge ourselves held and firmly bound unto his excellency
the governor for the time being, of the state of Georgia, and his
successors in office, in the just and full sum of five hundred dol-
lars, for the payment of which we bind ourselves jointly and seve-
rally, our heirs, &c. firmly by these presents. Sealed with our
seals, and dated this the twentieth day of June, in the year eigh-
teen hundred and eighteen.
The condition of this recognizance is such that if the above
bound Richard Roe and Charles Smithy shall personally appear at
the next superior court to be held in and for the county of Clarky
on the third Monday in September next, to answer such matters
as shall then and there be charged against them by John Doe of
said county, concerning the assaulting, beating, and wounding of
him the said John Doe, by them the said Richard Roe and Charles
Smith, and concerning other misdemeanors tending to a breach cff
the peace, and if they do not depart withput leave of the court,
then this recognizance to be void, else to remain in full force- and
virtue.
Signed, sealed, ar^d acknowledged in"! Richard Roe, (L.S.)
presence of S Charles Smith, (L.S.)
Robert Keep peace, J. P. John Stiles, (L. S.)
Jacob Saunders, (L. S.)
If the offender when brought before the justice refuses to enter
into a recognizance, or is unable to give security, he must be forth-
with committed to jail by such justice.
FORM OF THE COMMITMENT.
Georgia, 1 To the sheriff of Clark county, or keeper of
Clark county. J the jail of said county.
B
10
AFFRAY.
These are, in the name of the state, to command you to receiv e
into the jail of said county the bodies of Richard Roe and Charles
Smith, taken by my warrant and brought before me, being cliarg-
ed upon oath, by John Doe of said county, with assaulting, beat-
ing and wounding him the said John Doe, in an affray by the said
Richard Roe and Charles Smith, lately made on the tenth of June
last past, at the town of Jefferson, in the county aforesaid :
And that you safely keep them in your said jail and custody, un-
til they be thence discharged by due course of law.
Given under my hand and seal, this the twentieth day of
June, in the year eighteen hundred and eighteen.
Robert Keeppeace, J. P. (L. S.)
Appeals. See Justices of the Peace.
APPRENTICES.
I. Who may be bound Apprentices.
II. By whom they shall be bound.
III. The manner in which they shall be bound.
IV. Duties of Alaster and Apprentice.
V. Precedents.
I. Who may be bound Apprentices.
1. Poor orphans, bastards, and poor children, their father living
II. By whom they shall be bound.
1. Where it shall appear to the Court*of Ordinary, that the an-
nual profits of the estate c>f 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 may direct, and shall cause such ap
APPRENTICES.
11
prentice to be taught to read and write the English language, and
the usual rules of arithmetic. And in all cases where it shall ap-
pear 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.. M. &
C. 226.
Although by the above law, the power of the Court of Ordi-
nary to bind apprentices, seems to be confined to orphans, and
there is no where among our laws an express authority given them
in any other case, yet the binding out of 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, $he
performance of which the good order of society, and the future
welfare of the child have a right to demand.
III. The manner in xvhich they shall be bound.
1. One cannot be bound an apprentice without deed. 1 Salk.
68.
2. An apprentice must be retained by the name of an appren-
tice expressly, otherwise he is no apprentice, though he be bound.
Dalt. c. 58.
3. By the common law, persons under the age of 21 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 customary for the parent, or friend to
become party to the indenture in their behalf. Bac. Abr. Mas-
ter and Servant.
4. But if his father or other person doth covenant for him, such
covenant shall bind the father or such other person, as in the case
«f Whitley 'and Loftus. In the indenture of apprenticeship, the
father covenants to pay the apprenticeship money -r the son cove-
nants to account for his master's goods ; and in the conclusion,
the father and son each bind themselves for the true performance
of all covenants therein. By the court: the end of binding the fa-
ther 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,
12
APPRENTICES.
where the son is hound to perform the thing for w hich the co\ e-
nant was made, and this clause is usually inserted, that the cove-
nants may be taken distributively, to wit, that each of the cove-
nantors should perform his part; and this makes the covenant of
the son bind the father, who covenanted for him as well as for
himself. 8 Mod. 190.
5. So, in the case of Branch and Ewington, Dug. 500, it was
held by lord Mansfield, in an action by the master against the fa-
ther of the apprentice, bound by indenture in the common form,
that the father was liable for the elopement 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.
6. And as the infant may be bound by indenture, so the ap-
prenticeship may be determined'by consent of all the parties con-
cerned ; which in the case of parish poor children, includes the
parish officer; in other cases the father, or guardian, master, and
infant. Barrow's Settlement, cases 562. 760.
7. But a covenant between the master and a third person, the
infant not being party, maketh not an 'apprenticeship. 2 Salk.
479.
IV. Duties of master and apprentice.
1. Besides the express covenants usually inserted in indentures
of apprenticeship, which the master and apprentice are mutually
bound to perform, there exist other relations between them, which
deserve to be noticed.
2. Thus a master may by law chastise, and correct his appren-
tice, for neglect or other misbehaviour, so it be done with mode-
ration. 1 Blacks. 428.
3. 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.
4. So, it was adjudged that a master could not compel his ap-
prentice to go beyond sea, if he did not go with him, unless the
nature of the apprenticeship imported it; as if the master was a
mariner, or merchant adventurer. Brown. 67. Hob. 134.
APPRENTICES.
o. It seems now to be settled that an apprenticeship b^ing 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
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 Burjield. In debt on a bond
conditioned for Mathias Anderson's performance of the covenants
in an indenture of apprenticeship, whereby he was bound to' the
plaintiff's testator, who was a mariner j the defendant pleaded that
Anderson served faithfully to the death of the testator. The plain-
tiff replied that since the death of the testator, Anderson had ab-
sconded from her services. To this replication ^he defendant de-
murred. 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 confin.ed, so is the nature of the contract; for it is fiduciary,
and the apprentice is bound from a personal knowledge of the
integrity and ability of the master.
If an apprentice flee from his master's service and gain money
by the same, or a different occupation, the master is entitled to re-
ceive it. 1 Vezey. 83. Enticing away an apprentice from his mas-
ter 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, Whibh
he may well maintain. 6 Mod. 182. Burrow. 1306.
V. Precedents.
See the forms among Executors and Administrators.
14
ARRAIGNMENT.
ARRAIGNMENT.
When an offender comes into court, or is brought in by process,
sometimes by capias and sometimes by habeas corpus, directed
to the jailor of another prison, the first thing that follows there-
upon is his arraignment. 2 H. H. 216.
Arraignment is nothing else but calling the offender to the bar
of the court, to answer the matter charged upon him. 2 H. H.
216.
There is no necessity for a prisoner, at the time of his arraign-
ment, to hold up his hand at the bar, or be commanded so to do j
for this is only a ceremony for making known the person of the
offender to the court; and if he answers that he is the same per-
son it is all one. 2 Hawk. 308. ,
Accordingly this ceremony was dispensed with in the case of
the King and Radcliffe. See 1 Blacks. Rep. 3.
No person indicted, unless it be for a felony or for an offence
whiph may subject him, on conviction, to imprisonment in the
penitentiary for the term of three years, shall be put for his arraign-
ment in the bar-dock or other place set apart in a court room for
the arraignment of criminals. Potts. 135.
Every person charged with a felony, or any offence which may
subject him, on conviction, to an imprisonment in the penitentiary
for the term of three years, shall be furnished, previous to his
arraignment, with a copy of the indictment, and a list of the wit-
nesses who gave the testimony before the grand jury. Id.
Upon the arraignment of a prisoner, it shall be sufficient, with-
out complying with any other form, to declare orally, by himself
or herself, or his or her counsel, that he or she is not guilty, which
declaration or plea, shall be immediately put upon the minutes of
the court by the clerk, and the mention of the arraignment and
such declaration and plea, shall constitute the issue between the
prisoner and the people of this state : and if the clerk should ne-
gleet to insert in the minutes the said arraignment and plea, it
may and shall be done at any time by order of the court, and
then the error or mistake of the clerk shall be cured. Ib.
The plea of " not guilty," recorded on the indictment for any
offence which does not require the formality of an arraignment,
shall be deemed sufficient to constitute the issue between the pri-
soner and the people of this state ; and if the attorney or solicitor
ARREST.
IX
general, or other person prosecuting in behalf of this state, shall
neglect to have said plea recorded, it may at any time, during or
after the trial, be ordered to be done by the court, and such order
shall cure the error or defect. Ib.
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 pri-
soner or other circumstances may" appear to render it more con-
venient 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 court-room for
criminals, the court may grant the indulgence of removing the
prisoner to any other place in said court-room, or contiguous to
it, requested by the prisoner or his or her counsel. Ib.
ARREST.
I. What is an Arrest.
II. Who may or may not be arrested.
III. For what causes of suspicion an Arrest may be.
IV. By whom an Arrest shall be made.
V. The manner of an Arrest.
VI. What is to be done after the Arrest.
I. What is an Arrest.
An arrest signifies the restraint of a man's person, depriving him
of his own free will and liberty, and binding him to become obe-
dient to the law ; and it may be called the beginning of imprison-
ment. Lamb. 93.
II. Who may or may not be arrested.
No person shall be freed from arrests for treason, felony or
breach of the peace. 4 Inst. 24, 25.
The senators and representatives of the United States shall in
all cases, except treason, felony, and breach of the peace, be privi-
leged from arrest, during their attendance at the session of their
16
ARREST.
respective houses, and in going to and returning from the same.
Const. U. S. Sec. 6. Art. 1.
No senator or representative shall be liable to be arrested dur-
ing his attendance on the general assembly, or for ten days previ-
ous to its sitting, or for ten days after the rising thereof, except
for treason, felony, or breach of the peace. M. & C. Dig. 22.—
1 Art. 14 Sec. Const.
That no civil officer -shall execute any writ or civil process what-
soever, upon the body of any person qualified to vote at any felec-
tion as aforesaid, either in his journey to, or return from, or dur-
ing his stay there upon that account, under a penalty not exceeding
five hundred dollars; Provided, he shall not be more than four
days on his journey going to, returning from, and stay at the place
for holding said election. M. & C. 200.
All witnesses going to, attending on, and returning from any of
the said courts, shall be free from arrest on any civil process. M.
& C. 294.
* In cases of corporations the process is by a distringas, for
they cannot be arrested. 3 Salk. 46.
All arrests in civil cases on the Sabbath-day are void. See
Sabbath.
III. For xuhat causes of suspicion an Arrest may be.
By the statute, of 34 Ed. 3. C. 1. power is given to the justices
of the peace, to arrest all those whom they find by indictment, or
by suspicion, and to put them in prison. And the causes of suspi-
cion, which are generally agreed to justify the arrest of an inno-
cent person for felony, are as follow:
1. The common fame of the country, though it seems that it
ought to appear upon evidence, in an action brought for such ar-
rest, that such fame had some probable ground. 2 Haw. 76.
2. The being found in such circumstances as induce a strong
presumption of guilt, as coming out of a house wherein murder
hath been committed, with a bloody knife in one's hand; or being
found in possession of any part of goods stolen, without being
* The persons of the militia are free from arrest and process in all civil cases,
while going to, continuing at, or reluming from musters, and while in actual
service. Acts 1818, 72.
ARREST.
17
able to give a probable account of coming honestly by them. 2
Haw. 76.
3. The behaving one's self in such a manner as betrays a con-
sciousness of guilt, as where a man accused of felony, on hearing
that a warrant is taken out against him, doth abscond. 2 Haw. 76.
But the party who flies from an arrest for a capital offence is
not thereby guilty of a capital offence. 2 Haw. 122.
4. The being found in company with one known to be an offen-
der at the time of the offence, or generally at other times keeping
company with persons of scandalous reputation. 2 Haw. 76. 2
Inst. 52.
5. The living an idle, vagrant, and disorderly life, without hav-
ing any visible means to support it. 2 Haw. 76.
6. The being pursued by huh and cry. 2 Haw. 76.
For if a felony is done, and one is pursued upon hue and cry,
that is not of ill fame, suspicious, unknown nor indicted, he may
be attached and imprisoned by the law> of the land.- 2 Inst. 52.
But generally no such cause of suspicion as any of the above-
mentioned will justify an arrest, where in truth no such crime
hath been committed, unless it be in the case of hue and cry. 2
Haw. 76.
In the case of Samuel against Payne and others, (Doug. 345)
the plaintiff Samuel brought an action of trespass and false impri-
sonment against Payne a constable and two others, the facts were
these : Hall, one of the defendants, charged the plaintiff with hav-
ing stolen some laces from him which he said were in the plain-
tiff's house. A search warrant was granted by a justice upon this
charge, but there was no warrant to apprehend him. On the
search, the goods were not found, however, Payne, Hall, and the
other defendant, an assistant of Payne, arrested the plaintiff and
carried him before a magistrate, who upon examination discharge
ed him. The cause was tried before lord Mansfield, and a ver-
diet found against all the three defendants. At the trial, the court
and counsel on both sides looked upon the rule of law to be, that
if a felony hath actually been committed, any man, upon reasona-
ble and probable grounds of suspicion, may justify apprehending
the suspected person to carry him before a magistrate, but that, if
no felony has been committed, the apprehending of a person sus-
pected, cannot be justified by any one. The court therefore left it
to the jury to consider whether any felony had been committed.
The rule, however, was considered as inconvenient and narrow,
C
u
ARREST.
because if a man charges another with felony, and rcquues an ol~
ficer to take him into custody, and carry him before a magistrate,
it would be most mischievous that the officer should be bound first
to try, and at his peril exercise his judgment on the truth of the
charge. He that makes the charge should alone be answerable.
The officer doth his duty in carrying the accused before a magis-
trate, who is authorised to examine, and commit or discharge. On
this ground, a motion was made for a new trial; and, after cause
shewn, the court heldf that the charge was a sufficient justification
to the constable, and his assistant, and the rule for a new trial was
made absolute. On which new trial a verdict was found against
Hall, and for the other two defendants.
For any crime or offence against the United States, any justice
of the peace may issue his warrant against the offender in the
usual mode, and cause him to be arrested, and imprisoned or bail-
ed, as the case may be, for trial before such court of the United
States as shall have cognizance of the offence; but if the punish-
ment be death, the justice has no authority to bail. Laws U. S.
vol. 1, p. 72,
IV. By 7vhom an Arrest shall be made.
In criminal cases, a person may be apprehended .and restrained
of his liberty, and not only by process out of some court, or war-
rant from a magistrate, but frequently by a constable, watchman,
or private person, without any warrant or precept.
Thus, all persons who are present when a felony is committed,
or a dangerous wound given, are bound to apprehend the offen-
der, on pain of being fined and imprisoned for their neglect. 2
Haw. 74.
Also every private person is bound to assist an Officer demand-
ing his help, for the taking of a felon, or the suppressing of an
affray. 2 Haw. 75.
Also a watchman may arrest a night-walker, without any war-
Kant from a magistrate. 2 Inst. 52.
In like manner a constable may, ex officio, arrest a breaker of
the peace in his view, and keep him in his house, or in the stocks,
till he can bring him before a justice. 1 H. H. 587.
Or any person whatsoever, if any affray be made to the breach
of the peace, may, without any warrant from a magistrate, restrain
any of the offenders, to the end the peace may be kept; but after
ARREST.
1§
the affray is ended, they cannot be arrested without an express
Warrant. 2 Inst. 52.
So much concerning an arrest without a'warrant; next follow^
arresting with such warrant.
The warrant is ordinarily directed to the sheriff or constable,
and they are indictable, and subject thereupon to a fine and im-
prisonment, if they neglect or refuse it. 1 H. H. 581.
If it be directed to the sheriff, he may command his under-
sheriff, or other sworn or known officer, to serve it, without writ-
ing any precept; but if he will command another man, that is no
such officer, to serve it, he must give him a written precept, other-
wise false imprisonment will lie. Lamb. 89.
But every other person to whom it is directed, must personally
execute it; yet it seems that any man may lawfully assist him*
2 Haw. 86.
If a warrant be. generally directed to all constables, no one can
execute it out of his own precinct j for in such case it shall be
taken respectively to each of them within their several districts,
and not to one of them to execute it within the district of another;
but if it be directed to a particular constable, (Mr Hawkins says
to a particular constable by name,) he may execute it any where
within the jurisdiction of the justice, but is not compellable to exe-
cute it out of his own constablewick. Lord Raym. 546.1 H.H.
581. 2 H. H. 110. 2 Haw. 86.
The justice that issues the warrant may direct it to a private
person if he pleaseth, and it is good ; but he is not compellable
to execute it, unless he be a proper officer. 1 H. H. 581.
But by the justice's oath, the warrant ought not to be directed
to the party, but to some indifferent person to execute it.
If a warrant is directed to two or more jointly, yet any one of
them alone may execute it. Dalt. c. 169.
V. The manner of an Arrest.
The officer to whom a warrant is directed and delivered, ought,
with all speed and secrecy, to find out the party, and then to exe-
cute the warrant. Dalt. c. 169.
It is certainly an offence of a very high nature to oppose one
who lawfully endeavours to arrest another for treason or felony;
and it seems, that the person who so opposes an arrest for treason,
whereof he knows the party to have been guilty, is thereby guilty
20
ARREST.
of the treason ; and that he who so opposes an arrest for felon),
is an accessory to the felony. 2 Haw. 121.
If any person shall knowingly and wilfully obstruct, resist or op-
pose any sheriff, coroner, or other officer of this state, or other
person duly authorised, in serving or attempting to serve or exe-
cute, any lawful process, or order of any court, judge, justice or
arbitrators, or any other legal process whatever, or shall assault
or beat any sheriff, coroner, constable or other officer, or person
duly authorised, in serving, or executing any process or order
aforesaid, or for having served or executed the same ; every per-
son so offending, shall, on conviction,be imprisoned in the common
jail of the county, for any time not exceeding one year, as the
•court may order and direct: provided, any officer whatever that
may or shall assault or beat any individual, under colour of his
commission, without a lawful necessity to do so, shall, on convic-
tion, be imprisoned in the common jail of the county for any time
not exceeding one year, as the court may order and direct. P.
C. 118.
An arrest in the night is good, both at the suit of the state, and
of the subject; else the party may escape. 9 Co. 66.
Constables and others may, on having the warrant endorsed by
a justice in another district or county into which an offender shall
have escaped, arrest an offender in such other district or county,
and carry him before the justice who endorsed the warrant, or
some other justice or justices of such other district or county, if
the offence is bailable, to find bail j or else shall carry him back
again before a justice in the district or county from whence the
warrant did first issue.
A private person cannot raise power to arrest or detain a felon.
1 H. H. 601.
But any justice, or the sheriff, may take of the district or county
any number that he shall think meet, to pursue, arrest and im-
prison traitors, murderers, robbers, and other felons j or such as
do break, or go about to break or disturb the peace, and ever)
man being required ought to assist and aid them, on pain of fine
and imprisonment. Dalt. c. 171.
But it is not justifiable for a justice, sheriff or other officer ta
assemble the posse comitatus, or raise a power or assembly of peo-
pie, upon their own heads, without just cause. Dalt. c. 171.
And in such case it is referred to the discretion of the justice,
sheriff, or other officer, what number they will have to attend on
ARREST.
them, and how, and after what manner, they shall be armed or
otherwise furnished. Dalt. c. 171.
As to the case of breaking open doors, in order to apprehend
offenders, it is to be observed, that the law doth never allow of
such extremities, but in case of necessity ; and therefore, that no
one can justify the breaking open another's door to make an arrest^
unless he first signify to those in the house the cause of his com-
ing, and request them to give him admittance. 2 Haw. 86.
But where a person authorised to arrest another, who is shel-
tered in a house, is denied quietly to enter into it, in order to
take him, it seems generally to be agreed, that he may justify the
breaking open the doors in the following instances:
1. Upon a warrant grounded on an indictment for any crime
whatsoever, or upon a warrant to compel a man to find sureties
for the peace or good behaviour.
2. Where one is known to have committed a treason or felony,
©r to have given another a dangerous wound, is pursued either
with or without a warrant, by a constable or private person, and
upon a warrant, for probable cause of suspicion of felony, the per-
son to whom such warrant is directed may break open doors to
take the person suspected, if upon demand he will not surrender
himself, as well as if there had been an express and positive charge
against him.
And as he may break open such person's own house, so much
more may he break open the house of another, to take him; for
so the sheriff may do upon a civil process ; but then he must at
his peril see that the felon be there j fpr if the felon be not there,
he is a trespasser to the stranger whose house it is. 2 H. H. 117.
But it seems that he that arrests as a private man barely upon
suspicion of felony, cannot justify the breaking open of doors to
arrest the party suspected, but he doth it at his peril: that is, if
in truth he be a felon, then it is justifiable, but if he be innocent,
but upon a reasonable cause suspected, it is not justifiable. 1 H.
H. 82.
But a constable in such case may justify, and the reason of the
difference is this ; because that in the former case, it is butathing
permitted to private persons to arrest for suspicion, and they are
not punishable if they omit it, and therefore they cannot break
open doors j but in case of a constable, he is punishable iThe
Omit it upon complaint. 2 H. H. 92.
"3. Upon a warrant from a justice of the peace, to find sureties
22
ARRES'l.
for the peace or good behaviour. 2 Haw, 86. 1 H. If. 582. 2 H
H. 117.
And in general, Mr. Dalton says, an officer upon any warrant
from a justice, either for the peace or good behaviour, or in any
case where the state is party, may by force break open a man's
house to arrest the offender. Dalt. c. 169.
4. On a warrant to search for stolen goods the doors may be
broke open, if the goods are there ; and if they are not there, the
constable seems indemnified, but he that made the suggestion is
punishable. 2 H. H. 151.
5. On the warrant of a justice of the peace for the levying of a
forfeiture, in execution of a judgment, or conviction for it, ground-
ed on any act of the legislature* which gives the whole or any part
of such forfeiture to the state, 2 Haw. 86.
6. Where an affray is made in a house, in the view or hear-
ing of the constable, he may break open the doors to take them.
1 Haw. 137. 2 Haw. 87.
7. If there be disorderly drinking or noise in a house, at an
unseasonable time of night, especially in inns, taverns, or ale
houses, the constable, or his watch, demanding entrance, and
being refused, may break open the doors to see and suppress the
disorder. 2 H. H. 95.
8. Wherever a person is lawfully arrested for any cause, and
afterwards escapes, and shelters himself in an house. 2 Haw. 87.
9. But upon a general warrant, without expressing any felony
or treason, or surety of the peace, the officer cannot break open a
door. 1H.H. 584.
10. In a civil suit, the officer cannot justify the breaking open
an outward door or window in order to execute process ; if he
doth, he is a trespasser : but if he findeth the outward door open
and entereth that way, or if the door be opened to him from with-
in, and he entereth, he may break open the inward doors, if he
findeth that necessary in order to execute his process. Fos. 319.
For a man's house is his castle, for safety and repose to him-
self and family ; but if a stranger, who is not of the family, upon
a pursuit taketh refuge in the house of another, this rule doth
not extend to him, it is not his castle, he cannot claim the benefit
of sanctuary therein. Fos. 321. '
And it is always to be remembered that this rule must be con-
fined to the case of arrest upon process in civil suits only: foi
ARREST.
where a felony hath been committed, or a dangerous wound given,
or even where a minister of justice cometh armed with process
founded on a breach of the peace, the party's house is no
sanctuary for him: in these cases, the justice which is due to
the public, must supersede every pretence of private inconve-
nience. Ib.
11. Finally, in all these cases, if an officer, to serve any warrant,
enters into a house, the doors being open, and then the doors are
locked upon him, he may break them open in order to regain his
liberty. 2 Haw. 87.
If there be a warrant against a person, for a trespass or breach
of the peace, and he flies and will not yield to the arrest, or being
taken, makes his escape, if the officer kill him it is murder. 2 H.
H. 117.
But if such person,, either upon the attempt to arrest, or after
the arrest, assault the officer, to the intent to make his escape from
him, and the officer standing upon his guard kills him, this is no
felony j for he is not bound to go back to the wall, as in common
cases of se defendo, for the law is his protection, 2 H.H. 118.
But where a warrant issueth against a person for felony, and
either before arrest, or after, he flies and defends himself with
stones or weapons, so that the officer must give over his pursuit
or otherwise cannot take him, without killing him, if he kill him it
is no felony ; and the same law is, for a constable that doth it by
virtue of his office or on hue and cry. 2 H.H. 118^
But then there must be these cautions : (l) He must be* a law-
ful officer, or there must be a lawful warrant. (2) The party ought
to have notice of the reason of the pursuit, namely, because a war-
rant is against him. (3) It must^e a case of necessity, and that no
such a necessity as in the former case, where an assault is made
upon the officer ; but this is the necessity, namely, that he cannot
otherwise be taken. 2 H.H. 119.
But though a private person may arrest a felon, and if he fly so
as he cannot be taken without he be killed, it is excusable in this
case for the necessity; yet it is at his peril that the party be a
felon ; for if he be innocent of the felony, the killing (at least be-
fore the arrest) seems at least manslaughter; for an innocent per-
son is not bound to take notice of a private person's suspicion. 2
H. H. 119.
Killing a slave in the act of revolt, or when the said slave re-
sists a legal arrest, shall be justifiable homicide. P. C. 98.
24
ARREST.
A person sworn and commonly known, and acting within hib
own precinct, need not show his warrant; but he ought to acquaint
the party with the substance of it. 2 Haw. 85.
But if he acts out of his precinct, or is not sworn and common-
ly known, he must show his warrant, if demanded. 2 Haw. 85.
86. Otherwise the party may make resistance, and needs not to
obey it. Dalt. c. 169.
But if the constable has no warrant, but doth it by virtue of his
office, as a constable, it is sufficient to notify that he is a constable,
or that he arrests in the Stated name. 1 H. H. 583.
If the constable come unto the party, and require him to go be-
fore the justice, this is no arrest nor imprisonment. Dalt. c. 170.
For bare words will not make an arrest, without laying hold on
the person, or otherwise confining him; but if an officer comes
into a room, and tells the party he arrests him, and locks the door,
this is an arrest; for he is in custody of the officer. Salk. 79. 2
Haw. 129. Cases in time'of Lord Hardwick, 301.
It hath been holden, that if a constable, after he hath arrested
the party by force of a warrant, suffer him to go at large, upon
his promise to come again and find sureties, he captnot afterwards
arrest him by force of the same warrant; however, if the party
return, and put himself again under the custody of the constable,
it seems that it may be probably argued, that the constable may
lawfully detain him, and bring him before the justice, in pursu-
ance of such warrant; but in this the law doth not seem to be
clearly settled. 2 Haw. 81.
But if the party arrested do escape, the officer upon fresh suit
may take him again and again, so often as he escapeth, although
he were out of view, or that he sl^tll fly into another town or coun-
ty, or district. Dalt. c. 169.
The arrest, confinement, or detention of a person or a citizen,
by another, having no process, warrant, or legal authority to justi-
fy it, shall be punished by fine and imprisonment in the common
jail,of the county where the offence may have been committed, or
either, at the discretion of the court; and in all cases of an ag-
gravated nature, the court may order an imprisonment in the peni-
tentiary, for any term not longer than two years. P. C. 192.
VI. What is to be done after the Arrest.
When a private person hath arrested a felon, or one suspected
ARREST.
25
of felony, he may, with as much speed as he conveniently can, de-
liver him to a constable to carry to a justice of the peace, or he
may carry him there himself. 1 H. H. 589.
If the constable, or his watch, hath arrested affrayers, or per-
sons drinking in an ale-house, disorderly at an unseasonable time
of night, he may put the persons in the stocks, or in a prison, if
there be one in the place, till the heat of their passion or intern-
perance is over, though he deliver them afterwards ; or till he can
bring them before a justice. 2 H. H. 95.
If the arrest is by virtue of a warrant, when the officer hath
made the arrest, he is forthwith to bring the party according to
the direction of the warrant: if it be to bring the party before
the justice who granted the warrant, specially, then the officer is
bound to bring him before the same justice ; but if the warrant
be to bring him before any justice of the county or district, then
it is in the election of the officer to bring him before what justice
he thinks fit, and not in the election of the prisoner. 1 H. H. 582.
2H. H. 112.
But if the time be unseasonable, as in or near the night, whereby
he cannot attend the justice, or if there be danger of a present
rescue, or if the party be sick, he may secure him in the stocks or
in a house, till the next day, or such time as it may be reasonable
to bring him. 2 H. H. 120.
And when he hath brought him to the justice, yet he is in law
still in his custody ; till the justice discharge, or bail, or commit
him. 2 H. H. 120.
But it is said, the constable is not obliged to return the warrant
itself, but may keep it for his own justification, in case he should
be questioned for what he had done ; but only to return what he
has done upon it. Lord. Raym. 1196.
Arson. See Burning.
D
26
ARTICLES.
ARTICLES.
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 accord-
ing 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 contract, 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.
M. & C. 39.
ASSAULT AND BATTERY.
I. Assault, what.
II. Battery, what.
III. In what Cases they may be justified.
IV. How punished.
V. Precedent.
. I. Assault, what.
Assault, assultus, from the French assayler, is an attempt or
offer, with force and violence, to do a corporal hurt to another,
as by striking at him with or without a weapon j or presenting a
gun at him, at such a distance to which the gun will carry ; or
pointing a pitch-fork at him, standing within reach of it; or by
holding up one's fist at him j or by any other such like act, done
in an angry threatening manner. 1 Hawk. 133.
An assault is an attempt to commit a violent injury on the per-
son of another. P. C. 101. '
And from hence it clearly follows that one charged with an
assault and battery, may be found guilty of the assault and yet
ASSAULT AND BATTERY.
27
acquitted of the battery: but every battery includes an assault,
therefore on an indictment of assault and battery, in which the as-
sault is ill laid, if the defendant be found guilty of the battery it is
sufficient. 1 Hawk. 134. 263.
It seems agreed at this day, that no words whatever can amount
to an assault, notwithstanding the many ancient opinions to the
contrary. 1 Hawk. 134. 263,
II. Battery, what.
Battery, (from the Saxon batte, a club, or beatan, to beat, from
whence cometh also the word battle,) is, when any injury what-
soever, be it ever so small, is actually done to the person of an-
other, in any angry, or revengeful, or rude, or insolent manner,
as by spitting in his face, or any way touching him in anger, or
violently justling him out of the way, and the like. 1 Hawk. 134.
Battery is the unlawful beating of another. P. C. 101.
III. In xvhat Cases they may be justified.
A man may justify an assault in defence of his person, or
his wife, or master, or parent, or child within age ; and may
even xuound in defence of his person, though not of his posses-
sions. 3 Salk. 46.
If an officer authorized by warrant lay hands on another to ar-
rest him, or if a parent, in a reasonable manner, chastise his child,
a master his servant, a schoolmaster his scholar, or a jailor his
prisoner, or if one confine a friend by force, who is mad, or if one
wrests a sword from another who offers violence therewith, in all
those cases, and many others of a similar nature, it is justifiable.
1 Hawk. 130.
Also, if a person comes into my house, and will not go out, I
may justify laying hold of him and turning him out. 3 Blacks.
Com. 120.
So also, one may justify assaulting another who attempts to
force him from his water course, or highway, or any other legal
possession. Pult. 42.
And wherever a man, in his own defence, beats another who
first assaults him, he may take advantage thereof, both upon an
indictment, and in an action ; but with this distinction, that on the
28
ASSAULT AND BATTERY.
indictment he may give it in evidence upon the plea of not guilty f
but in an action he must plead it specially. 1 Hawk. 134.
IV. How Punished.
Persons guilty of this offence are'' punishable both by fine and
imprisonment, on a prosecution by indictment at the suit of the
state ; and also in damages, by action, at the 'suit of the party in-
jured. 1 Hawk. 134.
An assault, wTith intent to commit a rape, shall be punished by
imprisonment at hard labour in the penitentiary, for a term not
less than one year, nor longer than five years. P. C. 101.
A bare assault shall be punished by fine or imprisonment in
the c.mmoa iail of the county, at the discretion of the court.
P. C. #01.
An assault with an intent to murder, by shooting at or stabbing,
or using any weapon likely to produce death, shall be punished by
imprisonment at hard labour in the penitentiary, for a term not
less than one year nor longer than five years. P. C. 101.
All other assaults upon or attempts against persons, not men-
tioned or enumerated in this code, but heretofore indictable of-
fences, shall be punished by fine or imprisonment in the common
jail of the county, where the offence has been committed, at the
discretion of the court. P. C. 101.
Battery shall be punished by fine or imprisonment, or both, at
the discretion of the court, in the common jail of the county where
the offence may have been committed, and in aggravated cases, re-
quiring greater severity, the court may punish the offender by
an imprisonment in the penitentiary at hard labour, for any term
not less than six months nor longer than one year. P. C. 101.
V. Precedents.
The following is the Commencement of Proceedings in issuing a
Warrant.
Georgia, "i Before me a justice of the peace for said coun-
Clarke County, j ty, personally came John Doe, who being duly
sworn, deposeth and saith, that Richard Roe of said county, on the
tenth dav of June, in the vear eighteen hundred and nineteen, at
ASSAULT AND BATTERY.
29
Watkinsmlle, in the county aforesaid, made a violent assault upon
deponent, and then and there beat him.
Sworn to and subscribed before me this Jirst ofl
July, eighteen hundred and nineteen. j J° n oe'
Robert Keeppeace, J. P.
Georgia, To any constable of said county, and to all
Clarke County, J lawful officers to execute and return.
Whereas complaint hath been made before me Robert Keep-
peace, one of the justices of the peace in and for the said county,
on the oath of John Doe, that RichardRo$ did on the tenth day of
June, eighteen hundred and nineteen, violently assault and beat
him the said John Doe, at Watkinsville, in the county aforesaid.
These are therefore to command you forthwith to apprehend the
said Richard Roe, and to bring him before me, or some other jus-
tice of the peace for the said county, to answer the said complaint,
and to be further dealt with according to law.
Given under my hand and seal this Jirst day of July, in the year
eighteen hundred and nineteen.
Robert Keeppeace, J. P. (L. S.)
When the executing officer returns the warrant to a justice of
the peace, he must enter his proceedings upon the warrant, if the
person named in the warrant is apprehended, the officer must en-
dorse on the warrant, " Executed the within warrant, by taking
the body of Richard Roe, who is in my custody."
If the justice believes the complaint to be well founded and pro-
perly supported, of which, to be the better able to judge, he ought
to hear the evidence on both sides, and if necessary to give reason-
able time to produce the evidence. He must bind over the offend-
ing party, to appear at the next superior court thereafter.
Form of Recognizance.
Georgia, ^ Know all men by these presents, that we,
Clarke County, J Richard Roe and Charles Smith, of the county
aforesaid, do acknowledge ourselves held and firmly bound unto
his excellency the governor, for the time being, of the state of
30
ASSAULT AND BATTERY.
Georgia, and his successors in office, in the just and full sum of
•five hundred dollars, for the payment of which, we bind ourselves,
jointly and severally, our heirs, &c. firmly by these presents, seal-
ed with our seals, afad dated the first day of July, in the year eigli-
teen hundred and nineteen.
The condition of this recognizance is such, that if the above
bound Richard Roe shall personally appear at the next superior
court, to be held in and for the county of Clarke, on the third
Monday in September next, to answer such matters as shall be then
and there charged against him by John Doe, concerning an as-
sault and battery, committed by him the £aid Richard Roe, on the
said John Doe, and do not thence depart without leave of said
court, then this recognizance to be void, or else to remain in full
force and virtue.
Signed, sealed and acknowledged "J Richard Roe. (L. S.)
in presence of J Charles Smith. (L. S.)
Robert Keep peace, J. P.
If the offender refuses to enter into a recognizance, or is una-
ble to give sufficient security, he must be forthwith committed to
jail.
Form of the Commitment.
Georgia, ") By Robert Keeppeace one of the justices as-
Clarke County, J signed to keep the peace in and for the said
county.
To John Baker one of the constables for the county aforesaid,
and to the keeper of the common jail in said county.
These are to command you in the name of the state, forthwith
to convey and deliver into the custody of the keeper of the said
jail, the body of Richard Roe, charged before me, on the oath of
John Doe, with having on the tenth day of June in the year eigh-
teen hundred and nineteen, at Watkinsville, in the cpunty aforesaid,
made a violent assault upon him the said John Doe, and then and
there beat him. And you the said keeper are hereby required to
receive the said Richard Roe into your custody in the said jail, and
him there safely keep until he be thence delivered by due course
of law.
ATTACHMENT. 31
Given under my hand and seal this the first day of July, in the
year eighteen hundred and nineteen.
Robert Keeppeace, J. P. (L. S.)
ATTACHMENT.
I. Laws regulating Attachments.
II. Form of issuing Attachments.
I. Laws regulating Attachments.
The act of 1799, declares, that in case of non-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 apd personal
which may be found in the state of such debtor, in the same man-
ner 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 supe-
rior, 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 the limits of this state, or any county, or absconds or con-
ceals himself, or stands in defiance of a peace officer, so that the
ordinary process of law cannot be served on him, to grant an at-
tachment against the estate of such debtor, or so much thereof as
shall be of sufficient value to satisfy jhe plaintiff's demand and
costs, which attachment shall be directed to and served by the
sheriff of the county 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 summon such person or per-
sons to appear at the next court to be held for the said county,
and to which the said attachment may be returnable, there to an-
swer 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 cpmpel
32
ATTACHMEN1.
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 de-
nial, and 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 security7 of the party
for whom the same may be granted in double the sum to be at-
tached, payable to the defendant, for satisfying and paying all costs
which may be incurred by the defendant, in case the plaintiff suing
out such attachment shall discontinue or be cast in his suit, and
also all damages which may be recovered 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 entitled to such costs and
damages may bring suit and recover thereon, and every attach-
ment 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 attachment
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 authorised to
serve the same, publicly advertised at the court-house 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 thirty7 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, chattels, lands, and tenements, subject to such
attachments, shall be repleviable by appearance and putting in
special bail, or by the defendant giving bond with good and suffi-
cient security to the sheriff or other officer serving the same, which
bond he is hereby empowered to take, compelling the defen-
dant to appear at the court to which such attachment shall be re-
turnable, and to abide by7 and perform the order and judgment
of such court: Provided always, That all goods and effects at-
ATTACHMENT.
lached and not replevied as aforesaid, where the same shall ap-
pear 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 supe-
rior, or any two or more of the justices of the inferior court, may
and are hereby authorised and required to order a sale of such
perishable property, and the monies arising from such sales shall
be deposited in the clerk's office by the sheriff or other officer sell-
ing the same, to answer the demands of the plaintiff (if establish-
ed), and the balance, if any, after satisfying such demands and
costs shall by order of the said court be returned to the defendant
or his attorney.
If any attachment shall be returned executed, and the property
attached shall not be replevied as aforesaid, the subsequent pro-
ceedings thereon shall be the same as an original process against
the body of the defendant where there is a default of appearance,
and all such goods and chattels, lands and tenements, not reple-
vied, shall, after the plaintiff has established his demand, be by
order of the court sold and disposed of, for, and towards the satis-
faction of the plaintiff's judgment, in like manner as if the same
had been taken under execution j and where any attachment be re-
turned, 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 monies 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.
Where an absent debtor hath property lying in different eoun-
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 ori-
ginal issued.
When the third persons as garnishees return debts due to the
absent debtor, the court shall order the same to be sued for, and
when recovered, paid into the clerk's office, subject to the order
of the court. TVI. 8c C. p. 39.
The act of 1799 is amended by the act of 1814, which declares
that when any sheriff or constable shall levy any attachment on
personal property, claimed by any person not a party to such at-
tachment, such person, his agent or attorney, shall make oath to
F.
34
ATTACHMENT.
such property—and it shall be the duty of such sheriff or consta-
ble to return the fact of such claim to the court to which the at-
tachment shall be made returnable—and such court shall cause an
issue to be joined between the plaintiff and such claimant, and the
right of property to be decided on by a jury at the same term,
unless sufficient cause be shown to induce the court to continue
the same : Provided, The person 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 to 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 adminis-
tered, 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 j and where the jury shall find the property not subject to
the attachment, the claimant may enter up judgment and have ex-
ecution against the plaintiff for the costs by him incurred in esta-
blishing his claim.
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 situate ; and in all eases 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
situate.
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 serv ing such attachment; and
when any garnishee shall return that he has in his hands a note
or notes, bond or bonds, or other evidences of debt, belonging to
the absent debtor, the same shall be forthwith deposited writh the
clerk of the court in which the attachment is pending, subject to
the order of said court; ahd after the plaintiff shall have establish-
ed his demand against the absent debtor, the court may in its dis-
cretion direct the clerk to deliver to the plaintiff in such attach-
ATTACHMENT.
35
ment, his agent or attorney, 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 defendant, 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 appear, 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 de-
mand, 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 remaim subject to the future order of said
court.
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 follow-
ing—when a plaintiff in attachment shall die, the executor or ad-
ministrator of such plaintiff shall, within six months after the pro-
bate of the will and obtaining letters testamentary or obtaining
letters of administration, cause to be issued by the clerk of the
court in which such attachment is pending, a scire facias returna-
ble to the next term of the said court, giving notice of his inten-
tion to become a party in -the place and stead of the deceased tes^
tator or intestate, which shall be published at the door of the court
house 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 administrator 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 ex-
piration 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 in-
tention of the plaintiff to proceed with the same j which being pub-
lished in like manner, it shall be lawful for the plaintiff to proceed
writh his attachment as if such death had not taken place—Provi-
ded nevertheless, that the executor or administrator of the defend-
36
ATTACHMEN1.
ant may appear at the return of the scire facias, and upon giving «s r-
curity in terms of the act to which this is amendatory, shall be
permitted to plead and defend the said attachment in the same
manner that his testator or intestate might have done.
In cases of attachment pending injustice's courts, where either
party shall die, such attachments shall not abate, but a notice of
the intention of the representatives of the plaintiff, whether execu-
tor 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.
Where any witness resides out of the state, or out of the county
in which any attachment may be pending, and in which his testi-
mony may be required, it shall be lawful for the plaintiff, on filing
interrogatories in the office of the clerk of the court where such
attachment is pending, and publishing a notice at the door of the
court house of said county that such interrogatories are filed, to ob-
tain a commission in like manner as is prescribed bv the 23d
section of the judiciary act of 1/99, for taking testimony in other
cases. ,
In all cases the attachment first served shall be first satisfied.
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. Act 1814, p. 24.
The act of 1/99 is further amended by the act of 1816, which
declares, that every attachment hereafter sued out, the property at-
tached may be restored to the person or persons against whom the
attachment may have issued, upon the defendant or defendants
giving good and sufficient security to the officer serving the said
attachment, in double the debt or demand for which the said at-
tachment may have been issued and granted j or the said defend-
ant or defendants 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.
When a debt is not due, and the debtor or debtors is or are re-
moving, 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 state, an at-
tachment may issue against the property of such debtor or debtors,
ATTACHMENT.
but the defeudant may relieve his property , by giving to the credi-
tor good security to pay the money when due, and costs.
In all cases where an attachment may issue against any person
absent, that 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 person-
ally present to do it himself. Acts 1816, p. 41.
It is to be observed that there are five grounds upon which an
attachment may issue, to wit: 1. Where the debtor resides out
of the state. 2. Where he is actually removing out of the limits
of the state or any county. 3. When he absconds. 4. When
he conceals himself j and 5. When he stands in defiance of a
peace officer—Upon any one of these grounds an attachment may
issue, and the party praying the same must select the one applica-
ble to his case, and make oath thereof in the following manner.
Georgia, "j Before me Robert Catchum, a justice of the
Clarke County. J peace, personally came John Doe, who, being
duly sworn, deposeth and saith that Patrick Makescarce is justly
indebted to deponent the sum of one thousand dollars, and that the
said Patrick [is actually removing out of the limits of the state]
so that the ordinary process of law cannot be served upon him.
Sworn to and subscribed before me, this tenth of
(OlP The bond must be in double the amount of the debt.)
Georgia, *1 Know all men by these presents, that we John
Clarke County. J Doe and Richard Roe are held and firmly bound
unto Patrick Makescarce, his heirs and assigns, in the just and full
sum of two thousand dollars, for the true payment of which, we
bind ourselves, our heirs, executors and administrators, jointly and
II. Form of issuing Attachments.
June, eighteen hundred and eighteen.
Robert Catchum, J. P.
jForm of Bond.
oS
ATTACHMENT.
severally, firmly by these presents, sealed with our seals, and dated
this the tenth day of June, eighteen hundred and eighteen.
The condition of the above obligation is such, that whereas the
above bound John Doe hath this day prayed an attachment against
the said Patrick, which is now about to be sued out, returnable to
the next superior court to be held in and for the county aforesaid
—Now if the said John shall prosecute the same with effect at
said court, and shall satisfy and pay all costs which may be incur-
red by the said Patrick, in case the s^id John shall discontinue or
be cast in his suit, and also all damages which may be recovered
against the said John for suing out the same : then the above obli-
gation to be void, else to remain in full force.
Georgia, By Robert Catchum, a justice of the peace for
Clarke County. J said county.
To the sheriff of said county, or his deputy, or any lawful con-
stable thereof, greeting.
Whereas John Doe hath this day made oath before me, that Pa-
trick Makescarce, late of said county, is justly indebted to him the
sum of one thousand dollars, and that the said Patrick [is actual-
ly removing out of the limits of the state~\ so that the ordinary pro-
cess of law cannot be served upon'him, and the said John having
given bond and security in terms of the law in such case made and
provided.
I do therefore command you to attach the estate both real and
personal of the said Patrick, if to be found in your county, or so
much thereof, as shall be of sufficient value to satisfy the demand
and costs of the said John, and such estate so attached in your
hands to secure, to answer the complaint of the said John at the
superior court to be held on the third Monday in September next:
and also that you levy this attachment upon the said estate both
real and personal, either in the hands of any person indebted to, or
having effects of the said Patrick, and summon such person to ap-
pear at the court aforesaid, there to answer on oath, what he is in-
debted to, or what effects of the said Patrick he hath in hand, or
had at the time of levying this attachment, and that you advertise
Test,
John Doe. (L. S.)
Richd. Roe. (Z. S.)
Robert Catchum, J. P.
Form of the Attachment.
ATTAINDER.
39
your proceedings in tlie premises according to law. Hereof fail
not, and have you at said court this writ.
In testimony whereof I have hereunto set my hand and seal
this tenth day of June, eighteen hundred and eighteen.
Robert Catchum, J. P. (L. S.)
Summons for Garnishee.
Georgia, 1 You are hereby required personally to attend
Clarke County. J at the superior court to be held for said county,
on the third Monday in September next, to answer upon oath in an
attachment at the instance of John Doe vs. Patrick Makescarce,
what you are indebted to the said Patrick, or what effects you have
in your hands, or had at the time of levying said attachment, this
tenth of June, eighteen hundred and eighteen.
Jacob Moody, Constable.
Form of the Levy*
I have levied the within attachment upon a [Black Horse the pro-
perty of said Patrick] and have summoned William Careful as a
garnishee, and also have advertised my proceedings according to
law, this tenth day of June, eighteen hundred and eighteen.
Jacob Moody, Constable.
Advertisement.
All persons concerned are desired to take notice, that I have
this day levied an attachment, at the instance of John Doe vs.
Patrick Makescarce, on a \Bla.ck Horse the property of the said
Patrick] and have summoned William Careful, as a garnishee in
said case, the same being returnable to the next Superior Court,
for the county of Clarke—this tenth day of June, eighteen hun-
dred and eighteen.
Jacob Moody, Constable.
40
BAIL.
ATTAINDER.
The difference between a man attainted and convicted, is, that a
man is said to be convicted before he hath judgment, as if a man
be convicted by verdict or confession, and after judgment is
passed upon him upon the verdict or confession, then he is said
to be attainted.
No states shall pass any bill of attainder. Const, of the United
States, section X. art I.
No attainder of treason shall work corruption of blood, or for-
feiture, except during the life of the person attainted. Ib. sec. iii.
art 3.
No conviction or judgment shall work corruption of blood, or
any forfeiture of estate. Brown's Laws of the United States, sec.
xxiv. p. 131.
ATTORNEY.
An attorney is one who is appointed to do any thing in the
turn, stead, or place of another. 1 Inst. 51.
No person shall be debarred from advocating or defending his
cause before any court or tribunal, either by himself or counsel,
or both. M. & C. Dig. 29. Const, art. 3. sec. 8.
BAIL.
I. What it is.
II. Difference between Bail and Mainprise.
III. When a person may be discharged without Bail.
IV. Who may or may not be bailed.
V. Who may bail, and the manner of it.
VI. Requiring excessive Bail.
BAIL.
41
VII. Denying bail where it ought to be granted,
VIII. Granting bail where it ought to be denied.
IX. Of bail by writ of Habeas Corpus.
X. Precedents.
I. What it is.
Bail signifies the delivery of a man out of custody, upon the
undertaking of one or more persons for him, that he shall appear
at a day limited, to answer and be justified by the law. Hale's
Pleas, 96.
Bail should be freeholders, and not persons who are not attach-
ed to the country by holding land ; nor transient persons, and
such as own only personal property.
If any person shall acknowledge, or procure to be acknowledg-
ed, in any of the courts of this state, any recognizance, bail^ or
judgment, in the name of any other person, not privy or consent-
ing thereto; such person, on conviction, shall be imprisoned in the
penitentiary at hard labour or in solitude, for any period of time
not exceeding three years. P. C. 118.
II. Difference between Bail and Mainprise.
The difference between bail and mainprise is, that main-per-
nors are only surety ; but bail is a custody; and therefore the
bail may retake the prisoner, if they doubt he will fly, and detain
him, and bring him before a justice, and the justice ought to com-
mit the prisoner in discharge of the bail, or put him to find new
sureties. Hale's Pleas, 96.
III. When a person may be discharged without Bail.
If a person be brought before a justice, if it appears that no
felony is committed, he may discharge him : but if a felony be
committed, though it appears not that the party accused is guilty,
yet he cannot discharge him, but must commit or bail him. Hale's
Pleas, 98.
F
42
BAIL.
IV. Who may or may not be bailed.
By the ancient law of the land, in all cases of felony, if the par-
ty accused could find sufficient sureties, he was not to be commit-'
ted to prison. 2 Inst. 186. But it is provided, that no justice or
justices of the peace (by 1 and 2 P. and M. c. 13.) shall let to
bail, or mainprise, any person not repleviable by the 3 Ed. I. c.
15, by which it appears that the following persons are not baila-
ble.
Those who were taken for the death of a man ; and even if a
person who has dangerously wounded another, the justice ought
to be very cautious how he takes bail till the year and day be past;
for if the party die, and the offender appear not, he is in danger
of being severely fined. 1 Hawk. 138.
And this statute makes no distinction between such homicide
as is malicious, and that which happens by misadventure, or in
self defence,; and it seems agreed, that justices of the peace, who
have power at this day to bail a man arrested for a light suspi-
cion of homicide, cannot bail any such person for manslaughter,
or even excusable homicide, if it manifestly appear that he was
guilty of the fact, let it be ever so plain that it cannot amount to
murder. 2 Haw. 95. 105.
Those confined in gaol by matter of record in any of the courts,
are not bailable. 2 Haw. 96.
Such prisoners as before were outlawed for being attainted in
law by outlawry, they are not bailable ; for the intendment of
the law is, that the person slandeth indifferent, whether he be
guilty or not, and not if he be convicted or attainted. 2 Inst. 188.
Such as have abjured the realm ; for their own confession at-
taints them. 2 Inst. 188.
Approvers ; for they are guilty by their own confession. 2
Inst. 188.
Such as be taken with the manner; for the offence being mani-
fest, they stand not indifferent whether they be guilty or not. 2
Inst. 188.
Such as have broken prison : for it is presumed that he who is
innocent will never break prison; and flight is a confession of
the charge. 1 Inst. 188.
Thieves openly defamed and known, who, as it seems, ought
not to be bailed for any fresh felony, whereof there is probable
evidence against them. But this seems in a great measure to be
BAIL.
43
left to the discretion of the persoti who has power to bail them,
who, on consideration of the circumstances of the whole matter,
and the probabilities on both sides, if he finds it reasonable strong-
ly to presume them to be guilty, ought not to bail, but commit
them. 2 Haw. 99.
Such as be taken for house burning feloniously done. 2 Inst.
188.
Or for false money. 2 Inst. 188.
Or for counterfeiting the seal of the state.
Or for manifest offences ; which seems to be understood of ill-
ferior crimes of an enormous nature under the degree of felony ;
as dangerous riots, exorbitant rescouses, misprision of treason,
and such like heinous offences. Yet it seems to be in a great mea-
sure left to discretion, to judge in what cases their crimes are so
flagrant and enormous, that they ought not to have the benefit of
It. 2 Haw. 99.
For treason;—it appears, however, that any one justice of the
peace may let persons to bail in the following cases :
1. Where a person is accused of larceny, but on light sus-
picion; but if the suspicion is strong, or the defamation great,
the justices may refuse to bail him. Hale's PI. 102. But in
this case, it is expounded that he be of good fame. 2 Inst.
190.
2. For petty larceny, that amounteth not above the value of
twelve pence, if they were not guilty of some .other larceny
aforetime. This act divides larceny into two kinds ; grand lar-
ceny, when the thing stolen is above the value of twelve pence;
and petit larceny, when it is of the value of twelve pence or
under. 2 Inst. 189.
And it seems to be agreed, that there is no necessity that
such persons be of good fame ; yet upon the construction of
the whole statute, if such persons be taken with the manner,
or confess the fact, or their crime be otherwise open and ma-
nifest, it seems that they ought not to be bailed ; but if there be
any colour of probability for their innocence, it seems most
agreeable to the intention of the statute to bail them. 2 Haw.
101.
3. Accessaries after the fact.
4. Accessaries before the fact: But accessaries to felonies
are not to be bailed, unless they be of good reputation; And
it seepis at this day to be settled, that where there are strong
44
BAIL.
presumptions of guilt, such accessaries are not bailable by this
statute. 2 Haw. 102.
5. Such as are guilty of some other trespass, for which one
ought not to lose life nor member, but it seems reasonable to
qualify the generality of this expression with this limitation, that
such accusation ought to be either on a light suspicion, or else
that the offence be inconsiderable, or that it be not excluded from
bail by some special law. 2 Haw. 99. 2 H. H. 135.
6. If a justice take insufficient surety, and the party appear not,
he is finable by the judge of assize. H. P. 97. But if the prisoner
appear thereupon, the justice is safe. 2 Haw. 89.
And if a person who has power to take bail, be so far imposed
upon as to suffer a prisoner to be bailed by insufficient persons, it
is said, that either he, or any other person who hath power to hail
him, may require the party to find better sureties, and to enter into
a new recognizance with them, and may commit him on his refu-
sal; for that insufficient sureties are no sureties. 2 Haw. 89.
And the person who is to take the bail, may examine them on
their oaths concerning their sufficiency. 2 Haw. 89. 2 H. H.
125.
It is to be observed that the above statute extends only to bail
in criminal offences, and therefore gives no power at all to justices
of the peace to bail any persons or process in civil actions, or for
contempts to superior courts. 2 Haw. 106.
Although a person be committed to be detained without bail or
mainprize, yet if the offence be by law bailable, he that hath pow-
er of bailing may bail him. 2 H. H. 135.
In the above instances the bail required, refers to criminal cases,
the following is the manner of taking bail in civil cases:
That in all cases where bail is requirable, and the plaintiff in
any action shall require bail, such plaintiff shall make affidavit be-
fore any judge, justice of the inferior court, or justice of the peace,
within this state, or any judge or justice of a superior court of any
one of the United States, shall have annexed thereto the seal of the
state from whence it shall come, and a certificate of the governor cer-
tifying that the person taking such affidavit is one of the judges
or justices of a superior court of that state, of the amount claimed
by him, and that he has reason to apprehend the loss of the said
sum, or some part thereof, if the defendant or defendants is or are
not held to bail, which affidavit shall be filed in the clerk's office,
and copies thereof affixed to the original petition and process, and
BAIL.
45
to the -copy or copies thereof, and the amount sworn to shall be
endorsed on the petition and process.
That when any civil process shall issue out of any of the said
courts, whereby bail shall be required to be taken in manner afore-
said, 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 sufficient security or sureties, for double the sum sworn
to, and shall return such bond with the petition and process: and
in ease 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 said petition and process shall be returned, such
sheriff and other officer, and his or their security or securities in
cither of the said cases shall be deemed and stand as special bail,
and the plaintiff may proceed to judgment according to the provi-
sions of the act hereinafter mentioned. 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 np 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
persons shall be allowed all the benefits of appearance and defence,
as if he, she or they were personally present, and shall not be dis-
charged out of custody but by putting in bail, or by order of
court.
That all bail taken according to the directions of this act, shall
be deemed, held and taken as special bail, and as such be liable to
the recovery of the plaintiff, but the plaintiff, after final judgment,
shall not take out execution against such bail, until a capias ad
satisfaciendum shall be first issued thereon, and the principal can-
not be found, and shall also issue a scire facias, returnable to the
said court, which shall be served on the bail at least twenty days
before the return thereof; and after the return of such ca.sa. against
the principal, and scire facias against the bail, and judgment
thereon, execution may issue against the principal and bail, or
either of them, or either of their estates, unless the bail shall sur-
render the principal at or before entering up final judgment on the
scire facias, either in open court in term time, or to the sheriff of
the county in which such principal shall reside, at any time in va-
46
BAIL.
cation. And it shall be the duty of the court to order such prin-
cipal into the custody of the sheriff, and the duty of the sheriff in
time of vacation to receive into his custody such principal, and
in either case to Commit him, her or them to jail, according to
the directions of this act, any law, usage, or custom, to the con-
trary notwithstanding.
That when any scire facias issued according to the directions
of this act, shall be by the proper officer returned served, the bail
shall appear and answer, and the matter be tried at the first term
to which the scire facias shall be returned, unless the bail shall
shew very special cause to induce the court to continue the same
for one term and no longer; and in case such bail shall not ap-
pear and answer in manner aforesaid, the court on motion of the
plaintiff, or his counsel, shall enter final judgment at the first term:
but if it shall appear to the court, to which any scire facias may
be returned served on the bail, that the principal is confined in
any jail of this state, by virtue of any civil process, on proof
thereof, and on motion of the plaintiff, or bail, the said court shall
order and direct, that such principal be retained in jail where he,
she or they, shall remain a prisoner or prisoners, until he, she or
they, shall have paid the plaintiff's judgment and costs, or be
otherwise discharged according to law ; a copy of which order
being served on the jailor or keeper of such prison, before such
prisoner's releasement, shall be a sufficient authority for him to
retain such prisoner, until such order be complied with, and shall
also be deemed a surrender, of such principal, and as such shall
discharge the bail: Provided, That nothing herein contained shall
be so construed as to prevent any person, who shall be surrender-
ed by the bail, pending any action, from putting in other good
and sufficient bail, who shall be subject to the like proceedings,
and allowed the same advantages as are herein before prescribed.
V. Who may bail, and the manner of it.
If it is not in case of felony, it seemeth that any one justice
alone may bail a prisoner, except where it is otherwise ordered,
in particular instances, by some special act. Dalt. c. 12.
And it seemeth to be agreed, that any one justice might always
in his discretion, either bail or imprison one "who has given an-
other a dangerous wound, according as it shall appear from the
PAIL.
47
whole circumstances, that the party is most likely to live or die ;
for that every such justice being a principal conservator of the
peace, the offence at present being only an enormous breach there-
of, and no felony, seems properly to come under his connusance.
2 Haw. 103.
VI. Requiring excessive Bail.
Excessive bail shall not be required, nor excessive fines im^
posed, nor cruel and unusual punishments inflicted. Const. U. S.
Amend. Art. 10.
VII. Denying Bail -where it ought to be granted.
To refuse bail, where the party ought to be bailed (the party
offering the same,) is a misdemeanour punishable not only by the
suit of the party, but also by indictment. 2 Haw. 90. H. P. 97.
VIII. Granting Bail -where it ought to be denied.
Admitting bail where it ought to be denied, is punishable by
fine, or as a negligent escape at common law. H. P. 97.
A justice committed a man on suspicion of stealing a mare, and
bound over the owner to prosecute. Afterwards, upon examining
two other persons, he admitted the party to bail. The prosecutor
appeared at the assizes, and found a bill, but the party accused did
not appear; and the court granted an information against the jus-
tice, declaring they should not have bailed the man themselves.
Str. 1216.
IX. Of Bail by -writ of habeas corpus.
The writ of habeas corpus shall not be suspended unless when,
in case of rebellion, or invasion, the public safety may require it.
Con. Art. 4. Sec. 9. Con. U. S. Art. 1. Sec. 9.
That the judges of the superior courts, or any o$e of them,
and the justices of the inferior courts, or any of them in the ab-
sence 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 discre-
tion and the law of the land: Provided, That in all cases of a capi-
48
BAIL.
tal nature, where a writ of habeas corpus shall be issued by a jus-
tice 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. M. & C. 294.
If bail cannot otherwise be obtained, the law hath provided a
remedy in most cases by the habeas corpus act. 31 C. 2. c. 2.
The substance of which is briefly thus :
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 accessary 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 commitment:
In such cases the person shall not be bailed on a writ of habeas
corpus ; 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 indict-
ed sometime 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 wit-
nesses could not be produced within that time ; and then, if he is
not tried in the second term or assize, he shall be discharged.
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 copyof the war-
rant of commitment shall be produced before them, or oath made
that such copy was denied.
BAIL.
49
But if any person hath wilfully neglected by the space of two
terms to apply for his enlargement, he shall not have a habeas cor-
pus granted in the vacation.
This being done, any one of the judges shall award a habeas cor-
pus under the seal of the court, on pain of five hundred pounds,
to be marked in this manner, per statutum tricesimo primo Caroli
secundi regis, and signed by the person that awards the same; and
shall be directed to the officer or keeper, returnable immediately.
And the charges of bringing the prisoner shall be ascertained by
the judge, or court, that awarded the writ, and endorsed thereon,
not exceeding 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 tendered to him : and the prisoner shall give bond to
pay the charges of carrying 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,
and shall then likewise certify the true cause of the imprisonment j
if above twenty miles and less than a hundred, then within ten
days ; if above a hundred, then within twenty days, on like pain
as before.
Then if it shall appear to the said 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 discharged.
If he shall be discharged, he shall thereupon enter into recog-
nizance to appear on his trial; and the writ, and return thereof,
and recognizance, 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 persons so set at large shall not be re-committed for the
same offence, unless by order of court, on pain of five hundred
pounds to the party grieved.
Two things are to be observed upon this statute.
1. That although the constable by his own authority, without
any warrant of commitment, may carry offenders to gaol, and this
was the method of securing prisoners before there were any jus-
G
so
BAIL.
tices of the peace ; yet since the institution of the office of justices
of the peace, it is better that they be carried before a justice, to be
sent by him to gaol by warrant of commitment; otherwise they
have a right to be bailed upon this act, whatever the offence may be.
2. That the warrant of commitment ought to set forth the cause
specially ; that is to say, not for felony in general, but felony for
stealing the goods of such a one to such a value, and the like; that
so the court may judge thereupon, whether or no the offence is
such, for which a prisoner ought to be admitted to bail.
X. Precedents.
Recognizance of Rail in a. Criminal Case.
Georgia, "J Know all men by these presents, that we John
Clarke County, J 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 thou-
sand 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 of
June, eighteen hundred and eighteen.
The condition of the above obligation is such, that if the above
John Doe shall personally appear before the superior court to be
held for said county, on the third Monday in September 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 depart 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.)
Robert Keeppeace, J. P. Richd. Roe. (L. S.)
Bail Bond in Civil Cases.
({£j° The penalty must be double the debt.)
Georgia, "1 Know all men by these presents, that we John
Clarke County. J 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, ^ve bind
BAIL.
3,1
ourselves, our heirs, executors and administrators, jointly and se-
verally, firmly by these presents, sealed with our seals, and dated
this tenth day of June, eighteen hundred and eighteen.
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 for said county on the third Monday in September next, hath
been served upon the said JohnNow if the said John, in case he
is cast in the said suit, shall well and truly pay and satisfy the con-
demnation of the court, or render his body to prison in execution
of the same, in terms of the law in such case made and provi-
ded, and upon failure thereof the said Richard will do it for him,
then the above obligation to be void, else to remain in full force".
John Doe. (L. S.)
Richd. Roe. (L. S.)
Form of a Recognizance of a person to appear and give evidence.
Georgia, ") Know all men by these presents, that we John
Clarke County. S Doe and Richard Roe are held and firmly bound
unto his excellency the governor for the time being and his sue-
cessors in office, in the just and full sum of fve hundred dollars,
for the true payment of which, we bind ourselves, our heirs, exe-
cutors and administrators,- jointly and severally, firmly by these
presents, sealed with our seals, and dated this tenth day of June,
eighteen hundred and eighteen.
The condition of the above obligation is such, that if the above
bound John shall personally appear at the superior court to be held
for said county, on the third Monday in September next, then and
there to give evidence in behalf of the state, on a bill of indict-
ment to be preferred against Peter Smith, [for larceny] and not
depart thence without leave of the court, then this obligation to
be void, else to remain in full force.
Acknowledged before me, John Doe. (L. S.)
Robert Keeppeace, J. P. Richd. Roe. (L. S.)
52
BASTARDY.
BASTARDY.
I. Laws on the subject of Bastardy.
II. Precedents.
I. Laws on the subject of Bastardy.
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
husband, that by the usual time of gestation they could not be got-
ten 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 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.
By the act of 16th of December, 1793, it is declared that 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 with 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
sheriff 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
warrant 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 re-
fusing 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 expence of lying in with such child or children,
boarding, nursing and maintenance while the mother of such child
BASTARDY.
53
is confined by reason thereof, that then it may and shall be law-
fulfor the said justice to bind over such delinquent in a sufficient
recognizance, 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 complaint as may be
then and there alleged against him touching the premises.
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 chil-
dren, 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. M. & C. 42.
By a supplementary act passed in 1802, to the above act of
1793, it is declared, that whereas the act entitled " An act res-
peering bastardy and other immoralities," passed on the 16th day
of December, 1793, has been found ineffectual for the purposes
therein intended—for remedy whereof—
Be it enacted, That from and after the passing of this act, the
punishment to be imposed upon any person who shall be convicted
under the first article of the said recited act, shall be by fine and
imprisonment or either at the discretion of the judge. Clay.
Dig. 60.
By the act of 1809, it is made the duty of the inferior courts
in the several counties 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 an act passed the
16th day of December, 1793, as above recited, 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
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-
5,4
BASTARDY.
said, from time to time, as the situation and exigencies of the said
bastard child or children may require.
It shall be the duty of the justice or justices of the peace, be-
fore whom the aforesaid bond shall be taken, to return such bond
to the clerk of the inferior court of the county in which such fe-
male shall reside, within thirty days after the same is taken. Clay.
Dig. 524.
If any woman shall endeavour privately, either by herself or the
procurement of others, to conceal the death of any issue of her
body, male or female, which, if it were born alive, would by law
be a bastard, so that it may not come to light, whether it was mur-
dered or not, every such mother being convicted thereof, shall suf-
fer an imprisonment at hard labor or in solitude in the penitentia-
ry, for any time not exceeding one year.
If the same indictment charge any woman with the murder of
her bastard child, as well as with the offence in the preceding
section^ the jury by whom such woman shall be tried, may acquit
her of murder, and find her guilty of concealing the death of the
bastard, or acquit her of both offences: But, if the said jury shall
find her guilty of the murder, they shall return no verdict upoa
the count for the concealment of the death of the bastard; and
if any person shall counsel, advise, or direct such woman to kill
the child she is pregnant or goes with, and after she is delivered of
such child, she kill it, every such person so advising or directing,
shall be deemed accessary to such murder, and shall have the same
punishment as the principal shall have.
The constrained presumption arising from the concealment of
the death of any child, that the child whose death is concealed,
was therefore murdered by the mother, shall not be sufficient or
conclusive evidence to convict the person indicted of the murder
of her child, unless probable proof be given that the child was
born alive, nor unless the circumstances attending it shall be
such as shall satisfy the minds of the jury, that the mother did
wilfully and maliciously destroy and take away the life of such
child. P. C, p. 88, 89.
BASTARDY.
55
II. Precedents.
1. Voluntary examination of a Woman with Child of a Bastarfi. -
Georgia, ") The voluntary examination of Nancy Loose-
Clarke County. J habit, of the county aforesaid, single woman,
taken on oath before me, Robert Keeppeace, a justice of the peace
for the county aforesaid, this tenth of June, eighteen hundred and
eighteen, 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 j and that Simon Carenought, of said county, is
the father of said child.
Taken and signed the day and year her
above-written before me, ^ Nancy x Loosehabit.
Robert Keeppeace, J. P. mark
2. Examination after Birth.
Georgia, 1 The examination of Nancy Loosehabit, of the
Clarke County. ^ county aforesaid, single woman, taken upon oath
before me, Robert Keeppeace, one of the justices of the peace for
said county, this tenth of June, eighteen hundred and eighteen,
who saith, that on the frst of March, 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 chargea-
ble to said county, and that Simon Carenought is the father of said
child.
Taken and signed the day and year her
above-written before me, ^ Nancy x Loosehabit.
Robert Keeppeace, J. P. mark
3. A Warrant to bring a Woman suspected to be with Child of a
Bastard, before a Justice of Peqce, to be examined thereupon.
Georgia, By Robert Keeppeace, one of the justices of
Clarke County. ^ the 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 wo-
man, is with child, which child when born will be a bastard, and
is likely to become chargeable to the county : these are therefore
56
BASTARDY.
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 alleged against her as aforesaid, for which this shall
be your sufficient warrant.
Given under my hand and seal, this tenth day of June, one
thousand eight hundred and eighteen.
To any lawful officer to ~) „ , __ „ _ , _
execute and return. \ Roiert ^PP""'' J- P' S-)
The form of the examination when brought before the justice
upon the above warrant, does not differ from those already given.
4. Warrant against the reputed Father.
Georgia, By Robert Keeppeace, a justice of the peace
Clarke County. ^ for said county.
Whereas, upon the examination of Nancy Loosehabit, single wo-
man, this day taken on oath before me, it appears that she is now
with child, which child when it shall 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 Simon,
and bring him before me, or some other magistrate of said county
to answer the said charge.
Given under my hand and seal this the tenth day of June,
eighteen hundred and eighteen.
To any lawful officer to? ^ ^ T ^ ,
execute and return. C ^bert Keeppeace, J. p. (L. S.)
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
indemnify 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 an-
swer to the same j and in the latter event, the following is the
form of the
BASTARDY.
57
Recognizance.
Georgia, Be it remembered,that we, Simon Carenonght
Clarke County. C 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 June, eighteen hundred and
eighteen.
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 there-
fore the said Simon shall personally appear at.the superior court,
to be held in and for said county, on the third Monday in Septem-
ber next, then and there to answer said charge, and abide by and
perform what the said court shall order in the premises, then the
aboye recognizance to be void.
Acknowledged before me, Simon Carenought, (L. S.)
Robert Keeppeace, J. P. Richard Roe, (L. S.)
In case the reputed father refuses or neglects to give the bond
of indemnity, or the foregoing recognizance, he must be committed^
of which the following is the form.
5. Mittimus.
Georgia, To the sheriff, or keeper of the jail of the
Clarke County. \ county 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 inferior 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 ap-
pearance at the next superior court for said county, to answer the
H
58
BASTARDY
said charge. These are therefore to command you, to receive into
your custody the said Simon, and him safely to keep in the com-
mon jail, until he shall be thence discharged by due course of
law.
Given under my hand and seal, this tenth day of June, eighteen
hundred and eighteen.
Robert Keeppeacey J. P. (L. S.)
6. Form of the Bond of Indemnity.
(The sum to be bound in is the same here mentioned.)
Georgia, 1 Know all men by these presents, that we, Simon
Clarke county. J 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 andfifty
pounds (being six hundred and forty-two dollars, and eighty-five
and three quarter cents ;) for the payment of which we bind our-
selves, our heirs, executors and administrators, jointly and seve-
rally, by these presents. Sealed with our seals, and dated this
tenth of June, eighteen hundred and eighteen.
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, dis-
charge, indemnify and save harmless, the said justices of the in-
ferior 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 thesame ; then the
above obligation to be void, else to remain in full force.
Acknowledged before me, Simon Carenought, (X. S.)
Robert Keeppeace, J. P. Richard Roe, (L.S.)
BEHAVIOUR.
59
BEHAVIOUR.
Security for the peace or good behaviour consists in being
bound, with one or more sureties, in a recognizance or obliga-
tion to the state, entered on record, and taken in some court, or by
some judicial officer, such as a justice of the peace, judge, &c.
whereby the parties acknowledge themselves to be indebted to the
state in the sum required, with condition to be void and of none
effect if the party shall appear in court such a day, and in the
mean time keep the peace, either generally towards all the citi-
zens of the state, or particularly also with regard to the person
who craves the security ; or if it be for the good behaviour, then
on condition that he shall demean and behave himself well (or be
of good behaviour), either generally or specially for the time
therein limited, as for one or more years, or for life. This recog-
nizance, if taken by a justice of the peace, must be certified to
the next superior court, and if the condition of such recognizance
be broken by any breach of the peace in the one case, or any mis-
behaviour in the other, the recognizance becomes forfeited or ab-
solute ; and thereupon 2l,scire facias issues against the party and
his sureties, to which they plead and join issue ; or make default,
and the court proceeds to give judgment and award execution as
in other cases.
Any justices of the peace, by virtue of, their commission, or
those who are ex officio conservators of the peace, as the judges
of the superior and justices of the inferior courts, may demand
such security ; or according to their discretion- they may commit
all breakers of the peace, or bind them in recognizance to keep it.
Also constables may apprehend all breakers of the peace, and.
commit them till they find sureties for the keeping of it. Security
of the peace may be granted by justices of the peace and judges,
at the request of any citizen, upon due cause shown; or if the
justice of the peace is averse to act, it may be granted by a man-
datory writ, called a sapplicamt, issuing out of the superior court,
which will compel the justice to act as a ministerial, and not as a
judicial officer ; and he must make a return to such writ, specify-
ing his compliance under his hand and seal; or the superior court
may take such recognizance themselves. A justice of the peace
60
behaviour.
may require sureties of any person being compos mentis, whether
a fellow justice or otl^er magistrate, or whether he be merely a
private man. Wives may demand it against their husbands, or
husbands if necessary against their wives ; but married women
and infants under age, ought to find security by their friends only,
and not to be bound themselves, for they are incapable to engage
themselves to answer any debt, which is the nature of those recog-
nizances or acknowledgements.
A recognizance may be discharged by the death of the princi-
pal party bound thereby, if not before forfeited; or by order of
the court to which such recognizance is certified by the justice, if
they see sufficient cause ; or if he at whose request it was granted
upon a private account, will release it, or does not make his ap-
pearance to pray that it may be continued.
Thus far what has been said is applicable to both species of re-
cognizances for the peace and for the good behaviour ; but as these
two species of securities are in some respects different, especially
as to the cause of granting, or the means of forfeiting them, they
are now to be considered separately.
And first it shall be shown for what cause such a recognizance
with sureties for the peace is grantable, and then how it may be
forfeited. '
Any justice of the peace may by virtue of his office bind all
those to keep the peace, who in his presence make any affray, or
threaten to kill or beat another ; or contend together with hot
angry words ; or go about with unusual weapons or attendance, to
the terror of the people ; and all such as he knows to be common
barrators, and such as are brought before him by the constable for
the breach of the peace in his presence ; and all such persons as
having been before bound to the peace, have broken it and forfeit-
ed their recognizance. Also when any private man hath just
cause to fear that another will burn his house, or do him a corporal
injury, by killing, imprisoning, or beating him, or that he will pro-
cure others to do so, he may demand surety of the peace against
such person ; and every justice of the peace is bound to grant it,
if he who demands it will make oath that he is actually under
fear of death or bodily harm, and will show that he has just cause
to be so by reason of the other's menaces, attempts, or having lain
in wrait for him ; and will also further swear, that he does not re-
quire such surety out of malice or for mere vexation.
BEHAVIOUR.
61
This is called swearing the peace against another, and if the
party does not find such sureties as the justice in his discretion
shall require, he may be immediately committed till he does.
Such recognizance for keeping the peace, when given, may be
forfeited by any actual violence, or even an assault and menace to
the person of him who demanded it, if it be a special recognizance ;
or if the recognizance be general, by any unlawful action whatsoev-
er that either is or tends to a breach of the peace—as by joining in
any riot, rout, or unlawful assembly, or by hunting or appearing
by day or night disguised, or with painted faces, for any unlawful
purpose ; or knowingly sending a letter without a name, or with a
fictitious name,' demanding money or other valuable things, or
threatening to kill, or burn the house of any person ; or commit-
ting any affray, or amy forcible entry or detainer ; or riding or
going armed with dangerous or unusual weapons, under such cir-
cumstances as are apt to terrify the people; or spreading false news
to terrify the people; or making false and pretended prophecies
with intent to disturb the peace ; or challenging to fight by word'
or letter, or by being the bearer of such challenge; or making,
publishing, or communicating any libel, or by manslaughter, rape,
robbery, unlawful imprisonment, or the like ; or by lying in wait
for any person, to kill or beat him, or the like; or by any private
violence committed against any of the citizens.
But a bare trespass upon the lands or goods of another, which
is a ground for a civil action, unless accompanied by a wilful
breach of the peace, is no forfeiture of the recognizance ; neither
are mere reproachful words, as calling a man a knave, rogue, or
liar, any breach of the peace, so as to forfeit one's'recognizance
(being merely the effect of heat and passion), unless they amount
to a challenge to fight.
Recognizance with sureties for the good behaviour, includes
security for the peace and somewhat more^ it will therefore be ex-
amined here in the same manner as the other.
Justices of the peace may bind over to the good behaviour all
those that be not of good fame, wherever they may be found. Un-
der which general words, a man may be bound to his good behav-
iour for causes of scandal against morality as well as against the
peace ;—as for haunting bawdy houses with women of bad fame,
or for keeping such women in his own house, or for words in
abuse of the officers of justice in the execution of their office ; all
62
behaviour.
night walkers; eaves-droppers; such as keep suspicious company,
or are reputed to be pilferers or robbers: such as sleep in the day
and wake in the night; common drunkards, whore-masters, the
putative fathers of bastards, cheats, idle vagabonds, and pther
persons whose misbehaviour may reasonably bring them within
the general words, " persons not of good famef—an expression
that leaves much to be determined by the discretion of the mag-
istrate himself; but if he commits a man for want of sureties, he
must express the cause thereof with convenient certainty ; and
take care that such cause be a good one.
Any person wandering or strolling about, able to work or other-
wise to support himself in a reputable way, or leading an idle, im-
moral, profligate course of life, shall 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 convic-
tion, shall be imprisoned in the penitentiary, at the discretion of
the court. P. C. 129.
A recognizance for the good behaviour may be forfeited by all
the same means as one for the security of the peace may be; and
also by some others, as by going armed with unusual attendance,
to the terror of the people; by speaking words tending to sedition;
or by committing any of those acts of misbehaviour the recogni-
zance was intended to prevent; but not barely giving fresh cause
of suspicion of that which perhaps may never actually happen;
for although it is just to compel suspected persons to give security
to the public against misbehaviour that is apprehended, yet it
would be hard upon such suspicion, without the proof of any ac-
tual crime, to punish them by a forfeiture of their recognizance.
See Appendix for forms, title Behaviour.
BIG-AMY.
By the term Bigamy, is generally meant, in the law, the crime
of marrying a second husband or wife, the former being alive ;
though in common acceptation, the word Polygamy seems more
expressive of the offence.
BRIBERY*
63
If any person shall have two wives or two husbands, at one and
the same time, knowing of the living and existence^ of such wife
or husband, he or she shall, on conviction, be sentenced to pay a
jine not exceeding five hundred dollars, and to undergo an im-
prisonment at hard labor in the penitentiary, for any time not ex-
ceeding three years, and the second marriage shall be void ; but
long absence of the wife or husband, and no information of the
fate of such husband or wife, shall be cause of acquital of the
person indicted; and in every case, the issue of such second mar-
riage, born before the commencement of any prosecution for biga-
my, or within the ordinary time of gestation thereafter, shall, not-
withstanding the invalidity of such marriage, be considered as le-
gitimate.
If any man or woman being unmarried, shall knowingly mar-
ry the husband or wife of another person, such man or woman
shall, on conviction, be sentenced to undergo an imprisonment
in the penitentiary for any time not exceeding three years. P.
C. 125.
The first and true wife may not be allowed as a witness against
the husband to prove the second marriage, but the second wife
may, for she is not legally his wife. 1 H. H. 693. And so vice ver-
sa of a first and second husband. 4 Blacks. Com. 164.
Bread. See Unwholesome Provisions.
BRIBERY.
Bribery, in a strict sense, is taken for a great misprision of one
in a judicial place, taking any thing whatsoever, except, meat and
drink of small value, of any one who has to do before him any
way, for doing his office, or by colour of his office, but of the State
only; and is punishable at the common law, by fine and impris-
onment. 1 Haw. c. 67.
If any person shall, directly or indirectly, give or offer to give,
any money, goods, or other bribe, present, or reward, or give or
make any promise, contract, or agreement for the payment, deliv-
cry or alienation of any money, goods, or other bribe, or use any
64
BURGLARY.
promises, threats, persuasions, or other like sinister, unfair, or
fraudulent practices, in order to obtain or influence the opinion,
judgment, decree, or behaviour of any member of the General
Assembly, or any officer of this state, judge, juror, justice, referee,
or arbitrator in any discussion, debate, action, suit, complaint, in-
dictment, controversy, matter or cause depending, or which shall
depend before him or them ; such person shall, on conviction, be
punished by imprisonment in the penitentiary at hard labour, or
in solitude, for any time riot exceeding five years ; and the mem-
ber of the general assembly, or officer, judge, juror, justice, re-
feree, or arbitrator, who shall accept or receive, such bribe, shall,
on conviction, be punished by imprisonment in the penitentiary at
hard labour, for any period of time not exceeding ten years. P. C.
p. nr.
Bridges. See Malicious Mischief.
Buggery. See Sodomy and Bestiality.
BURGLARY.
I. What is Burglary.
II. How it is punished.
III. Precedents.
I. What is Burglary.
The word burglary is thought to have been brought into Eng-
land by the Saxons from Germany, in whose language burg signi-
fies a house, and barron a thief, probably from the Latin latro.
I shall first give the definition of burglary at common law, and
then as defined by the penal code, in which it will be seen that the
offence is materially altered, but as many of the constituent parts
of the crime at common law are retained in the statutory descrip-
BURGLARY.
6-5
tion of it, it will not be improper to give the principles as settled
in each of those respective points.
Burglary is a felony at common law, in breaking and entering
the mansion house of another in the night, with intent to commit
some felony within the same, whether the felonious intent be exe-
cuted or not. Hale's PI. 79.
Burglary is the breaking or entering into the dwelling or man-
sion house, with intent to commit a felony: All out-houses con-
tiguous to and within the curtilage or the protection of the man-
sion house, shall be considered as parts of the mansion or dwell-
ing house. A hired room or apartments in a public tavern, inn
or boarding house,, shall be considered as the dwelling house of
the person or persons occupying and hiring the same. Burglary
may be committed in the day or night. P. C. p. 103.
By the first definition, it will be found that four things were ne-
cessary to constitute the crime of burglary, to wit: 1. Breaking
AND entering: 2. The mansion house of another: 3. In the
night: And 4th. With an intent to commit some felony within the
samey £s?c.
In the last, three things are only, necessary,to wit: 1. Either
breaking OR entering: 2. The dwelling or mansion house, &c.
And 3d. With intent to commit a felony. It may be committed by
our statute, in the day or night, and though, by the common law,
it was necessary that there should be both a breaking and entering;
under our law, either, in that division of the offence, is sufficient;
so that in considering the different parts of the offence, constant re-
gard must be had to that difference. Also, as our statute making
the punishment of the offence greater, if committed in the nighty it
will not be amiss to consider all the points as constituting the crime
at common law.
Breaking. Every entrance into the house by a trespasser, is not
a breaking in this case, but there must be an actual breaking. As
if the door of a mansion house stand open, and the thief enter, this
is not breaking. So it is if the window of the house be open, and
a thief with a hook or other engine, draweth out some of the goods
of the owner, this is no burglary, because there is no actual break-
ing of the house. But if the thief breaketh the glass of the win-
dow, and with a hook or other engine draweth out some of the
goods of the owner, this is burglary, for there was an actual break-
ing of the house. 3 Inst. 64.
I
66
BURGLARY.
And the following acts amount to an actual breaking: opening
the casement or breaking the glass window, picking open the lock
of a door, or putting back the lock, or the leaf of a window, or un-
latching the door that is only latched. 1 H. H. 552.
At a meeting of the judges upon a special verdict in January,
1690, they were divided upon the question, whether breaking open
the door of a cupboard let into the wall of the house was burglary
or no. Upon which Mr. Foster observes, that with respect tp cup-
boards, presses, lockers and other fixtures of the like kind, it seem-
eth that in favour of life, a distinction ought to be made between
cases relating to mere property, and such wherein life is concern-
ed. In questions between the heir or devisee and the executor, those
fixtures may with propriety enough be considered as annexed to
and parts of the freehold. The law will presume, that it was the
intention of the owner, under whose bounty the executor claims,
that they should be so considered : to the end that the house might
remain to those who by operation of law, or by his bequest, should
become entitled to it, in the same plight he put it, or should leave
it, entire and undefaced. But in capital cases, it seemeth, that
such fixtures, which merely supply the place of chests and other
ordinary utensils of household, should be considered in no other
light than as mere moveables, partaking of the nature of those
utensils, and adapted to the same use. Fost. 108, 9.
In the case of K. and Gray. One of the servants, in the house,
opened his lady's chamber door (which wa» fastened with a brass
bolt) with design to commit a rape ; and it was ruled to be burgla-
ry, and the defendant was convicted and transported. Str. 481.
The case of jfoshua Cornwall is considered of great import-
ance, as it goes to shew how far an act may be construed into bur-
glary which does not $eem to fall expressly under the definition
given by lord Hale of that offence. He was indicted with another
person for burglary. And upon the evidence, it appeared, that he
was a servant in the house where the robbery was committed, and
in the night-time opened the street door, and let in the Sther prisoner,
and shewed him the sideboard, from whence the other prisoner
took the plate ; and the defendant opened the door and let him
out j but the defendant did not go out with him, but went to bed.
Upon the trial it was doubted whether this was burglary in the
servant, he not going out with the other. But afterwards, at a
meeting of all the judges at Serjeant's Inn, they unanimously
agreed that it tyas burglary in both, and not to be distinguished
BURGLARY.
&
from the case where one watches at the street end, while the other
goes in and commits the burglary, which hath been often ruled to
be burglary in both j and upon report of this opinion the defendant
was executed. Str. 881.
And entering. It is deemed an entry when the thief breaketh
the house, and his body, or any part thereof, as his face, or his ariti
is within any part of the house j or when he putetth a gun into a
window which he hath broken, or into a hole of the house which
he hath made, with intent to murder or kill, this is an entry and
breaking of the house: but if he doth barely break the house,
without any such entry at all, this is no burglary. 3 Inst. 64*
In the case of George Gibbons, at the Old Bailey,in June, 1752 j
Gibbons was indicted for burglary in the dwelling house of John
Allen. It appeared in evidence, that the prisoner in the night time
cut a hole in the window shutter of the prosecutor's shop, which
was part of his dwelling house ; and putting his hand through the
hole, took out watches and other things, which hung in the shop
within his reach j but no entry was proved otherwise than by put-
ting his hand through the hole. This was held to be burglary,
and the prisoner was convicted. Fost. 107, 8.
If divers come in the night to do a burglary, and one of thelli
break and enter, the rest of them standing to watch, at a distance,
it is burglary in all. 3 Inst. 64.
The mansion hoilse. This includes also a church: and Mr. Haw-
kins says, all out-buildings, as barns, stables, dairy-houses, ad-
joining to a house, are looked upon as part thereof, and conse-
quently burglary may be committed in them : But if they be re-
moved at any distance from the house, it seems that it hath not
been usual of late to proceed against offences therein as burgla-
ries. 1 L. Hawk. 163.
And lord Hale says more explicitly, the mansion house doth
not only include the dwelling-house, but also the out-houses that
are parcel thereof, as barn, stable, cow-house, dairy-house, if they
are parcel of the messuage, though they are not under the same
roof, or joining contiguous to it; and so he says it was agreed by
all the judges j but if they be no parcel of the messuage, as if a
man take a lease of a dwelling-house from one, and of a barn, &c.
from another ; or if it be far remote from the dwelling-house, and
not so near it, as to be reasonably esteemed parcel thereof, as if it
stand a bow-shot off from the house, and not within or near the
curtilage of the chief house j then the breaking is not burglary,
68
BURGLARY.
for it is not a mansion-house, nor any part thereof. 1 H. H.
558, 9.
To break and enter a shop, not parcel of the mansion-house, in
which the shop-keeper never lodges, but only works or trades there
in the day time, is not burglary, but only larceny j but if he or his
servant usually or often lodge in the shop at night, it is then a
mansion-house, in which burglary may be committed. 1 H. H.
557, 8.
It is not necessary, to make it burglary, that any person be ac-
tually in the house, at the very time of the offence committed. 1
Hawk. 164.
Kx Newgate sessions, in January, 1750, John Nuthrown and
Miles Nuthrown, were indicted for burglary in the dwelling-house
of one Mr, Fackneij at Hackney, and stealing divers goods. It
appeared by Mr. Fac^ney's evidence, that he held this house
for a term of years not yet expired, and made use of it as a coun-
try house in summer, his chief residence being in London. That
about the latter end of the last summer, he removed with his whole
family to the city, and brought away a considerable part of his
goods: That in November last his house was broken open and in
part rifled ; upon which he removed the remainder of his house-
hold furniture, except a clock, and a few old bedsteads, and some
lumber of very little value; leaving no bed, or kitchen furni-
ture, or any thing else for the accommodation of a family. Mr.
Fackney being asked, whether, at the time he so disfurnished his
house, he had any intention of returning to reside there, declared
that he had not come to any settled resolution whether to return or
not; but was rather inclined totally to quit the house, and to let it
for the remainder of his term. The fact with which the prison-
ers were charged was sufficiently proved j and was committed
kbout midnight the first of January last. The court was of opin-
ion that the prosecutor having left his house, and disfurnished it
in the manner before mentioned, without any settled resolution of
returning, but rather inclining to the contrary, it could not, under
these circumstances, be considered his dwelling-house at the time
the fact was committed, and accordingly directed the jury to ac-
quit the prisoners of the burglary, which they did, but found them
guilty of felony in stealing the clock, and some other small mat-
ters. And they were ordered for transportation.—And the distinct
tion is this: Where the owner quitteth the house, with an in-
BURGLARY.
69
tention of returning*, it may still be considered as his mansion-
house, though no person be left in it; many citizens and some law-
yers do so from a principle of good husbandry, in the summer, or
for a long vacation. But there must be an intention of returning,
otherwise it will be no burglary. Fost. 76, 77.
In the night. Lord Coke says, as long as the day continues,
whereby a man's countenance may be discerned, it is called day,
and when darkness comes and day light is past, so as by the light
of day you cannot discern the countenance of a man, then it is
called night. And this doth aggravate the olfence ; since the night
is the time when man is at rest, and when beasts run about seek-
ing their prey. Hence in .ancient records, the twilight was signi-
fied, when it was said, inter canem et lupum, (between the dog and
the wolf:) for when the night begins the dog sleeps, and the wolf
seeketh his prey. 3 Inst. 63. Sec. 4. Blacks Com. 224.
An indictment was held insufficient for burglary, which Stated
the fact to have been committed in the night, without expressing
the particular hour, and the prisoner was found guilty of simple
felony only. K. and Waddington, at the Lancaster lent-assizes,
1771.
With intent to commit felony. There can be no burglary, but
where the indictment both expressly alleges, and the verdict also
finds an intention to commit some felony ; for if it appear that the
party only intended to commit some trespass, as to beat the party
or the like j he is not guilty of burglary. 1 Hawk. 164.
However, it seems the much better opinion, that an intention to
commit a rape, or other such crime, which is made felony by sta-
tute, and was only a trespass at common law, will make a man
guilty of burglary, as much as if such offence was a felony at com-
mon law; because, wherever a statute makes any offence felony, it
incidently gives it all the properties of a felony at common law.
1 Hawk. 164.
Whether the felonious intent be executed or not. Thus they are
burglars, who break any house or church in the night, with intent
to commit a felony, whether they take any thing away or not.
And herein this offence differs from robbery, which requires that
something be taken, though it is not material of what value.
* Ammo reverlcndi.
70
BURNING.
Where a man commits burglary, and at the same time sleahj
goods out of the house, it is also larceny ; and if he be acquitted of
burglary, he may notwithstanding be indicted of the larceny ; for
they are several offences, though committed at the same time. And
burglary may be where there is no larceny, and larceny may be
where there is no burglary. 2 H« H. 246. See 1 L. Hawk. 164,
in notes.
II. How it is punished.
Burglary, in the day time, shall be punished with an imprison*
ment at hard labor in the penitentiary, for any time not less than
one year, nor longer than five years, P. C. p. 103.
Burglary, in the night, shall be punished by imprisonment at
hard labour, in the penitentiary, for any time not less than one year,
nor longer than seven years. P. C.p. 103.
III. Ptecedents. See Appendix, title Burglary.
BURNING.
I. Of Burning Houses.
II. Of other Things.•
III. Precedents.
I. Of Burning Houses.
Arson is the malicious and wilful burning of the house or out*
house of another.
The wilful and malicious burning, or setting fire to, or attempt-
ing to burn, a house in a city, town, or village, shall be punished
with death. P. C. p. 102.
The wilful and malicious burning a dwelling-house, on a farm,
or plantation, or elsewhere, (not in a city, town, or village,) shall
be punished by imprisonment at hard labour in the penitentiary,
for any term not iess than five years, nor longer than twenty
years. Ib.
BURNING.
n
' Setting fire to a dwelling-house, with intent to burn the same,
on a farm, or plantation, or elsewhere, (not in a city, town, or vil-
lage,) shall be punished by imprisonment at hard labour, in the
penitentiary, for a term not less than three years, nor longer than
ten years. Ib.
The wilful and malicious burning an out-house, such as a barn,
stable, or any other house (except the dwelling house) on a farm,
or plantation, or elsewhere, (not in a city, town, or village,) shall
be punished by imprisonment at hard labour in the penitentiary, for
any term not less than one year, nor longer than seven years. P.
C. p. 103.
Setting Jire to an out-house, as before described, shall be pun-
ished by imprisonment, at hard labour in the penitentiary, for any
term not less than one year, nor longer than two years. Ib.
The crime of burning shall be complete, where the house is
consumed, or generally injured. Ib.
The offence of setting Jire to a house, shall be complete, when
any attempt is made to burn," though no material injury is the
consequence. Ib.
Arson in the day time, (except when committed in a city, town,
or village,) shall be punished with a shorter period of imprison-
ment, at hard labour in the penitentiary, than arson committed in
the night. Ib.
Arson committed elsewhere than in a city, town, or village,
which produces the death of any person, shall be punished with
the death of the person or persons committing the arson. Ib.
II. Of other Things.
Any person or persons, who shall wilfully and maliciously, set
fire to, or burn, any stack or stacks of corn, grain, straw, or hay;
shall, on conviction, be sentenced to pay afine, equal to twice the
value of the stack or stacks, so set fire to or burnt, and to under-
go an imprisonment in the penitentiary, at hard labour, for any
time not exceeding three years. P. C. p. 132.
If any person shall wilfully and maliciously set on fire, or
cause to be set on fire, any woods, lands, or marshes within this
state, so as thereby to occasion loss, damage, or injury, to any
other person; he or she shall, on conviction, be sentenced to be
imprisoned in the common jail of the county, or in the peniten-
tiary. Ib.
CARRIERS.
If any person shall wilfully and maliciously set fire to any fence
or fences, inclosure or inclosures, or cause and procure the same
to be done ; he or she, on conviction, shall be sentenced to pay a
jine not exceeding five hundred dollars, and be imprisoned at the
discretion of the court. Ib.
If any person shall wilfully and maliciously burn, or set fire to
any ship, boat, or other vessel, above the value of two hundred
dollars, along side of any wharf, or at anchor in any river of this
state, or within any of its waters, or if any person shall wilfully
and maliciously make, or be assisting in the making, any hole in
the bottom, side, or any other part of any ship, boat, or vessel,
above the value aforesaid, or do any other act tending to the loss
or destruction of such ship, boat, or vessel at anchor, or lying as
aforesaid ; every person so offending, shall, on conviction, be sen-
tenced to pay a Jine not exceeding one thousand dollars, and un-
dergo an imprisonment in the penitentiary at hard labor, for any
period of time not exceding ten years, P. C. p. 133.
III. Precedents. See Appendix—title Burning.
Butcher. See Unwholesome Provisions.
CARRIERS.
It hath been holden, that a carrier embezzling goods, which he
has received to carry to a certain place, is not guilty of felony, be-
cause there was not a felonious taking ; but is liable only to a
civil action. 1 Haw. 89, 90.
But it hath been resolved, that if a carrier open a pack, and
take out part of the goods, with intent to steal it, he may be guil-
ty of felony; in which case it may be said, not only that such
possession of a part distinct from the whole was gained by wrong,
and not delivered by the owner; but also, that it was obtained
basely, fraudulently, and clandestinely, in hopes to prevent its
being discovered at all, or fixed upon any one when discovered.
1 Haw. 90.
CATTLE, HORSES, AND HOGS,
Also, it seems clear, that if a carrier, after he has brought the
goods to the place appointed, take them away again, secretly,
with intent to steal them, he is guilty of felony ; because the pos-
session which he received froni the owner being determined, his
second taking is in all respects the same as if he were a mere
Stranger. 1 Haw. 90.
Also, it hath been resolved, if goods be delivered to a carder,
to be carried to a certain p\ace, and he carries them to another
place, and disposeth of them to his own use, that this is felony j
because this declareth, that his intention originally was not to take
the goods upon the agreement and contract of the party, but only
with a design of stealing them. Kelynge, 82.
When goods are stolen from the carrier, he may prefer art in-
dictment against the felon, as for his own goods ; for though he
has not the absolute property, yet he has such a possessory pro-
perty, that he may maintain an action of trespass against any one
who takes th,em from him, and so may indict a thief for taking
them, and the indictment were good also if it had been brought
by the real owner. Kelynge, 39.
And there is a special case, wherein it is said, that a man may
commit larceny by stealing his own goods, delivered to the car-
riers, with intent to make him answer for them j for the carrier
had a special kind of property in the goods, in respect whereof,
if a stranger had stolen them, he might have been indicted gene-
rally, as having stolen the said carrier's goods j and the injury is
altogether as great, and the fraud as base, when they are taken
away by the very owner. 1 Haw. 94.
CATTLE, HORSES, AND HOGS.
Horse-stealing shall be denominated simple larceny or theft. P*
C. p. 104.
The term horse shall include the animal of both sexes, and
without regard to the alterations whick may be made by artificial
means. Ib.
Under the head of horse stealing, shall be included the theft of
mule or ass, or any animal, the hoof of which is not cloven* Ib*
K
74, CATTLE, HORSES, AND HOGS.
The offence shall in all cases be charged as horse stealing, but
the indictment shall designate the sex of the animal, and give any
other description by which its identity may be ascertained. Ib.
The stealing or theft of a horse, mule or ass, shall be punished
by imprisonment at hard labour in the penitentiary, for any time
not less than one year nor longer than five years. P. C. p. 105.
The stealing of horses, mules or asses, shall be punished by im-
prisonment at hard labour in the penitentiary, for any time not
less than two years nor longer than seven years. Ib.
Cattle stealing shall include the theft or larceny of a horned
animal or animals, and all animals having the hoof cloven, except
hogs. Ib.
The indictment, shall sufficiently describe the animal or ani-
mals, falling under the preceding section, so that it, or they, may
be ascertained and identified, by the owner or owners thereof*
Ib.
The stealing of one or more animals, under the before given
description of cattle, shall be punished by fine and imprisonment
in the common j ail of the county where the offence may have been
committed, as the court may order and direct, for any time not
less than six months nor longer than one year, or at hard labour
in the penitentiary, for a'term not less than one year nor more
than five years. Ib.
The stealing of a hog or hogs, shall be punished by confinement
in the common jail of the county where the offence may have
been committed, for any time not less than one month nor longer
than six months, or by confinement at hard labour in the peniten-
tiary, for a term not less than one year nor more than two years.
Ib.
If any person or persons, shall alter or change the mark or
brand of any animal or* animals before mentioned, with an inten-
tion to claim the same, or to prevent identification by the true
owner or owners thereof, the person or persons, so offending, shall
suffer the same punishment, and the court shall exercise the same
discretion, as is inflicted and given, for the theft of the said animal
or animals. Ib.
If any person shall maliciously maim, or kill any horse, bull,
steer, ox, cow, calf, heifer, or any animal or animals, falling under
the description as before given, of horses or cattle, or shall mali-
ciously kill a hog or hogs, any such person, so offending, shall, on
CERTIORARI. TS
conviction, be sentenced to pay a fine, or be imprisoned, at the dis-
cretion of the court. P. C. p. 133.
CERTIORARI.
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 of an inferior one, for the purpose of certifying or
removing the records of a cause depending before such inferior
court, tp a superior tribunal, and is usually granted upon a sug-
gestion supported by affidavit, that impartial justice will not be
administered in the court below, in such cause. Under this title
will be shewn,
I. In what cases it is grantable.
II. In what manner to be granted and allowed.
III. The effect of it.
IV. The return of it.
I. In what cases it is grantable.
A certiorari lies in all judicial proceedings, in which a writ of
error does not lie ; and it is a consequence of all inferior jurisdic-
tions erected by statute, to have their proceedings returnable into
the superior 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 Haw. 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 the judge below is*doubtful what judgment to
give. See 2 Hawk. 408, and the authorities there cited.
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, 401. Sep
2 Com. Dig. 185. 189,
CERTIORARI.
JI. In what manner to be granted and allowed.
Writs of certiorari are seldom applied for in criminal proceed-
jngs, and will be granted only in extraordinary cases, and upon
particular cause shewn: to wit, that there cannot be an indifferent
trial had in the county where the information was made, or indict-
meht found. But whenever a certiorari is delivered to an inferior
court, or justice of 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, willlie. Halt. Ch. 195.
III. The effect of it.
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.
But it hath been adjudged, that if a certiorari for the removal
of an indictment before justices of the peace be not delivered be-
fore the jury be sworn for the trial of it, the justices may proceed.
2 Hawk. 418,
And the justices may set a fine to compleat their judgment, af-
ter a certiorari delivered. L. Raym. 1515.
A certiorari removes all things done between the teste and re-
turn. L. Raym. 835. 1305.
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.
And if the defendant be convicted of a capital offence, the per-
son of the defendant must be removed by habeas corpus, in order
to be present in court if he will move in arrest of judgment. And
herein the case of a conviction differs from that of a special ver-
diet; where the presumption of innocence may be supposed to
continue, and therefore the personal presence of the defendant in
that case, is not necessary at the argument of it. Bur. 930.
It hath been holden, that a certiorari for the removal of a re-
cognizance for the good behaviour, or for an appearance at ses-
sions, will supersede its obligation. But this would be highly in-
CERTIORARI.
77
convenient, and the contrary opinion seems to be supported by the
better authority. 2 Hawk. 418.
If a supersedeas come out of a superior court, to the justices,
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-
IV. The return of it.
Every return of a certiorari ought to be under the seal of the
inferior court, or of the justice or justices 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. 2 Hawk. 419..
Also every such return must be made by the very same person
to whom the certiorari is directed. For if it be directed to the
justices of the peace of such a place, and the clerk of the peace
only return it; or to the constable, or to the recorder of B, and
the deputy constable, or deputy recorder return it, without shew-
ing in the return that the principal had power to make a deputy;
nothing is removed. 2 Hawk. 419.
If the certiorari issue to use the record as evidence, then the
tenor, if returned, is sufficient, and countervails the plea of no such
records but if the record is to be proceeded upon, the record itself
must be removed, and this, whether it is before judgment or af-
ter ; and in this case, th£ writ must be superseded, and not qua^h*
ed, which can only be done on a view of the record itself. Wood*>
croft v. Kineston. 2 Atkyns, 317.
Mis Hawkins says, it is advisable, that a return of 'a certiorari
directed to justices of peace for the removal of an indictment
taken before them, have the clause, as 'also to hear and determine
divers felonies, &c. as well in the description of the justices who
make the certificate, as of those before whom the indictment is
said to be taken in the caption. 2 Hawk. 420.
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 significes, shall be awarded, and then
an attachment. Crom. 116.
Besides these general rules which are common to all certiora-
ries, there are many times special directions about them, in par-
ticular cases.
n
CHEAT.
CHEAT.
I. By the Common Law.
II. By Statute.
III. Precedents.
I. By the Common Laruf.
Cheats which are punishable by'the common law, may in gene-
ral be described to be deceitful practices, in defrauding or endea-
vouring to defraud another of his known right, by means of some
artful device, contrary to the plain rules of common honesty : as
by playing with false dice, or by causing an illiterate person to
execute a deed to his prejudice, by reading it over to him in words
different from those in which it was written j or by persuading a
woman to execute writings to another, as her trustee, upon an in-
tended marriage, which in truth contained no such thing, but only
a warrant of attorney to confess a judgment; or by suppressing a
will, and such like. 1 Hawk. 188.
It seemeth to be the better opinion, that the deceitful receiving
of money from one man to another's use, upon a false pretence of
having a message and order to that purpose, is not punishable by
a criminal prosecution, because it is accompanied with no manner
of artful contrivance, but wholly depends on a bare naked lie ; and
and it is said to be needless to provide severe laws for such mis-
chiefs, against which common prudence and caution may be a suf-
ficieiit security. 1 Haw. 188.
A person for a counterfeit pass, was adjudged to the pillory and
fined. Dalt. c. 32.
On an indictment against the defendant, a miller, for changing
corn delivered him to be ground, and giving bad corn instead of it,
it was moved to quash the same, because it was only a private cheat,
and not of a public nature. It was answered, that being a cheat
in the way of trade it concerned the public, and therefore was in-
dictable. And the court was unanimously agreed not to quash it.
T. 16. G. 2. K. and Wood. Sess. c. v. 1.
A person falsely pretending that he had power to discharge sol-
diers, took money of a soldier to discharge him; and being in-
CHEAT.
dieted for the same, the court held the indictment to be good. T.
3. c. Serlestead's case. 1 Latch. 202.
As there are frauds which maybe relieved civilly, and not pun-
ished criminally (with the complaints whereof the courts of equity
do generally abound), so there are other frauds which in a special
case may not be helped civilly, and yet shall be punished criminal-
ly. Thus, if a minor goes about the town, and pretending to be of
age, defrauds many persons by taking credit for considerable quan-
tities of goods, and then insists on his non-age ; the persons in-
jured cannot recover the value of their goods, but they may in-
diet and punish him for a common cheat. Barl. 100.
Finally, the distinction which as it seemeth will solve almost all
cases of this kind, was taken in the case of K. and Wheatleyy H.
1. G. 3. The defendant was indicted and convicted for selling
beer short of the due and just measure, to wit, sixteen gallons as
and for eighteen. It was moved in arrest of judgment j and by
the court, this is only an inconvenience and injury to a private per-
son, arising from that private person's own negligence and care-
lessness in not measuring the liquor upon receiving it, to see
whether it held out the just measure or not. Offences that are in-
dictable must be such as affect the public j as if a man uses false
weights and measures, and sells by them to all or to many of his
customers, or uses them in the general course of his dealing: so
if there is a conspiracy to cheat; for these are deceptions
that common care and prudence are not sufficient to guard
against. These are much more than private injuries: they
are public offences. But in the present case, it is a mere
private imposition or deception; no false weights or measures
are used; no conspiracy; only an' imposition upon the per-
son he was dealing with, in delivering him a less quantity instead
of a greater, which the other carelessly accepted. It is only a non-
performance of his contract; for which non-performance he may
bring his action. So the selling an unsound horse for a sound one
is not indictable: the buyer should be more upon his guard. And
the distinction which was laid down as proper to be attended to
in all cases of this kind, is this ;—that in such impositions or de-
ceits, where common prudence may guard persons against their
suffering from them, the offence is not indictable, but the party is
left to his civil remedy for the redress of the injury that has been
done to him ; but where false weights and measures are used, or
false tokens produced, or such methods taken to cheat and deceive,
30
CHEAT*
as people cannot by any ordinary care or prudence be guarded
against, there it is an offence indictable. Burr. Reports, 1125.
II. By Statute.
If any person, by false representations of his own respectabil-
ity, wealth, or mercantile correspondence and connexions, shall
obtain a credit, and thereby defraud any person or persons of mo-
ney, goods, chattels, or any 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, obtain a credit, and thereby
fraudulently get into possession of goods, wares, merchandize, or
any valuable thing, shall be deemed a cheat and swindler, and on
conviction, shall be sentenced to restore the property so fraudu-
lently obtained, if it can be done, and also to pay a Jine at the dis-
cretion of the court. P. C. p. 130.
If any person or persons shall, by any fraud or shift, circum-
vention, deceit, or unlawful trick or device, or ill practice what-
ever, 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 betting on the sides or hands of such as do or shall play, ob-
tain or require 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 be sentenced to pay a fine of five times the
value of the money, or other thing or things so won as aforesaid,
and also be imprisoned in the common jail of the county, at the
discretion of the court. Ib.
Any person using any deceitful means, (other than those which
have been mentioned in this code,) or practices in matters of
fraud, shall be deemed a cheat and swindler, and on conviction,
shall be sentenced to make restitution to the party defrauded and
cheated, and imprisoned at the discretion of the court. Ib.
Any baker, or other person selling bread under the assize estab-
lished by the corporation of any town, city, or the regulations of
any village, or the rules laid down by any law, shall be deemed a
cheat, and on conviction, shall pay a Jiney or be imprisoned at the
discretion of the court. P. C. p. 131.
If any person shall sell by false weights or measures, he or she
shall be deemed a common cheat, and on conviction, shall be sen-
CHEAT.
81
tenced to pay a fine and be imprisoned, at the discretion of the
court. Ib.
Any other deceitful or artful practice, by which individuals or
the public are defrauded and cheated, shall be punished by fine or
imprisonment, or both, at the discretion of the court. Ib.
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 to be made by law, with such
counterfeit brand or mark, knowing the same to be false and coun-
terfeit, the person so offending, his aiders, counsellors and abet-*
tors, shall, on convifction, be sentenced to pay a fine not exceeding
two hundred dollars, and also undergo an imprisonment in the
common jail of the county, at the discretion of the court. Ib.
Any person who shall put into any bale or bales of cotton, hogs-
head or hogsheads, barrel or barrels, sugar cask, or casks of sugar
or of rice, hogshead or hogsheads, barrel or barrels, cask or casks,
containing 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, every person guilty of this fraudulent practice,
shall be deemed a common cheat, and being indicted and convict-
ed, shall be sentenced to pay a fine, equal to the full value of said
cotton, sugar, rice, pork, beef, or other provisions, and also to un-
dergo an imprisonment in the penitentiary at hard labour, for any
time not exceeding five years. Ib.
All other offences committed by cheating and deceit, or offences
against the public tra,de, not herein enumerated, but which may
occur, or have heretofore been indictable, shall be punished by
fine, at the discretion of the court, and imprisonment in the com-
mon jail of the county. P. C. p. 132. (
Any butcher or other person, selling the flesh of a diseased ani-
mal, or other unwholesome provisions, shall be indicted, and on
conviction, for the first offence, be sentenced to pay a fine, at the
discretion of the court, and for the second offence shall be fined
and imprisoned, at the discretion of the court. P. C. p. 128.
Any baker, brewer, distiller, merchant, grocer, or other person,
selling unwholesome bread, drink or pernicious and adulterated li-
quors, knowing them to be so, shall be indicted, and, on conviction,
L
82
CLERKS.
shall be Jined, at the discretion of the court; and on conviction lor
the second offence, such baker, brewer, distiller, merchant or gro-
cer, shall be sentenced to pay a Jine, and be imprisoned at the dis
cretion of the court. Ib,
III. Precedents. See Appendix—title Cheats.
CLERKS OF THE SUPERIOR AND INFE.
RIOR COURTS.
These officers are appointed on the same day, and in the same
manner of sheriffs, and their vacancies supplied in the same way,
for which, see Sheriff.
The clerks of the several courts in this state, shall copy into a
book of record, all the proceedings in all civ il cases in the said
courts, respectively, which entry of record shall be made within
forty days after the determination of any cause, and the said
clerks shall be allowed the sum of ten cents for every hundred
words of 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 proceedings 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 adjourn-
ment, from day to day.
The clerks of the said superior and inferior courts hereafter to
be appointed, shall, before they enter upon the duties of their ap-
pointments, and after being commissioned by the gov ernor, take
the following oath before one of the judges of the superior courts,
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, by law, ought by me to be recorded,
and that I will faithfully and impaitially discharge and perform
all the duties required of me, to the best of my understanding.'1
And shall also enter into bond, with one or more good and suffi-
cient security or securities to the governor, for the time being, in
the sum of three thousand dollars, conditioned for the faithful dis-
CLERKS.
83
charge 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 ad-
minister all oaths appertaining to the business of their office.
No clerk of a court or other person employed in his office, shall
act as attorney in his own name, or the name of any other person,
or be allowed to plead or practice in such courts during the time
he shall be employed in such office : and that the same person
may be clerk of the superior and inferior court of the same county :
Provided, That nothing herein contained, shall extend to prevent
any officer of the court from prosecuting or defending any suit to
which he is a party. M. & C. 302.
In case of unavoidable accidents, whereby the superior courts in
any county shall not be held at the time appointed for holding the
same, it shall be the duty of the clerk 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. M. & C. 293.
All suits of a civil nature cognizable in the said courts, respec-
tively, shall be by petition to the court, which petition shall con-
tain the plaintiff's charge, allegation or demand, plainly, fully and
distinctly set forth, and be signed by the plaintiff, or his, her or
their attorney, and to which petition the clerk shall annex a pro-
cess signed by such clerk, and bear test in the name of one of the
judges or justices of such court. M. & C. 294.
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 the said courts respectively,
on application, to issue writs of subpoena, directed to the persons
whose attendance 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. M. & C. 298.
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
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 witnesses on such interrogatories as the par-
84
CLERKS.
ties may exhibit; and such examination shall be read at the trial
on motion of either party. M. & C. 299.
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. M. & C. 301.
For clerks duty in selecting jurors—see Jurors.
The clerk of the superior court is authorised to record all deeds
for land lying in the county of which he is the clerk, and to re-
ceive for the same four pence per copy sheet of ninety words.
M. & C. 115.
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 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 thereof; 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.* Clay,
dig. 27.
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 court houses of their respective counties, or within one mile
thereof, or be subject to a fine of thirty dollars a month, so long
as they fail to comply with the law—but to this law the exceptions
are so numerous, as to make it necessary to refer to the different
laws making those exceptions.
The clerks of both courts shall perform all the duties of their
respective offices, between the time of the elections and commis-
sioning their successors, with all the responsibilities to which they
are liable, previous to the election. They must apply for their
commissions within twenty days after their election, and keep
their records in books well bound. Clay. Dig. 541.
• By the act of 1818, this section is construed to inhibit the recording1 only rj
so much of any instrument, as shall relate to the manumitting or setting free any
slave or slaves.
CLERKS.
85
They must take their oath of office, and give the security re-
quired 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 oi the inferior court may declare their appointment va-
cant, and order a new election. Act, 1811, p. 167.
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
in good order. Act, 1813, p. 56.
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 have retired from their respective offices,
in such cases, and in like manner, as they would have been, had
they remained in office. Ib. p. 57.
It shall be the duty of the justices of the inferior courts, to pur-
chase or cause to be purchased out of the county funds, a sufficient
number of well bound blank volumes for the clerks of the superi-
or, inferior, and courts of ordinary, of their respective counties ;
and that it shall be their duty to letter or cause to be lettered and
indexed said volumes, as they in their judgment may think proper,
and have them immediately entered on the minutes of the court.
The justices aforesaid, shall, at the expiration of each year,
cause said clerks to procure a schedule of the books in their re-
spective offices, and have the same duly recorded.
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 infe-
rior court of their respective counties, at the first annual session of
said courts, a correct statement of the several sums of money re-
ceived for county rates, or taxes, or fines, forfeitures, impositions,
license or otherwise, in such method, as that the net proceeds of
the whole revenue of such county, and the amount of the several
disbursements in discharge of the several demands against such
county may distinctly appear; and if any of the said clerks shall
divert, misapply or conceal any of the money belonging to such
Sl>
CLERKS.
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, misap-
plied or concealed, to be recovered before any court having juris-
diction of the same ; and it shall further be the duty of said clerks,
to record such statement of county funds in proper books to be
provided at the expense of each county. Act. 1815, p. 94.
It shall and may be lawful for the justices of the inferior court,
or a majority 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 monies 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 se-
curity or securities, directed to the sheriff or officer authorised to
execute the same, commanding him to levy the same on the estate,
both real and personal, 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 cost thereon; and such
other proceedings shall be had thereon, as are usual on other ex-
ecutions issued upon judgments. Act. 1816, p. 37.
The said clerks shall be allowed to appoint a deputy or deputies
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,
unless 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 responsible for the acts of each and every of their said
deputies and agents. Act. 1817, p. 55.
It shall be the duty of every clerk of the superior court; before
whom any oath required to be taken by the act, to prevent the in-
troduction of slaves into this state shall be made, to keep a bound
book, in which shall be recorded, the affidavit required to be made,
and the certificates necessary to be given agreeable to the provisions
of said act, previous to the introduction of any slave or slaves into
this state ; and also to record in said book, all other instruments of
writing or statements, which may be necessary to be given by him
for carrying the intentions and provisions of this act into effect;
and every such clerk shall receive as a compensation for the ser-
vices rendered necessary to be performed by him, by virtue of this
CLERKS.
H7
act, the sum of two dollars, to be paid by the persons for whose
interest such services may be performed. Act. 181 r, p. 142.
If any officer, after the expiration of the time for which he may
have been appointed or elected, shall wilfully and unlawfully with-
hold or detain from his successor the records, papers, documents,
or other writings appertaining an<d belonging to his office, or muti-
late, destroy, take away, or otherwise prevent the complete pos-
session by his said successor of said records, documents, papers,
or other writings ; such person so offending shall be sentenced to
pay a fine, and to undergo imprisonment in the common jail of the
county as the court may order and direct. P. L. p. 118.
For further duties of the clerks, see Estrays, Jurors, Pedlars,
Roads, Trial of Slaves, and Weights and Measures.
Fees of the Clerk of the Superior Court in civil cases.
Every suit commenced therein, if settled before judgment and
each non-siiit, seven shillings.
For each copy of a writ, where there are more than one defen-
dant, after the first copy, two shillings and four pence.
Every suit so commenced and prosecuted to judgment, in-
eluding every service to entering up satisfaction, fourteen shil-
lings.
For each appeal if settled before verdict, four shillings and
eight pence.
For each appeal prosecuted to judgment, including every ser-
vice to entering up satisfaction, nine shillings and four pence.
For every writ of subpoena and ticket, seven pence.
For a writ of partition of land, fourteen shillings.
For issuing a commission to examine witnesses, four shillings
and eight pence.
For making out letters of guardianship and taking security, four
shillings and eight pence.
For every order for the sale of land and copy thereof, two shil-
lings and four pence.
Recording any instrument of writing per copy sheet, one six-
teenth part of a dollar.
Each search, seven pence.
A certified copy of any record, per copy sheet, three pence
halfpenny.
For every foreclosure of a mortgage and recording proceedings,
four shillings and eight pence.
88
CLERKS.
Every inquiry of title respecting property levied on by tlie
sheriff and claimed by a third person, four shillings and eight
pence.
Every tavern license, including every service therein, four shii-
lings and eight pence.
For each affidavit made by persons wishing to introduce slaves
into the state, two dollars.
Fees of the Clerk of the Inferior Court in civil cases.
For each cause settled before judgment and each appeal to the
superior court, seven shillings.
For each copy of a writ where there are more than one defen-
dant, after the first copy, two shillings and four pence.
Each cause commenced therein and prosecuted to judgment not
appealed from, including every service to entering up satisfaction,
fourteen shillings.
For subpoena tickets, commissions and letters of guardianship,
and inquiries respecting property claimed, non-suits and any other
service performed; the same fees as allowed to the clerk of the
superior court.
Each appeal prosecuted to judgment from a justice's court,
four shillings and eight pence, if settled by the parties, two shil-
lings and four pence, including every service to entering satis-
faction.
For entering estrays, fifty cents.
For advertising each head of neat cattle, twenty five cents.
For each horse, &c. fifty cents.
For each weight or measure stamped, six and a quarter cents.
For each Pedlar's license, Two dollars.
ClerFs Fees in Criminal Cases.
Every writ and seal, one shilling and two pence.
Every pannel of a jury, one shilling and two pence.
Order for fine on a juror (unless excuse made) and entering
the same, one shilling and two pence.
Ordering a fine peremptory, entering and reading, one shilling
and two pence.
Copying the same for the attorney general, one shilling and
two pence.
CLERKS.
89
Fee on a writ of capias and seal, one shilling and two pence.
The clerk's attendance in hearing a motion in arrest of judg-
ment, or at the judge's chambers on a petition preferred, or aha-
beas corpus, or to take the examination or information of any pe»-
son, three shillings and sixpence.
Taking an examination, information or affidavit, per copy sheet,
one sixteenth part of a dollar.
Drawing a warrant, one shilling and two pence.
A commitment or liberate, one shilling and two pence.
Taking an acknowledgment of bail before the judge, or in court,
and drawing recognizance thereof, two shillings and four pence.
Every subpoena ticket, seven pence.
' Every indictment if the criminal be found guilty, two shillings
and four pence.
Every arraignment, or charging a defendant with indictment, if
found guilty, one shilling and two pence.
Entering a plea, seven pence.
Calling a jury, seven pence. ,
Clerk's attendance on every cause tried, one shilling and two
pence.
Every sentence or judgment, and entering the same, one shil-
ling and two pence.
Copy of every indictment or other paper, four pence.
Copy of judgment to the sheriff and order thereon, one shilling
and two pence.
Calling a traverse or discharging a recognizance, one shilling
and two pence.
Recording the proceedings of a cause, per copy sheet, one six-
teenth part of a dollar.
Every person acquitted by proclamation, one shilling and two
pence.
Every search, seven pence.
A writ of dedimus potestatem, four shillings and eight pence.
Renewal of capias, one shilling and two pence.
All the above fees subject to an increase of 50 per cent, accord-
ing to the act of 1818.
M
n
COMMITMENT
COMMITMENT.
Since the habeas corpus act, a commitment in writing seems
more necessary than it was in former times ; otherwise the prison-
er may be admitted to bail upon that act, whatsoever his offence
may have been. ^
When a statute appoints imprisonment, bnfclimits no time, when
jt is to be understood that he shall be imprisoned presently, Dalt
C. 170 f
I. Who may be committed,
II. To what Place.
III. The form of the Commitment.
IV. Charges of the Commitment.
V. That the Gaoler shall receive the Prisoner.
VI. Shall certify the Commitment.
VII. Commitment discharged.
VIII. Precedents,
I. Who may be committed.
There is no doubt but that persons apprehended for
which are not bailable, and also all persons who neglect
bail for offences which are bailable, must be committed.
116.
And it is said, that wheresoever a justice is empowered by any
statute to bind a person over, or to cause him to do a certain thing,
and such person being in his presence shall retuse to be bound, or
to do such thing, the justice may commit him to goal, to remain
there till he shall comply. 2 Haw. 116,
If a prisoner be brought before a justice, expressly charged
with felony upon oath, the justice cannot discharge him, but must
bail or commit him. 2 H, H. 121.
But if he be charged with suspicion only of felony, yet if there
be no felony at all proved to be committed, or if the fact charged
as a felony be in truth no felony in point of law, the justice may
discharge him ; as if a man be charged with felony for stealing a
parcel of the freehold, or for carrying away what was delivered to
him, and such like j for which, though there may be cause to bind
offences
to offer
2 Haw.
COMMITMENT.
81
him over as for a trespass, the justice may discharge him as to
felony, because it is not felony. But if a man be killed by another^
though it be by misadventure, or self-defence, (which Is not pro-
perly felony) or in making an assault upon a minister of justice ill
execution of his office, (which is not at all felony,) yet the justice
ought not to discharge him ; for he must undergo his trial for it J
and therefore he must be committed, or at least bailed. 2 H.
H. 121.
But commitment by the justices of the peace almost in all cases
(except for the peace, good behaviour, felony, or higher offences)
is but to retain the party till he hath made fine to the state ; and
therefore, if he offer to pay it, or find sureties by recognizance to
pay it, he ought not to be committed, but to be delivered present-
ly. Dalt. c. 170.
It. To what Place.
All felons shall be committed to the comftioli jail, and not else*
where. Generally, if a man commit felony in one county, and be
arrested for the same in another county, he shall be committed to
jail in the county where he is taken. Dalt. c. 170.
Yet if he escape, and be taken on fresh suit, in another county^
he may be carried back to the county where he was first taken*
Dalt. c. 170.
III. Form of the Commitment.
It must be in writing, either in the name of the state, and only
tested by the person who makes it, or it may be made by such
person in his own name, expressing his office or authority, and
must be directed to the jailer or keeper of the prison. 2 Haw.
119.
Yet the mention of the name and authority of the justice, (lord
Hale says,) in the beginning of the mittimus, is not always neces*
sary, for the seal and subscription of the justice to the mittimus is
sufficient warrant to the jailer ; for it may be supplied by averment)
that it was done by the justice. 2 H. H. 122.
It should contain the name and surname of the party commit-
ted, if known; if not known, then it may be sufficient to describe
the person by his age, stature, complexion, colour of his hair and
92
COMMITMENT.
the like, and to add, that he refuseth to tell his name. 1 H. H
577.
It is safe, but not necessary, to set forth that the party is charg-
ed upon oath. 2 Haw. 120.
It ought to contain the cause, as for treason, or felony, or suspi-
cion thereof ; otherwise if it contain no cause at all, if the prison-
er escape it is no offence at all; whereas if the mittimus contain-
ed the cause, the escape were treason, or felony, though he were
not guilty of the offence ; and therefore for the state's benefit, and
that the prisoner may be the more safely kept, the mittimus ought
to contain the cause. 2 Inst. 52. 1 Ed. 2. St. 2.
And hereupon it appeareth, that a warrant or mittimus to an-
swer to such things as shall be objected against him, is utterly
against law. 2 Inst. 591.
Also it ought to contain the certainty of the cause, and therefore
if it be for felouy, it ought not to be generally for felony, but it
must contain the special nature of the felony, briefly, as for fe-
lony for the death of such a one, or for burglary in breaking the
house of such a one j and the reason is, because it may appear to
the judges of the court upon a habeas corpus, whether it be for
felony or not. 2 H. H. 122.
But the want thereof seems net to make the commitment abso-
lutely void, so as to subject the gaoler to a false imprisonment; but
it lies in averment to excuse the gaoler or officer that the matter
was for felony. 1 H. H. 584.
It must have an apt conclusion; as if it is for felony ; to detain
him till he be thence delivered by law ; or by order of law, or by
due course of law. 2 Haw. 120. 2 H. H. 123.
But if the conclusion be irregular, it doth not seem to make the
warrant void, but the law will reject that which is surplusage, and
the rest shall stand; so that if the matter appear to be such, foi;
which he is to remain in custody, or be bailed, he shall be bailed
or committed, as the case requires, and not discharged, but the
wrong conclusion shall be rejected. 1 H. H„ 584.
Where a statute appoints imprisonment, but limits no time how
long, in such case the prisoner must remain at the discretion of
the court. Dalt. c. 170.
It must be under seal; and without this the commitment is un-
lawful, the gaoler is liable to false imprisonment, and the wilful
COMMITMENT.
escape by the gaoler, or breach of prison by the felon, makes no
felony. 1 HfH. 583.
But this must not be intended of a commitment by the superior
court, or other court of record, for there the record itself, or the
memorial thereof, which may at any time be entered of record, is
a sufficient warrant, without any warrant under seal. 1 H. H. 584.
It should also set forth the place at which it is made, that it
may appear to be within the jurisdiction of the justice. 2 Haw.
119.
It must also have a certain date, of the year and day. 2 H. H.
123.
IV. Charges of the Commitment.
To be paid by the party committed, and if unable, by the county.
V. Gaoler shall receive the Prisoner.
If the gaoler shall refuse to receive a felon, or take any thing
for receiving him, he shall be punished for the same by the jus-
tices of gaol delivery. 2 Ed. 3. c. 10. Dalt. c. 170.
If any sheriff, coroner, keeper of a jail, or other officer, shall
wilfully refuse to receive any offender charged with or guilty of
an indictable offence, or committed as a witness on the part of this
state, or having such offender or witness in his custody, shall
voluntarily permit or suffer him or her to escape and go at large,
then every such sheriff, coroner, keeper of a jail, constable, or
other officer or person so offending, shall, on cpnviction, undergo
an imprisonment in the penitentiary, for a period of time not ex-
eeeding seven years. P. C. p. 120.
But if a man be committed for felony, and the gaoler will not
receive him, the person that arrested him may in such case keep
the prisoner in his own house, as it seemeth. Dalt. c. 170.
But in other cases it seems, that regularly, no one can justify
the detaining a prisoner in custody out of the common jail, unless
there be some particular reason for so doing; as if the party be so
u
COMMITMENT*
dangerously sick, that it would apparently hazard his life, to send
him to the gaol, or there be evident danger of a rescous from re-
bels, or the like. 1 Haw. 118.
VI. Shall certify the Commitment*
By the 3 H. 7. c. 3. the sheriff or goaler shall certify the com-
mitment to the next gaol delivery. •
VII. Commitment discharged.
It seems that a person legally committed for a crime, certainly
appearing to have been done by some one or other, cannot be law-
fully discharged by any one but the state, till he be acquitted on
his trial, or have an ignoramus found by the grand jury, or none
to prosecute him on a proclamation for that purpose, by the jus-
tices of gaol delivery. But if a person be committed on a bare1
suspicion, without an indictment for a supposed crime, w here af-
terwards it appears that there was none, as for the murder of a
person thought to be dead, who afterwards is found to be alive;
it hath been holden that he may be safely dismissed without any
farther proceeding, for that he who suffers him to escape, is pro-
perly punishable only as an accessary to his supposed offence; and
it is impossible that there should be an accessary, where there can
be no principal; and it would be hard to punish one for a contempt,
in disregarding a commitment founded on a suspicion, appearing
in so uncontested a manner to be groundless. 2 Haw. 121.
VIII. Precedents. See Appendix—title Commitment,
CONFESSION.
95
COMPOUNDING FELONY.
If any person shall take money, goods, chattels, lands or other
reward, on promise to compound any treason, exciting, or attempt-
ing to stir up and excite an insurrection or revolt of slaves, mur-
der, manslaughter, rape, sodomy, arson, forgery, burglary, house-
breaking, robbery, larceny, receiving stolen goods or other pro-
perty, escape, rescue, breach of prison, bribery, perjury, or subor-
nation of perjury, or any other offence 'heretofore denominated
felony, or any offence punishable in this code with imprisonment
in the penitentiary at hard labour, or in solitude, for a period of
two years or longer ; every person so offending, shall, on convic-
tion, be sentenced to undergo an imprisonment in the penitentiary,
for any time not exceeding five years. P. C. p. 121.
If any person informing or prosecuting under pretence of any
penal law, shall compound with the offender, or direct the suit or
information to be discontinued, unless it be by leave of the court
where the same is brought, every person so offending, shall, on con-
viction, be sentenced to pay a jine equal to so much of the penal-
ty, as he or she would be entitled to, if the defendant or party
prosecuted had been found guilty or convicted. Ib.
CONFESSION".
Confession is two-fold, either express or implied.
An express confession is where a person directly confesses the
crime With which he is charged; which is the highest conviction
that can be. 2 Haw. 333.
Biit it is usual for the court, especially if it be out of clergy, to
advise the party to plead, and put himself upon his trial, and not
presently to record his confession, but to admit him to plead. 2
H.H. 225.
An implied confession is where a defendant, in a case not capi-
tal, doth not directly own himself guilty, but in a manner admits it
by yielding to the state's mercy, and desiring to submit to a small
fine, which submission the court may accept of, if they think fit,
without putting him to a direct confession. 2 H. H. 333,
9G
CONSPIRACY.
It seems that the confession of the defendant, taken upon ex-
amination before justices of the peace, or in discourse with pri-
vate persons, may be given in evidence against the party con-
fessing, but not against others. 2 Haw. 429.
All those who on their examination own themselves guilty of a
felony alleged against them, and are charged in their mittimus with
the felony so confessed, seem to be excluded from bail; for bail is
only proper, where it stands indifferent, whether the party be guil-
ty or innocent. 2 Haw. 97.—Confessions on examination before
magistrates ought not to be sworn to, because that is making a
party a witness against himself.
CONSPIRACY.
I. What it is.
II. How punishable.
I. What it is.
By the common law there can be no doubt but that all confede-
racies whatsoever, wrongfully to prejudice a third person, are
highly criminal; as where divers persons confederate together,
by indirect means to impoverish a third person, or falsely and ma-
liciously to charge a man with being the reputed father of a bas-
tard child, or to maintain one another in any matter whether it
be true or false. 1 Haw. 190.
And conspiracy by statute is as follows: Conspirators are they
that do confederate or bind themselves by oath, covenant, or other
alliance, that every of them shall aid and bear the other falsely
and maliciously to indict, or cause to indict, or falsely to move or
maintain pleas ; and such as retain men in the county, with live-
ries or fees to maintain their malicious enterprizes ; and this ex-
tendeth as well to the takers, as to the givers.
One person alone cannot be guilty of conspiracy; from whence
It follows, that if all the defendants who are prosecuted for such a
conspiracy be acquitted but one, the acquittal of the rest is the ac-
quittal of that one also: and upon the same ground it hath been
holden, that no such prosecution is maintainable against a husband
CONSPIRACY.
97
and wife, only because they are esteemed but as one person in law:
but it is certain that an action on the case, in the nature of a con-
spiracy, may be brought against one only ; also, it hath been re-
solved, that if such an action be brought against several persons,
and all but one be acquitted, yet judgment may be given against
that one only. 1 Haw. 192.
In the case of K. against Kinnersley and Moore, T. 5 G. An
information was brought, setting forth that the defendants, being
evil disposed persons, in order to extort money from my lord Sun-
derland, did conspire together to charge my lord with endeavour-
ing to commit sodomy with the said Moore. The defendant
Kinnersley only, appears, and pleads to issue, and is found guilty.
And now exception was taken in arrest of judgment, that to every
conspiracy there must be two persons at least, whereas here is on-
ly one brought in and found guilty, and the other possibly may be
acquitted. But it was answered, that this is arguing from what
has not happened, and probably never will j for though Moore
may have an opportunity to acquit himself, and is not concluded
by the verdict as Kinnersley is, yet as the matter now stands,
Moore himself is found guilty, for the conspiracy is found as it is
laid, and therefore j udgment may be given against one before the
trial of the other. And a case was quoted, where several were
indicted for a riot, with many others, and two only were found
guilty ; and it was objected there must be three to make a riot;
but upon the words, with many others, judgment was given against
the defendants, and the court overruled the exception, and the de-
fendant had sentence ; and in the Easter term following, Moore
also was convicted and had judgment. Str. 193.
An E. 18, G. 2. K. against Elizabeth Nicols; she was indicted for
conspiring with Thomas By grave, unjustly to charge William
Frankland with a robbery, and for that purpose going before a
justice, where By grave swore it upon him. Nicols only came in
and pleaded not guilty, and the jury found that she was guilty,
but that By grave died before the indictment was preferred. Ex-
ception was taken, that one alone cannot be guilty of a conspiracy,
and here is but one convicted; but the court overruled this, on
the authority of Kinnersley*s case, in which case there was a pos-
sibility of contradictory verdicts, which here cannot be. Str. 1227.
In a prosecution for a conspiracy, the actual fact of conspiring
need not be proved, but it may be inferred from circumstances,
and the concurring conduct of the defendants. 1 Bl. Rep. 39£,
N
98
CONSTABLE
II. How punished.
If any two or more persons shall conspire or agree falsely and
maliciously, to charge or indict, or to cause or procure to be
charged and indicted any person, he, she or they, so offending
shall, on conviction, be sentenced to undergo an imprisonment at
hard labour in the penitentiary, for a period of time not exceeding
five years. P. C. p. 122.
CONSTABLE.
For many parts of the duty of constables, see titles, Affray, Ar~
rest and Warrant.
Every constable by the common law, is a principal conservator
of the peace. 2 Hawk, 33.
The power of a constable in suppressing an affray, &c. has al-
read) beeh shewn under title,4 Affray] which see.
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 authorises a
justice of the peace to convict a man of a crime, and to levy the
penalty by warrant of distress, without saying to whom such war-
rant shall be directed, or by whom it shall be executed, the con-
stable is the proper officer to execute it, and indictable for dis-
obeying it. 2 Hawk. 252.
That the inferior court shall, at their first term in each year, ap-
point at least one and not more than two fit and proper person or
persons in each militia company district to serve as constables,
who shall hold their appointments for one year, and until a sue-
cessor shall be appointed ; and before such constables enter on the
duties of their appointments, they shall give bond and good secu-
rity to the governor of this state for the time being, in the sum
of one hundred and fifty dollars for the faithful discharge of their
duties, and shall also take the following oath before a justice of
the inferior court, or justice of the peace: 441 do solemnly swear
or affirm, that I will duly and faithfully perform all the duties
required of me as constable of the county of —-——, according to
CONSTABLE. 99
the best of my .abilities and understandingAnd where it shall
so happen, that no fit and proper person or persons offer them-
selves as candidates, the said court shall pass an order directing
the justices in any district, or one of them, to draw not exceeding
two persons from such company, to serve as aforesaid, who shall
be liable to a fine of forty dollars, to be levied by order of the
said inferior court, on refusal to act, or procure some other per-
son to serve for him. Maur. & Craw, Dig. p. 202.
That any justice of the peace may in cases where there is no
constable in his district, either from death, removal, or otherwise,
authorise some person to execute the duties of constable until
such vacancy is filled. Ib,
And for the better keeping of good order on the Lord's day,
the church wardens and constables of each parish respectively, or
any one or more of them, shall once in the forenoon and once in
the afternoon, in the time of divine service, walk through the town
of Savannah, and the respective towns of this province, to ob-
serve, suppress and apprehend all offenders whatsoever, contrary
to the true intent and meaning of this act; and they shall have
power, and are hereby authorised and empowered to enter into
any public house, or tippling house, to search for any such offend-
er, and in case they are denied entrance, shall have power, and
are hereby authorised and empowered to break open, or cause to
be broke open any of the doors of the said house, and enter there-
in ; and all persons whatsoever are strictly commanded and re-
quired to be aiding and assisting to any constable or other officer
in the execution of this act, on the penalty of ten shillings sterling
for every refusal. Maur. & Craw. Dig. p. 411.
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 con-
stable serving the summons or warrant, to make an entry of ser-
vice thereon in writing, and sign such return. Acts 1811, p. 5.
Constables are authorised and bound to levy all attachments re-
turnable to either the justices, the inferior or superior courts in
the county where he is constable, and advertise the same if return-
able to a justice's court, at the place of holding said court, and at
©ne or more public places in said county, at least fifteen days pre-
100
CONSTABLE.
vious to the court j and if returnable to either of the other court*,
at the court house of the county, at least thirty days before the sit-
ting of the court.
Constables are required to summon all juries for justices courts,
and to attend the same.
That it shall be the duty of constables to advertise all intended
sales, at two or more of the most public places in their proper dis-
trict, 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 constable's sales
shall be at the place of holding justices courts, in the several com-
pany districts, and on a court day, and that between the hours of
ten and three o'clock. Acts 1811, p. 15.
That no constable shall be authorised 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; and then, and in that case,
they are hereby authorised to levy on the same wherever to be
found, and deliver over the execution or executions 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. Ib.
That a reasonable compensation shall be allowed to constables
for carrying property levied on to the place of sale, when there
appears an absolute necessity for so doing, to be adjudged of by
the justice or justices resident in said district. Ib. p. 16.
That it shall be the duty of the constables of the several dis-
tricts 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 returnable; and if any constable shall fail to execute and
make returns, or to pay to or account with any person for whom
he may have received money on any execution, within ten days
after the reception thereof, the person so injured as aforesaid, may
make application to any justice within the district where said con-
stable may reside, (and in case there should be no justice in said
district, then an application to a justice in any adjacent district,)
whose duty it shall be to grant a warrant to such applicant against
such constable, and such justice shall, upon proof thereof, award
judgment and execution for the same, and all costs against such con-
stable, and also fine him for such abuse, in a sum not exceeding ten
per cent, on the amount so withheld ; and in case of neglect or re-
CONSTABLE.
101
fusal to serve and return any warrant or summons as aforesaid,
may fine the constable so offending, in a sum not exceeding the
amount of the debt due by the defendant j and all constables shall
moreover be subject to be prosecuted and tried for mal-practice in
office, in like manner as herein pointed out for justices of the peace,
and liable to like pains and penalties. Ib.
That it shall be lawful for any constable of the county to serve
any warrant or summons wherein any justice of the peace or con-
stable may be a party j and to summons any witnesses J and to
serve any bail warrant or attachment; and to 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 dis-
trict, 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. Ib. p. 18.
Thai the justice or justices in any district having no constable,
is hereby authorised and empowered to appoint not exceeding two
fit and proper persons within the said district, to whom they shall
administer the oath of office, who shall give bond and security as
pointed out by law. And the person or persons so appointed shall
continue in office until the next inferior court, and until a successor
is duly appointed and qualified. Ib. p. 19.
It shall be lawful for constables to open and attend all elections
which may be held in this state, in cases where a sheriff cannot be
obtained to perform said duties. Acts 1813, p. 43.
That all constables hereafter appointed, shall, before they enter
upon the duties of their appointments, takp the oath, heretofore
prescribed, before any justice of the inferior court or justice of
the peace ; and shall give bond, with two or more good and suf-
ficient securities,'to be judged of by the justices of the peace in
their respective districts, in the sum of five hundred dollars, to the
justices of the inferior court, conditioned for the true and faithful
discharge of the duties of their office ; and in all districts situated
in towns, they are to give bond and security in like manner, in the
sum of one thousand dollars ; which bond or bonds so given, shall
be deposited in the clerk's office of the inferior courts of the re-
"spective counties in this state, and be taken by or before any jus-
tice of the peace, and may be sued by order of the inferior court,
upon the application of any person or persons who shall make it
satisfactorily appear, that they have been injured by the miscon-
duct or neglect of duty in said constable, which suit shall be brought
102
CONSTABLE.
in the superior courts, for the use of the person or persons so in-
jvired. Act 1816, p. 38, amended b) act of 1818, 88.
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. Acts
1818, p. 88.
If any person shall obstruct, resist or oppose a constable in serv-
ing or attempting to serve or execute a lawful process or order of
any court, judge, justice or arbitrators, or shall assault or beat him
in the execution of any of said duties, the person so offending,
shall, on conviction, be imprisoned in the common jail for any time
not exceeding one year; and if any constable under colour of his
commission shall assault or beat any individual, without a lawful
necessity so to do, he shall suffer like punishment. P. C. p. 118.
If any constable, having any offender, guilty or accused of, or
confined for any crime, in his custody, shall, voluntarily permit or
suffer such offender to escape and go at large, such constable, on
conviction, shall undergo an imprisonment in the penitentiary for
any time not less than five, nor more than seven years. P. C. p. 120.
If any constable shall refuse to receive any offender, or any per-
son committed as a state's witness, or having such offender or wit-
ness in his custody, shall, voluntarily permit or suffer them to es-
cape and go at large, shall, on conviction, suffer an imprisonment,
in the penitentiary, for a period not exceeding seven years. P. C. Ib.
Constables' Fees.
In civil cases, upon xvhich, by act of 1818, is to be laid 50 per cent.
% c.
For serving a warrant, summons, or subprena, - - 25
For each additional copy, 25
For attending each trial in a justice's court, - - - 25
For summoning a jury, - - - - 50
For each cause tried by a justice, - 25'
For levying and advertising an attachment, - - - 25
For levying a ca. sa. or execution, and advertising, - 25
For carrying a negro to and from jail, when under
execution, per mile, - -- -- -- -- - 4
CONSTABLES. 103
$ C.
For keeping a horse, mare, mule, ass, or ox, per day, 12|
For each head of neat cattle, per day, ----- 3
For each head of sheep, goats or hogs, per day, - - %
On all sales made by them, five per centum on the
amount.
In Criminal Cases.
$ c.
For attending the grand jury for each bill found, to be
paid by the delinquent, - -- -- -- -- 25
Serving a warrant in criminal cases, ----- 1 00
For carrying a prisoner to jail, per mile, - - - - 4
For keeping and maintaining a prisoner, before ex-
animation, not exceeding 24 hours, ----- 25
For whipping a negro, by sentence of a court, - - 1 8
For executing one, -----------3 25
That all and every the constable and constables in the several
parishes within this province, where any slave shall be sentenced to
suffer death, or other punishment, shall cause execution to be done
of all the orders, warrants, precepts and judgments of the justices
hereby appointed, to try such slaves, for the charge and trouble of
which the said constable or constables respectively shall be paid by
the public, unless in such cases as shall appear to the said justice or
justices to be malicious or groundless prosecutions ; in which cases
the said charges shall be paid by the prosecutors, for whipping or
other corporeal punishments not extending to life, the sum of five
shillings, and for any punishment extending to life, the sum of fifteen
shillings, and such other charges for keeping and maintaining such
slaves, as are by the act for erecting the workhouse appointed j for
the levying of which charges against the prosecutor, the justices
are hereby empowered to issue their warrant. Maur. & Craw.
Dig. 432.
104
CORONER.
Conviction.
Where a special power is given to a justice of the peace, by
statute or act of assembly, to convict an offender in a summary
way without a trial by jury, it must appear that he hath strictly
pursued that power, otherwise the proceeding will be void. There
must be an information or charge he must be summoned and
have notice of the charge, and an opportunity to make his defence ;
and the evidence against him must be such as the common law
approves of, unless the statute or act specially direct otherwise.
Then, if the person is found guilty, there must be a conviction,
judgment, and execution directed and influenced by the special
authority given by the statute or act; and in the conclusion there
must be a record of the whole, setting forth the particular manner
and circumstances. Where penalties are to be recovered by ac-
tion of debt, or by warrant as for a debt, before j ustices there needs
not the same formality. Pot. Jus. p. 64.
coroner.
Coroners are appointed by the people, and hold their office two
years, and are elected at the same time with the county officers—
which election, by act of 1811, was to be holden on the first Mon-
day in January, 1814, and on the first Monday in January, every
second year thereafter.
I. His power as a Judicial Officer.
II. His power as a Ministerial Officer.
III. His Fees.
IV. Precedents.
I. His power as a Judicial Officer.
He ought to execute his office in person, for he is a judicial ofH-
cer. Wood's Inst. 83,
CORONER.
105
By Holt, C. J. the coroner need not go ex officio to take the in-
quest, but ought to be sent for, and that, when the body is fresh j
and to bury the body before, or without sending for the coroner,
is a misdemeanour. Salk. 377. 2 Hawk. (6 ed.) 78. note (3.)
The judicial office of a coroner, being confined to the taking of
inquisitions on the death of persons, who came to a violent or un-
natural death, and that upon view of the body alone ; it is a matter
punishable by amercement to let a body lie, till putrefaction, with-
out giving him notice. Wood. B. 4. ch. 1. p. 491. 2 H. H. Sum-
mary, 170.
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
possibly presumed that the prisoner died by the ill usage of the
jailer. 2 H. H. 57. 2 Hawk. (6 ed.) 77.
For if a prisoner, by the ill usage of the jailer, comes to an un-
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 of otherwise : and this sitting of
the coroner continueth to this day. 3 Inst. 52.
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.
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 will exercise their discretion according to the length
of time the body has lain, and the circumstances of the case.
Salk. 377. Stra. 22.
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
before the coroner is called in to take the inquest, that no assis-
tance can be had from the view, he ought not to proceed. In such
eases, the inquiry may be by witnesses of the felony, by justices
of the peace, justices of oyer and terminer, or in a court by pre-
sentment of the grand jury. See Wood's Inst. 491. 2 Hawk. 78.
2 H. H. 59.
Where the body had been buried five years and the skull was
dug up, which the coroner assured the jury was the skull of the
O
106
CORONER.
deceased, and the inquest was taken upon that, the court refused
to file the inquisition. Stra. 22. R. v. Bond.
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 jD. on the view of a body lying
dead at L. may be good. 2 Hawk. 78.
A coroner hath no power, either by common law or statute, to
inquire of any accessories after the fact to a felony j but of acces-
sories before he hath such power. 2 Hawk. 78.
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.
For mismanagement in the coroner, &c. the filing of the inqui-
sition may be stopped, or the coroner may be ordered to attend
and amend his inquisition. Wood's Inst. 492.
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.
If the constables make not a return, or the jurors returned ap-
peal not, their defaults are to be returned to the coroner j and the
constables or jurors in default shall be amerced by the court, hav-
cognizance of the proceedings. 2 H. H. 59.
The jury appearing is to be sworn and charged by the coroner,
to inquire upon view of the body, how the party came by his death.
2 H. H. 60.
The opinion formerly held that a coroner's inquest was not tra-
versable, is now generally exploded. 1 Bac. Abr. Coron. D. 2
Hawk. 81.
II. His poxver as a Ministerial Officer.
That all process issued by the clerks of the said courts respec-
tively, where the sheriff, who ought to execute the same, shall be
any wise interested, shall be directed to the coroner of such county,
and served and returned by him in the same manner, as is requir-
ed of sheriffs. Maur. & Craw. Dig. p. 294.
DAMS.
III. His Fees.
For summoning an inquest on a dead body, and re-
turning the inquisition, (to be paid by the county, if
the deceased's estate is unable,) ------ gio
For providing a coffin and burial expenses, (to be paid
in like manner as above,) - -- -- -- - $3
In all other cases the same as the sheriff; upon the above fees
fifty per cent.
IV. Precedents. See Appendix, title Coroner.
Counterfeiting, see Forgery.
DAMS.
I. Dams in rice fields.
II. Dams in rivers, creeks, &?c.
I. Dams in rice fields,
Every person who shall keep water during the winter, upon
grounds on which rice shall be planted the ensuing spring, shall,
on or before the fifth day of March next, and on the fifth day of
March in each year, open the dams which keep up the water in a
sufficient manner for letting off the same ; and if any person or
persons shall neglect so to do, on or before the time aforesaid, he
or she, shall forfeit and pay the sum of one hundred pounds for
every such neglect, upon the complaint or information of any per-
son or persons through whose land such water may pass ; and it
shall and may be lawful for such person to inform and sue for
the same in any court of record in the county where such offence
is committed, and on conviction, the one half thereof shall be paid
108
DAMS.
to the informer, and the other half to the use of the poor of the
said county. Maur. & Craw: Dig. p. 179.
Where any person has neglected to open his or her dam or
dams in a sufficient manner for letting the water off the grounds
before described, on or before the fifth day of March in every year,
in manner aforesaid, it shall and may be lawful for any person,
who may be affected thereby, at any time after the day aforesaid,
in every year, either by himself or herself, or his or her overseer,
agent, attorney or trustee, to apply to any magistrate in the dis-
trict for a warrant of survey, who shall thereupon notify to the
defendant the complaint made against him, with the time and place
of meeting, and summons three freeholders, disinterested persons
of the neighbourhood or district where the cause of complaint
shall lie, one of whom shall be then chosen by the defendant, and
in case of his refusal, then by the magistrate, another by the com-
plainant, and the third by the magistrate, who (being first sworn
before the magistrate to determine the matter in dispute justly
and impartially) shall forthwith proceed to view the obstructions
complained of; and if on view thereof the said free holders, or a
majority of them, shall be of opinion that such obstructions do or
may prevent the party complaining from planting his or her crop
of rice in proper time, then and in such case, it shall and may be
lawful for the said freeholders, or a majority of them, to cause
the same to be immediately opened or removed in any way or
manner they shall think necessary, for the purpose of giving the
most effectual relief to the party complaining ; whereupon, the de-
fendant shall be obliged to pay all expenses attending such sur-
vey: Prdvided always, That nothing herein contained shall extend,
or be construed to. extend, to impose any penalty on any person
-or persons, or to cause his or her dams or banks to be opened,
who shall have made through his or her own lands, a sufficient
drain or drains ^of which the said freeholders shall be the judges)
to carry off the waters passing through the same, in as expeditious
a manner as they could have passed through the natural courses
or channels, in case no such banks had been erected. Ib. 180.
Any person, at any time between the said fifth day of March,
and the first day of November in every year, may apply in manner
aforesaid, for a warrant of survey on any obstructions vchich he
or she may conceive to impede the conveying of any surplus wra-
ter on his or her rice grounds, and which by remaining thereon
dams.
109
may prove any way injurious, or shall, at any time, hereafter,
make or keep up any dam or dams which shall stop the course
of any water, so as to overflow the lands of any other person or
persons whatever, (without the consent of such person or persons
first had and obtained,) and which shall be injurious to the said
person or persons ; then in either of such cases, the said magis-
trate, and the freeholders by him appointed, shall proceed in the
same manner as is directed in the foregoing clause : Provided al-
ways, That if in either of the Oases last mentioned, the defendant
shall neglect or refuse to attend at the survey to choose a free-
holder as aforesaid j then the three freeholders, who shall have
been summoned by the magistrate, shall proceed to determine the
matter in dispute, in the same manner as if the defendant had been
present, and had chosen a freeholder; which said freeholders
shall in both cases certify to the magistrate, under their hands,
what shall have been by them done in the premises ; the expenses
attending which survey, shall be paid by the party against whom
the award of the said freeholders shall be given. Ib.
If any person either by himself or herself, or by his or her over-
seer, agent, attorney or trustee, or servants or slaves, or any other
person or persons acting for him or her, shall presume to stop up
any dam or dams, or replace any obstructions in any manner what-
soever, which has or have been ordered to be opened or removed
by any freeholders as aforesaid, or which has or have been opened
or removed by himself or herself, or his or her overseer, agent,
attorney or trustee, or by order of either of them on the said fifth
day of March, until the first day of July, every person, so offend-
ing, shall forfeit and pay the sum of two hundred pounds, to be
recovered and disposed of in manner aforesaid. And if any per-
son shall presume to obstruct, impede, or otherwise hinder or in-
terrupt the opening of any dam or dams, or the removing of any
obstructions ordered to be opened or removed by the freeholders
as aforesaid, every person, so offending, shall forfeit and pay for
every such offence, the sum of two hundred and fifty pounds, to
be recovered and disposed of in manner aforesaid. Ib. p. 181.
Where any dam or dams have been made, or shall hereafter be
made, for the purpose of forming reservoirs of water, without a
sufficient wasteway, and which now are or shall hereafter be found
inadequate to sustain the weight of water against the same, the
owner of such dam or dams shall immediately, or as soon as may
be, cause the same to be enlarged and strengthened where they are
110
DAMS.
already made, and are insufficient; and such as may hereafter be
made, to be erected in a substantial manner, with a sufficient waste-
way. And if any person shall neglect to strengthen his or her
dam or dams, already erected for the purpose aforesaid, where ne-
cessary, or shall hereafter erect any dam or dams for the purposes
aforesaid, and which (in either case) in the opinion of three free-
holders, or a majority of them (to be appointed and proceed in
manner hereinafter mentioned, respecting surveys of dams across
rice grounds,) is or are not made and regulated in manner hereby
prescribed ; every person so offending, shall, on complaint of any
person or persons liable to be affected thereby, and on conviction
thereof, in any court of record, in the county where such offence
is committed, forfeit and pay the sum of one hundred pounds for
^very such offence, which may be sued for, and if recovered, be
disposed of in manner aforesaid. Ib.
Every person to be summoned as aforesaid, shall be resident in
the county where his attendance shall be required, and who, upon
being duly summoned and attending any survey as aforesaid, shall
be entitled to receive the sum of nine shillings and four pence per
day each, for every such attendance, to be paid by the person against
whom the verdict of the freeholders shall be given; and in case of
the non-attendance of any person a resident, and summoned as
aforesaid, (unless prevented by sickness or some reasonable excuse
to be made upon oath, to the satisfaction of such magistrate,) then
and in such case, every such person so neglecting to attend when
summoned as aforesaid, shall forfeit and pay the sum of ten pounds
per day^ for every such neglect or refusal. Ib.
Summons to three Freeholders.
Georgia, *» Whereas information hath been this day made
Clarke County, / before me, James Goodman, one of the justices
assigned to keep the peace for the county of Clarke, upon the oath
of Thomas Badman^oi Jackson, planter, that Adam Fearnought,
of the county of Clarke, having kept water during the winter upon
grounds on which rice is to be planted the present spring, has ne-
glected to open the dams (which kept up the water) in a sufficient
manner for the letting off the same, to the damages of the said
Thomas Badman. These are therefore to command you to sum-
mon Philip Goodman, Philip Lookout, and Charles Makeready, dis-
DAMS.
Ill
interested persons of the neighbourhood, and residents; to be and
appear at Watkinsville, in the county aforesaid, on the twenty-frst
day of January, instant, at nine o'clock in the morning, to view
the obstructions complained of, and to determine the matter in
dispute between the said Thomas Badman and Adam Fearnought,
and to return the same to me, under their hands, and upon their
oaths. Hereof fail not at your peril. Given under my hard and
seal, at Watkinsville, in the county aforesaid, this twentieth day of
November, in the year .
James Goodman, J. P.
Notice to the person complained of.
Mr. Adam Feat nought,
Sir,
Information having been given me, on oath, by Thomas Badman,
that you have neglected to open your dam on or before the tenth
day of March, instant, agreeable to the act of assembly in that case
made and provided; and the said Thomas Badman having applied
for a warrant of survey on such dam or obstructions: these are
therefore to notify to you that Philip Goodman, Philip Lookout and
Charles Makeready are summoned to view the said obstructions,
on the ninth day of January, at nine o'clock in the morning.—
Given under my hand, this ffteenth day of November, in the
year .
James Goodman, J. P.
The return of the Freeholders,
We Philip Goodman, Philip Lookout and Charles Maker eady ^
freeholders of Putnam county, by virtue of a warrant under the
hand of James Goodman, one of the justices assigned to keep the
peace in and for the county aforesaid, dated the twentieth day of
November, in the year , went as directed by the said warrant,
to (h^re mention the place) in the said county, and there (first be-
ing duly sworn) having viewed the said dam or obstructions, be-
longing to the said Adam Fearnought, and which is now complain-
ed of by Thomas Badman; we are of opinion that such dam or
obstructions prevent Thomas Badman from planting his crop of
rice in proper time, and thereupon have caused the said dam to be,
112
DAMS.
immediately cut and opened. Given under our hands, this thtr*
Uenth day of February, in the year .
Philip Goodman.
Philip Lookout.
Charles Makeready.
Form of an Execution to levy the cost of suit.
Georgia, |Ss
Clarke County, J
By fames Goodman, one of the justices assigned to keep the
peace in the county aforesaid.
To any lawful Constable.
These are to charge and command you, that of the goods * and
chattels of Adam Fearnought, of the county aforesaid, planter, you
levy, or cause to be levied, the sum of thirty dollars, lawful money
of this state, for his cost, for a warrant of survey obtained by
Thomas Badman, on the twentieth day of fanuary last past, for
the purpose of viewing the dam, of him the said Adam Fearnought,
which he, the said Adam Fearnought had neglected to open agreea-
ble to the directions of the act of assembly in that case made and
provided, as appears by the return of Philip Goodman, Philip Look-
out and Charles Makeready, freeholders, appointed for that pur-
pose. Given under my hand and seal, this thirteenth day of fan-
uary, in the year .
fames Goodman, J. P. (Z. *S\)
II. Dams in Rivers, Creeks, £s?c.
If any person shall unlawfully and maliciously break down, open,
cut through, injure or destroy any bridge, river or meadow bank,
rice dam, mill dam, or other dam or banks ; every such person, so
offending, shall on conviction, be sentenced to pay a fine, or be im-
prisoned, at the discretion of the court. P. C. p. 132.
DUELLING.
113
Depositions—See Interrogatories.
Disorderly Houses—See Vice and Immorality.
DUELLING.
The penal code of 1817, is amended by an act of 1818, as re-
lates to the oath to be taken by all officers respecting duelling,
which is now as follows, viz: I, A. B. do solemnly swear in the
presence of Almighty God, that I have not, since the first day of
January, 1819, been engaged in a duel either directly or indirect-
ly, either as principal or second, or in any other character whatso-
ever, in this state.
If any person in this state, shall deliberately challenge by word
or writing, the person of another, to fight at sword, pistol, or other
deadly weapon, or if any person so challenged, shall accept the
said challenge, in either case, such person so giving or sending, or
receiving any such challenge, and being convicted thereof, shall be
sentenced to pay a fine not exceeding five hundred dollars, and im-
prisoned in the common jail of the county, or on the recommenda-
tion of the jury, undergo an imprisonment in the penitentiary at
hard labour, or labour, for any time not less than twelve months,
nor longer than two yekrs.
If any person shall, willingly and knowingly, carry and deliver
any written challenge, or verbally deliver any message purporting
to be a challenge, or shall consent to be a second in any such in-
tended duel, every such person offending and being convicted
thereof, shall be sentenced to pay a fine not exceeding five hun-
dred dollars, and be imprisoned in the common jail of the county,
at the discretion of the court; or if the jury should recommend it,
he may be imprisoned in the penitentiary at hard labour, or labour,
for any time not less than twelve months, nor longer than two
vears
P
114
ESCAPE.
It shall be sufficient to form an indictment, generally, against
either of the principals for challenging another to fight at deadly
weapons, and notwithstanding it may appear on the trial, that the
defendant only accepted the challenge, it shall be sufficient to con-
vict and render him liable to the penalties aforesaid, and in like
manner, an indictment against the second may be framed, gener-
ally, for carrying and delivering a challenge, and the proof of the
mere act of fighting, and the defendant being present thereat, shall
be sufficient to convict the defendant, upon an indictment so fra-
med; and if the duel shall take place within this state, the mere
act of fighting shall be full and complete evidence of the charges
respectively, of giving or receiving, or of carrying and delivering
a challenge, without other proof thereof. Acts 1818, p. 193.
ESCAPE.
This is to be understood of escapes in criminal cases, and not
in civil cases, as for debt, or the like, for which see title Gaol, 6th
section.
An escape is, where one that is arrested gaineth his liberty be-
fore he is delivered by course of law. Terms de Ley.
Escapes are of three kinds: 1. By a person who hath the of-
fender in his custody ; this is properly called an escape. 2. Cau-
sed by a stranger j this is commonly called a rescue. 3. By the
party himself, either without force, which is simply an escape, or
with force, which is prison-breaking. Rescues and prison-break-
ing are treated of under their respective titles ; and this title treats
only of escapes properly so called ; concerning which we will ob-
serve the following order.
I. Of an Escape by the party himself.
II. Escape suffered by a private person.
III. Escape suffered by an officer.
IV. What is a voluntary, and what a negligent Escape.
V. Concerning the retaking of a person escaped.
VI. Punishment of an Escape.
VII. Precedents.
ESCAPE.
115
I. Of Escape by the party himself.
As all persons are bound to submit themselves to the judg-
ment of the law, and to be ready to be justified by it; whoever in
any case refuses to undergo that imprisonment which the law
thinks fit to put upon him, and frees himself from it by artifice,
before such time as he is delivered by due course of law, is guilty
of a high contempt, punishable with fine and imprisonment. 2
Haw. 122.
But escape committed by the party himself, belongs more pro-
perly to the title Prison-breaking.
II. Escape suffered by a private person.
It seems to be a good general rulej that wherever any person
hath another lawfully in his custody, whether upon an arrest made
by himself or another, he is guilty of an escape if he suffer him to
go at large before he hath discharged himself of him, by delivering
him over to some other, who by law ought to have the custody of
him. 2 Haw. 138.
And the law is generally the same, in relation to escapes suf-
fered by private persons, as by officers. 2 Haw. 138.
III. Escape suffered by an officer.
In order to make it an escape, there must be an actual arrest;
and therefore, if an officer having a warrant to arrest a man, see
him shut up in a house, and challenge him as his prisoner, but
never actually have him in his custody, and the party get free, the
officer cannot be charged with an escape. 2 Haw. 129.
And as there must be an actual arrest, such arrest must be also
justifiable ; for if it be either for a supposed crime where no such
crime was committed, and the party neither indicted nor appealed,
or for such a slight suspicion of an actual crime, and by such an
irregular mittimus as will neither justify the arrest nor imprison-
ment, the officer is not guilty of an escape, by suffering the priso-
ner to go at large. 2 Haw. 129.
And as the imprisonment must be justifiable, so it must be also
for a criminal offence.-2 Haw. 129.
Also, if a prisoner be acquitted, and detained only for his fees,
it will not be criminal to suffer him to escape, though the judg-
116
ESCAPE.
ment were, that he be discharged paying his fees, so that till they
be paid, the first imprisonment continued lawful as before ; for
inasmuch as he is detained not as a criminal, but only as a debtor,
his escape cannot be more criminal than that of any other debtor:
y t if a person convicted of a crime be condemned to imprison-
ment for a certain time, and also till he pay his fees, and he es*.
cap after such time is elapsed without paying them, perhaps
sutft escape may be criminal, for that it was part of the punish-
ment that the imprisonment be continued till the fees should be
paid ; but it seems that this is to be intended where the fees are
due to others as well as to the gaoler, for otherwise the gaoler
will be iba only sufferer by the escape, and it will be hard to
punish him for suffering an injury to himself only in the non-pay-
ment of a debt in his power to release. 2 Haw. 129, 130.
Also, it is an escape in some cases, to suffer a prisoner to have
greater liberty than by the law he ought to have ; as to admit a
ptrson to bail who by law ought not to be bailed, but to be kept
in close custody. 2 Haw. 130.
So if a gaoler or other officer, shall licence his prisoner to go
abroad for a time and to come again ; this is an escape, because
the prisoner is found out of the bounds of his prison, though the
prisoner return again, according as he shall be prescribed. Dalt.
c. 159.
If the gaoler so closely pursues the prisoner who flies from
him, that he retakes him without losing sight of him,-the law
looks on the prisoner so far in his power all the time as not to ad-
judge such a flight to amount at all to an escape ; but if the gaol-
er once lose sight of the prisoner, and afterwards retake him, he
seems in strictness to be guilty of an escape. And if he kill him
in the pursuit, he is in like manner guilty of an escape, though he
never lost sight of him and could not otherwise take him ; not
only because the state loses the benefit it might have had by the
forfeiture on his attainder, but also, because the public justice is
not so well satisfied by the killing him in such an extra-judicial
manner. 2 Haw. 130.
IV. What is a voluntary and what a negligent escape.
Wherever an officer, who hath the custody of a prisoner charg-
ed with and gnilty of a capital offence, doth knowingly give him
ESCAPE.
in
his liberty with an intent to save him from his trial or execution,
this is a voluntary escape. 2 Haw. 130.
A negligent escape is, when the party arrested or imprisoned
doth escape against the will of him that arrested or imprisoned
him, and is not freshly pursued and taken again, before he hath
lost the sight of him. Dalt. c. 159.
If the constable or other officer, shall voluntarily suffer a thief,
being in his custody, to go into the water to drown himself, this
escape is felony in the constable, and the drowning is felony in the
thief; otherwise, if the thief shall suddenly, without the assent of
the constable, kill, hang, or drown himself, this is but a negligent
escape in the constable. Dalt, c. 159.
V. Concerning the retaking of a person escaped.
If an officer hath arrested a man by virtue of a warrant, and
then taketh his promise that he will come again, and so letteth him
go, the officer cannot after arrest or take him again by force of his
former warrant, for that this was by the consent of the officer: but
if he return and put himself again under the custody of the offi-
eer, it seems that it may be probably argued, that the officer may
lawfully detain him, and bring him before the justice in pursuance
of the warrant. Dalt. c. 169. 1 Haw. 81.
But if the party arrested had escaped of his own wrong, with-
out the consent of the officer, now upon fresh suit he may take
him again and again, so often as he estapeth, although he were
out of view, or that he shall fly into another town or county, and
bring him before the justice upon whose warrant he was first ar-
rested. Dalt. c. 169.
And it is said generally, in some books, that an officer who
hath negligently suffered a prisoner to escape, may retake him
wherever he finds him, without mentioning any fresh pursuit;
and, indeed, since the liberty gained by the prisoner is wholly
owing to his own wrong, there seems to be no reason he should
take any manner of advantage from it. 2 Haw. 131, 132.
And wherever a person is lawfully arrested for any cause, and
afterwards escapes and shelters him in a house, the doors may be
broken open to take him on refusal of admittance. 2 Haw. 87.
It is perhaps the better opinion, that wherever a prisoner by the
negligence of his keeper, gets so far out of his power, that the
keeper loses sight of him, the keeper is punishable for the escape,
118
ESCAPE.
notwithstanding he retook him immediately after. And it is deal,
that he cannot excuse himself from an escape, by killing a prisoner
in the pursuit, though he could not possibly retake him ; but must
in such case be content to submit to such punishment as his negli-
gence shall appear to deserve. 2 Haw. 132.
VI. Punishment of an Escape.
If any person shall rescue another in legal custody on criminal
process, such person shall receive the same punishment as the per-
son rescued would, on conviction, be sentenced to receive ; and if
the person so rescued shall not have been tried, or shall have been
acquitted, it shall be lawful to charge the person rescuing, as for a
misdemeanor, and, upon conviction, he shall be imprisoned in the
common jail of the county, for any period of time not exceeding
onp year, as the court shall or may order and direct.
If any person or persons shall rescue another in legal custody
on civil process, such person or persons shall be indicted, and, on
conviction, shall be sentenced to pay a fine equal to the amount of
the debt or demand for which such process was issued j and the
said person or persons shall be imprisoned in the common jail of
the county at the discretion of the court.
If any person shall aid or assist a prisoner, lawfully committed
or detained in any jail for any offence against this state, or who
shall be lawfully confined by any civil process, to make his or her
escape from jail, although no escape be actually made ; or if any
person shall convey or cause to be delivered to such prisoner any
disguise, instrument or arms, proper to facilitate the escape of
such prisoner; any such person, although no escape or attempt to
escape be actually made, shall, on conviction, be punished by im-
prisonment at hard labour in the penitentiary, for any time not
exceeding two years.
If any person shall aid or assist any prisoner to attempt to es-
cape from the custody of any sheriff, constable, officer or other
person who shall have the lawful charge of such prisoner, every
person so offending, shall, on conviction, undergo an imprison-
ment in the penitentiary for any time not exceeding five years.
If any person confined in the penitentiary shall escape therefrom
and be thereafter retaken, such person shall be indicted for an es-
cape, and being thereof convicted, shall be imprisoned for a term
not exceeding three times the term of his original imprisonment:
ESCAPE.
119
any person who shall aid or assist a prisoner confined in the peni-
tentiary to escape, or in an attempt to escape therefrom, being
thereof convicted, shall be imprisoned at hard labour in the peni-
tentiary, for a term not exceeding double the time of the imprison-
ment, which the person so escaping or attempting to escape, was
sentenced to undergo.
If any sheriff, coroner, keeper of a jail, keeper or other officer
or person employed in the penitentiary, having any offender
guilty or accused of or confined for any crime in his custody, shall
voluntarily permit or suffer such offender to escape and go at
large, every such sheriff, coroner, keeper of a jail, keeper, officer
or other person employed in the penitentiary, constable or other
officer or person, so offending, shall, on conviction, undergo an
imprisonment in the penitentiary at hard labour, or in solitude, for
any time not less than five years, nor exceeding seven j and shall
moreover, if a public officer, be dismissed from office.
If any sheriff, coroner, keeper of a jail or other officer, shall wil-
fully refuse to receive any offender charged with or guilty of an
indictable offence, or committed as a witness on the part of this
state, or having such offender or witness in his custody, shall
voluntarily permit, or suffer him or her to escape and go at large,
then every'such sheriff, coroner, keeper of a jail, constable or other
officer or person so offending, shall, on conviction, undergo an im-
prisonment in the penitentiary for a period of time, not exceeding
seven years. P. C. p. 119, 120.
VII. Precedents. See Appendix—title Escape.
ESTRAYS.
It shall and may be lawful for any person upon his own free-
hold, or other person having charge of such freehold in the ab-
sence 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 maybe found straying away from their owners j and every
person taking up estrays as above, shall within ten days, in case such
liiO
LSTRAYS.
estrays have been broke to service, take or drive it or them befoie
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, hav-
ing been first duly sworn thereto, well and truly to appraise or as-
certain the value of such estray, which appraisement or valuation
and description 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 es>-
tray, 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 any wise been
altered ; and that the owner to him or them is unknown.
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
freeholder 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 justices courts in said district prior
to tolling, and shall immediately thereafter go with such freehold-
er before a justice of the peace of said county, and make oath be-
fore him, that the same was taken up at his plantation or place of
residence in the said county, and the marks or brands of such es-
tray 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 free-
holder, upon oath, a particular 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, is-
sue his warrant for the appraisement of such estrays ; which de-
scription 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 hereafter directed.
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.
It shall be the duty of the clerk of the inferior court in such
county in this state, and he is hereby required to receive and enter
SSTRAYS.
121
In a book by him to be provided and kept for tbat purpose, all such
certificates of descriptions of appraisement, as to him shall be trans-
mitted from the respective justices in the county 5 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 court house of his
county, for two terms successively after the Same shall be trans-
mitted to him.
It shall be the duty of the said clerks of the inferior courts in
their respective counties, to cause an inclosure to be made at the
court house, to be paid for, out of the monies Arising from the
sale of estrays, for the purpose of impounding estrayed horses,
mares, colts, fillies^ asses and mtiles, and that all estrays aforesaid,
taken up as aforesaid,, shall by the taker up be brought to the
said inclosure and impounded from ten o'clock in the1 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 an estray as aforesaid,)
shall for every neglect to impound as afurefaid, be subject to a
fine of five dollars, to be collected by execution imdtr 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 shewn the said court at the next term thereof.
Clay; Dig. p. 6, 7;
It shall be the duty of the fclerks 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^
gelding, filly, ass, or mule may have been posted, in conformity with
the estray law now in force in this state, a description of such es-
trayed horse, mare^ 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, Au-
gusta Chronicle, or Savannah Republican, and the proprietors of
said papers shall receive as compensation for the publication of
each of such estrays, the sum of one dollar and fifty cents.
The said clerks respectively, shall be authorised to pay out of
the monies arising from the sales of estrays, the expence incurred
for such advertisement of advertisements, unless it should so hap^
pen, 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
Q
122
ESTRAYS.
Case, it shall be the duty of such clerk to demand and receh e of
the owner or owners of such estray or estrays, the full amount of
the expences incurred for such advertisement or advertisements,
previous to the delivery of such estray or estrays.
The clerks of the inferior courts aforesaid, shall be entitled to
the sum of fifty cents, for transmitting the description of said es-
trays, from the owners, if proven away, or from the proceeds of the
sale of such estray, if sold.
In all cases where expences 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 expence out of
the money arising from the sale of such estrays; and it shall be
the duty of all such clerks jto keep a fair and regular book of en-
try of all such expenditures, to exhibit to the inferior courts of
their counties respectively, upon application. Acts 1816, p. 7.
It shall be the duty of the taker up, and he is hereby required to
bring to the court house in the- county wherein he resides, and de-
liver to the clerk of the inferior court of said county, every estray-
ed 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 estray 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 hereiliaf-
ter 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 collected by execution^ under the hand
and seal of the presiding justice of the inferior court; unless suf-
ficient cause to the contrary be shewn 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. Clay.
Dig. p. 7, 8.
No neat cattle taken up as estrays, shall be sold under twelve
months from the time of being tolled; and it shall be the duty of
the rlerk3 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 court house, all such
estrays, on the first day of every succeeding term of the superior
ESTRAYS.
123
and inferior courts, which may happen in the county, within the
said term of twelve months. Clay. Dig. p. 123.
In case any person shall take up as aforesaid, any neat cattle,
sheep, goats, or hogs, and no person or persons shall appear to
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 where he resides, shall proceed to sell the said es-
trays, 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 monies in their
hands, that have arisen from the sales of estrays as aforesaid, de-
ducting five per centum for commissions, and such other charges,
as are allowed by law, and all monies so paid shall be subject to
the order of the inferior court, for county purposes. Clay. Dig.
p'8'
The justice, for his services, exclusive of commissions, shall
receive the sum of twenty-five cents. Clay. Dig. p. 123.
The justice, for his services as above, shall receive from the ta-
ker up, at the time such estray or estrays shall be brought before
him, or a description or valuation thereof presented to him as
above, the sum of seventy-five cents for each horse, mare, colt, fil-
ly, ass, or mule, and the sum of six and one fourth cents for each
head of neat cattle, sheep^ goats, or hogs.
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 employers, (as the case may be,) in that case the court shall,
after deducting the fees and charges hereafter described, pay the
balance of the money arising from such sales, to the claimant of
such property.
The taker up of such estrays, shall, as a compensation for main-
taming 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 justices of the district where
such estray may be tolled, or any two justices of the county. Pro-
vided nevertheless, That in case the putting such estray to labour,
he shall be bound to produce said estray to the owner, if claimed,
124
ESTRAVS.
or to the clerk, If sold, (casualties excepted,) in as good condition
as when appraised.
Upon the delivery of any such estray to the legal owner, or in
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 addi-
tion to the sums above mentioned, for the keeping and mainten-
?uace of the same.
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 he 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 money, as a compensation for selling, collecting and pay-
ing; and twenty-five cents for each estray advertised by him at
the court hoqse.
It shall be the duty of the clerk of said court, to render to the
paid inferior pourt, at every term thereof, a true statement of all
monies arising; from the sales of estrays as aforesaid, accompanied
with the proper vouchers, and exhibit a correct statement as afore-
said to the grand jury of the county, at every fall term of the
superior court, and oftener if required.
Any person taking up any estray as aforesaid, and failing or
neglecting to comply >vith 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 ad-
vertised as aforesaid, to be recovered by suit or action at law, the
informer to be the plaintiff in the action; one half of the sum so
received to the use of the informer, the other half to the use of
the county.
If any justice or clerk shall refuse or neglect to perform the
duties required by this act, each justice or clerk neglecting or re-
fusing, shall, for every such neglect or refusal, forfeit the sum of
twenty dollars, 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 j and shall moreover be Ijable to
EVIDENCE.
125,
an action of damages to" the party injured, and upon conviction,
pay double costs.
It shall be the duty of the clerks of the superior courts, and
they are hereby required at the first term of the inferior court, in
the several counties, to be holden after the passing of this act, to
pay over to the clerks of the inferior courts in the respective coun-
ties, all monies which may be in their hands, which have arisen
from the sale of estrays, accompanied by the books and document?
thereto appertaining. Clay. Dig. p. 8, 9, 10.
EVIDENCE, IN GENERAL.
The party who makes an affirmative allegation which is denied
by his adversary, is in general required to prove it. For the
negative 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 circumstantial, 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 pre*
vails ; for the law presumes that every man does his duty to so-
ciety, until the contrary is proved. Bull. N. P. 298.
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 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 ex-
ecutor, administrator, 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 hand writing of such
subscribing witness cannot be proved, then proof of the hand-
writing of the obligor may be admitted*.
* It is to be observed, that in deeds for land in this state, if they have tw®
"witnesses, and one of them is a justice of the peace, such deeds may be recorded,
126
EVIDENCE.
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 evi-
dence can be admitted, are such as are in their very nature inca-
pable of positive and direct proof. Of this kind are all those which
can only depend on reputation. The excluding of hearsay evi-
dence in questions of pedigree, would generally prevent all testi-
mony whatsoever.
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. R. 707. Peake's L. E. 172.
What a party admits, or which another asserts in his presence
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.
But a distinction must be made between an admission and an
offer of compromise, after a dispute has arisen. An offer to pay
h sum of money in order to get rid of an action is not received as
evidence of a debt: but admissions of particular articles of an ac-
count, are good evidence. Bull. N. P. 236.
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 maybe
admitted. Leach. Cro. L. 299.
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
lo presume the particular fact which is the subject of controversy.
Long and undisputed possession of any right or property, affords
a presumption that it had a legal foundation; and rather than dis-
turb 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 sufficieut 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.
and when recorded, they may then be given in evidence in court, without fur-
ther proof; so likewise a deed may be proven by a subscribing witness, which
will entitle it to record, and then also it becomes good evidence.
EVIDENCE.
127
Presumptions are of three sorts ; violent, probable, and light and
timerary. Violent presumption often amounts to full proof j 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.
WRITTEN EVIDENCE.
This class of evidence, where the subject is treated of at large,
and embodied into a system, is usually divided and sub-divided
into appropriate and technical parts, for the sake of order and per-
spicuity. But to follow that course on this occasion, would lead
far beyond the necessary limits of the present work. Therefore,
nothing more will be here attempted, than a general outline, and a
few familiar rules.
Acts of the assembly and judgments of our courts are denominated
Records, and are so respected by the law, that no evidence what-
ever can be received in contradiction of them; but being the pre-
cedents 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.
Courts are bound to take notice of general acts of assembly,
(such as relate to the public in general,) without being pointed
out; not so private acts, which only concern private persons.
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.
But the representative of a party, such as his executor, admin-
istrator, heir or assigns, is not considered as a third person within
this rule ; for such a representative is permitted to give the ver-
diet in evidence.
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
128
EVIDENCE.
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 witnesses on such interrogatories as the par-
ties may exhibit; and such examination shall be read at the trial,
on motion of either party. M. & C. Dig. p. 299.
When any witness resides out of the county, whose evidence
may he material for either party in any cause pending in a justice's
court, the party wishing such testimony may obtain a commission
from the justice issuing the summons, first giving the adverse par-
ty, his agent or attorney, five days notice^ accompanied with a copy
of the interrogatories intended to be exhibited ; which commission
Shall be directed to any two or more freeholders, one of whom shall
be a justice of the peace, to examine on oath all and every such
witness or witnesses ; and such examination, when so taken, shall
be sealed up by the commissioners, and directed to the magistrate
by whom it was issued ; and such magistrate on returning the same
shall swear, that it has undergone no alteration from the time of
his receiving it of the commissioners ; and the commission and in-
terrogatories so issued, executed and returned, shall be read on
the trial at the instance of either party. Act 1811, p. 11.
But a deposition cannot be given in evidence against any per-
son who was not party to the suit; because he had not liberty to
cross-examine the witness. Yet, this rule admits of some excep-
tions; as particularly, in all cases where hearsay and reputation
are evidence. So a deposition taken in a cause between other par-
ties, will be admitted to be read, to contradict what the same wit-
ness swears at a trial.
In the case of private deeds, or other instruments, the produc-t
tion 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 dili-
gence to procure it, then a regular copy may be received in evi-
dence.
No person is permitted to deny any deed, bond, bill, single or
penal, note, draft, receipt, or order, but upon oath; hence the proof
of such instruments are not required, unless the party executing
them be dead. Indorsements by our law are not required to be
proved*
EVIDENCE.
129
The courts shall have power, on the trial of causes cognizable
before them respectively, on ten days notice, and proof thereof be-
ing previously given to the opposite party, or his, her or their at-
torney, 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 non-suit; and if the defendant shall
shall fail or refuse to comply therewith, the court, on motion, shall
give judgment against such defendant, as in case of judgment by
default. M. & C. Dig. 294.
A note of hand may be proved, by prbving the hand writing of
the maker; but if the subscribing witness is to be had, he ought to
be produced.
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.
The merchant or trader, in order to make his books evidence
for him, must prove the actual delivery of the goods in the ac-
count, 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 hand writing. It will not be sufficient to prove, that the
clerk has gone to another state or country.
It has been ruled in the superior courts, that where a book ac-
count for goods sold, is in the hand writing 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 ; and also
proof by one or two respectable customers, that the party has been
in the habit of keeping fair and just accounts j it shall be good evi-
dence of such account.
Hand writing cannot be proved by comparison of hands.
Peake's, L. E. 69.
In all cases of indictment for a libel, the person prosecuted, shall
be allowed to give the truth in evidence, P. C. p. 125.
R
230
EVIDENCE.
PAROL EVIDENCE.
All persons who are examined as witnesses, must be fully pos-
sessed 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.
A person deaf and dumb, if of sense to have intelligence con-
veyed to him, may be witness, and give his evidence by signs,
through tl>e medium of an interpreter.
The oath to be administered to a witness is general, to speak
the truth, the wlnple truth, and nothing but the truth. One wit-
ness is generally sufficient; but two are necessary against a person
accused of treason, misprision of treason, or perjury.
If a witness is convicted of perjury, or of forgery or felony,
and not pardoned, nor burnt in the hand ; or if he hath by judg-
ment lost his ears, or stood in the pillory, or hath been stigma-
tised, 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 upon
the verdict or confession ; for until such judgment is entered, the
witness is not deprived of his legal privilege. But by the mo-
dern decisions on this subject ;(though ^jjian cannot be asked any
question tending to convict him of a crfffie,|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 wit-
nesses, as to his general character, but not as to any particular
crime whereof he was never convicted.
The competency of a witness is a question of law, to be decided
by the court or justice, whether the evidence shall be received;
EVIDENCE.
lite Credibility of a witness is a question of fact, which should al-
ways be considered in weighing testimony.
A person interested in the event of the cause, or a wife or hus-
band 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
witnesses; as where the owner prosecutes an indictment for stolen
goods, he is concerned in interest, for he will be entitled to resti-
tution ; 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 assem-
bly the apprehender be entitled to a reward upon conviction.—Tri-
als of the Rioters in 1780. Peake's L. E. 101. note.
A person convicted of felony, who has his clergy, and is burnt
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.
A wife maybe a witness against the husband for actual violences
committed upon her own person; as if a man hold his wife till
another 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 de-
mands sureties of the peace against each other.
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.
In the case of murder ; what the deceased declared after the
wound given, is good evidence, if such declaration were made af-
ter all expectation of recovery were past; and when he was at
the point of death. But if reduced to writing, that must be pro-
duced.
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 pro-
mise, and afterwards the accomplice make a full and fair confes-
sion of the whole truth, and give evidence for the state, and that
is made use of to convict the other offenders, and disclose all trea-
sons and felonies which he knows of, the court will in such cases
stop the prosecution against him : but if he conceals or misrepre-
sents any thing, the court will not stop the prosecution.
132
EXECUTION.
No man shall be compelled to give evidence against himself
Hence it is held that if a criminal be sworn to his examination
taken before a justice, it shall pot be read against him.
Any one who is a bare trustee, and no way concerned in interest,
is a good witness, and may prove the execution of a deed to him-
self.
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 j
for otherwise, no unwilling witness could be made use of.
An attorney ought not to be admitted against his client, as to
the knowledge of any fact acquired after that connection.
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
a demand, or cause of action against the witness, will release him,
or tender a release, he thereby becomes a good witness.
The whole of a confession must be taken together. As if the
defendant said he owed the debt, but had paid it j the whole
meaning must be taken together. See Interrogatories and Wit-
nesses.
EXECUTION.
Where a person attainted, hath been at large after his attain-
der, and afterwards is brought into court and demanded why exe-
cution should not be awarded against him ; if he deny that he is
the same person, it shall immediately be tried by a jury returned
for that purpose. 2 Haw. 463.
The court may command execution to be done, without any
writ. 2 Haw. 463.
It is clear that if a man condemned to be hanged, come to life
after he be hanged, he ought to be hanged again, for the judgment
was not executed till he was dead. 2 Haw. 463.
In fixed and stated judgments, the law makes no distinction be-
tween a common or ordinary case, and one attended with extraor-
dinary and aggravating circumstances; the judges therefore can-
not direct that a man should be hanged and then burnt, or gibbet-
ted, unless the law declared it to be part of the punishment of
persons who offended in such a particular manner.
EXECUTORS AND ADMINISTRATORS. 133
The sentence of death shall be executed, by publicly hanging
the offender by the neck, until he or she is dead. P. C. p. 139.
The governor shall have power to grant reprieves for offences
against the state, except in cases of impeachment, and to grant
pardons, or to remit any part of a sentence, in all cases, after con-
viction, except for treason or murder ; in which cases he may res-
pite the execution, and make report thereof to the next general
Assembly, by whom a pardon may be granted. M. & C. Dig. p.
26. Con. 7 sec. 2 art. For forms of Execution, see Appendix.
EXECUTORS AND ADMINISTRATORS.
An executor is he to whom another man commits, by will, the
execution of his last will and testament.
Administrators have their origin in the statute of 31 Edw. III.
c. 2. and are those to whom letters of administration have been
granted by the proper authority.
An administrator's power may be either general, of all the per-
sonal property, rights and credits of the intestate ; or he may be
an administrator with the will annexed, as where there is no exec-
utor named in the will, or where the executor refuses to qualify ;
in which case his powers are limited by the will.
Or he may be administrator of the goods not administered, as
where the executor or first administrator die, and the residue of
the goods are committed to his care, he is then called administra-
tor de bonis non.
Or he may be an administrator during the non-age of an infant,
executor and the like.
If a stranger take upon him to act as executor without any just
authority, (as by intermeddling with the goods of the deceased,
and many other transactions,) he is called in law an Executor of
his own wrong, and is liable to all the trouble of an executorship
without any of the profits or advantages.
Having explained some of the legal terms which appear in our
state laws under the foregoing head, and as those laws embrace
several articles not properly referable to that division, it is thought
advisable to consider the subject under the following tiths :
134 EXECUTORS AND ADMINISTRATORS.
I. Courts of Ordinary.
II. Dower.
III. Estates.
IV. Executors and Administrators.
V. Guardians.
VI. Orphans.
VII. Poor.
VIII. Wills and Testaments.
I. Courts of Ordinary.
1. The power 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 therein 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 cita-
tions and grant temporary letters, in time of vacation, to hold un-
til the next meeting of the said court; and such clerk or other per-
son may grant marriage licenses. 3d art. 6th sec. Con.
2. The inferior courts in each county shall have jurisdiction and
authority to hear and determine all causes, matters, suits and con-
troversies testamentary, which shall be brought before them,
touching the propf of wills ; and shall examine and take the proof
of wills, grant probate thereof, and shall hear and determine the
right of administration of estates of persons dying intestate, and
to do all other things touching the granting letters testamentary
and letters of administration, according to law and right, and shall
appoint its own clerk, who shall be commissioned by the gover-
nor, and before he enters on the duties of his office, shall take an
oath, well and truly to perform the duties required of him, as
clerk of the court of ordinary, to be administered by one of the
judges thereof. M. & C. Dig. p. 219.
3. The inferior court, when sitting for ordinary purposes, shall
be known only as the inferior court sitting for that purpose, and
that their clerk shall be known as the clerk of the court of ordi-
nary only ; and the said inferior court when sitting for ordinary
purposes, shall have the original jurisdiction of all testate and in-
EXECUTORS AND ADMINISTRATORS. m
testate estates, appointing administrators and guardians, to qualify
executors, administrators and guardians, and to bind out orphans,
and all such other matters and things as appertain or relate to es-
tates of deceased persons, whether testate or intestate. Clay. Dig.
p. 668.
4. All applications for letters of administration shall be made
to the clerk of such court of ordinary, who shall give notice there-
•of in one of the public gazettes of this state, and by advertisement
at the court-house of such county at least thirty days before the
sitting of the said court of ordinary. And such clerk may, at his
discretion, grant letters to collect and take care of the effects of
the deceased, until the meeting of such court. And the said court
shall also grant such letters in all cases where there shall be an
appeal from the determination thereof to the superior court. And
in either case, the person obtaining such temporary letters of ad-
ministration shall give bond and security for the faithful perform-
ance of the trust reposed in such person or persons. M. & C.Dig.
p. 220.
5. No letters testamentary or of administration, shall be granted
to any person or persons, who is or are not a citizen or citizens of
the United States, residing in the state of Georgia. Clay. Dig. p.
269.
6. The clerks of the courts of ordinary in the several counties
shall grant marriage licences, directed to any judge, justice of the
inferior court, justice of the peace or minister of the gospel, to
join persons of lawful age, and authorised by the levitical degrees
to be joined together in matrimony. And where such persons in-
tending 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 jr»f the inferior court, justice of the peace or minis-
ter of the gospel, being duly certified thereof, to marry the per-
sons whose banns have been so published ; and any person mar-
rying any couple without such license or publication of such banns,
shall forfeit five 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. M. & C. Dig. p. 220.
7. It shall be the duty of all ministers of the gospel, judges,
justices of the inferior court or justices of the peace, who shall
hereafter join together any person in the bonds of matrimony, to
make a return on the marriage license of the actual intermarriage
136 EXECUTORS AND ADMINISTRATORS.
of the parties, and the day in which the same was solemnized, to
the clerk of the court of ordinary, whose duty it shall be to enter
the same in si book to be kept by him for that puirpose, for which
he shall be entitled to ask and receive the sum of twenty-five
cents, which shall be paid when such license shall be granted j
which register, or a certified copy thereof, shall be admitted as
evidence of stich marriage, in any court where the solemnization
of such marriage shall be called in question. Clay. Dig. p. 2G1.
8. It shall be the duty of the court of ordihary, when any alien,
resident or non-resident shall depart this life intestate and w ithout
heirs, in this state or the United States, to fcause the estate and ef-
fects of such alien, without delay, to be safely collected, and a just
and true inventory and appraisement thereof td be made, and after
giving twenty days notice, by advertisement in one of the public
gazettes of this state, and at two or more phblic places in the
county where such alien shall die, shall cause the said estate to be
sold at public auction, and the prdceeds of such sale to be paid into
court, to be applied and disposed of in manner hereinafter men-
tioned. Clay. Dig. p. 257".
After such sale as abovementioned, shall have taken place, and
the proceeds paid into court, it shall be the duty of the said court
of ordinary, and the said court is hereby required to cause public
notice to be given, by advertisement, for the creditors of such de-
ceased to come forward within twelve months after the publication
of such notice, and prove their debts to the satisfaction of the said
court j and after the expiration of the said- twelve months, the
said court shall proceed to examine and ascertain the total amount
due such creditors, and shall pay and satisfy each of the said
creditors, in whole or in part, as the estate of the deceased will ad-
mit, and the overplus, if any, after such pa) irvjj* as aforesaid,
shall be disposed of as is directed by the escheat law. Ib.
The several escheators of this state, who have or may hereafter
have or receive any monies arising from the sales of such estates
as aforesaid, shall, upon the requisition of the couit of ordinary
of the county, pay such monies into the said court w ithin twenty
days after he shall be required so to do by the said court j and in
default thereof shall forfeit and pay double the sum which such
escheator shall have received and have in his hands as aforesaid,
to be recovered by action of debt in any court having jurisdiction
thereof. Ib.
EXECUTORS AND ADMINISTRATORS. is?
9. In case either party in the said courts of ordinary shall or
may be dissatisfied with any decision thereof, then, and in all
such cases, such dissatisfied 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 proceedings 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, accord-
ing to law and right. And letters testamentary, or of administra-
tion, shall not be granted or issued until the decision of such ap-
peal by the said superior court; but the said court of ordinary
may, pending such appeal, grant temporary letters to collect the
estate of the deceased. Clay. Dig. p. 269.
10. The inferior court shall meet for ordinary purposes on the
first Monday in January next, and on the first Monday in every
other month thereafter : Provided, That when the business of the
court shall require it, the justices may by adjournment hold meet-
ings at any other time or at any other day than those before ap-
pointed for their meetings. Clay. Dig. p. 669.
11. The courts of ordinary, upon application made by any ad-
ministrator, administratrix, guardian or distributees of any estates,
shall appoint three or more freeholders of the county in which
such application shall be made, whose duty it shall be to divide
the said estate, subject to distribution into as many parts or shares
as there are distributees, and assign by lot or otherwise, as to
them shall seem proper, one of the said parts or shares to each
distributee, or his, her or their guardian or legal representative ;
the said distributee, or his or her or their guardian or legal repre*
sentative, first giving bond and approved security to the said ad-
ministrator to refund his or her proportionable part of any debt
which maybe afterwards established against the said estate, and the
costs attending the recovery of such debt: Provided alxuays, The
party so applying shall give to all the parties in interest within the
state, written notice thereof twenty days, and those without the
state, ninety days before the meeting of the court, at which the
said application is made: And provided also, that the person*so
making distribution shall be previously sworn to make the same
according to justice and equity, without favour or aftection, tfl>
S
138 EXECUTORS AND ADMINISTRATORS.
any of the parties, to the best of their skill and understanding.
Act. 1812, p. 86, 87.
12t Whenever securities for executors, administrators or guar-
dians, conceive themselves in danger of suffering thereby, and pe-
tition the court of ordinary for relief, the said court shall cause
the executor, administrator or guardian, to be sumrtioned 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. Clay. Dig. p.
260.
13. When it shall be made to appear to the satisfaction of the
court of ordinary, that any executor or executors of an 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 9uch executor or ex-
ecutors to give bond with approved security for the faithful execu-
tion 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 ad-
ministration with the will annexed, to such person as would fye
entitled thereto, if no such executor had been appointed. Clay.
Dig. p. 261.
14. The said court shall have power and authority upon com-
plaint made and cause shewn 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 re-
quiring such administrator or guardian to shew cause, if any they
have, at the next term, why such security should not be discharged
from his securityship, and such administrator or guardian com-
pelled to give new security, or their administration or guardian-
ship revoked, as to the said court shall seem expedient, and upon
the revocation of such administration or upon the revocation of
any letters testamentary as provided by law, and granting admin-
istration de bonis non, suits brought by or against the former ad-
ministrator 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 such administrator de bonis non a party at
any time after the granting of such letters de bonis non. Clay.
Dig. p. 670.
15. 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
EXECUTORS AND ADMINISTRATORS. 139
titles to any lands, tenements or hereditaments, and shall die with-
out 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 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 administrator of such intestate to make titles for the lands,
tenements or hereditaments expressed in the said bond, obliga-
tion or other agreement j 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 ex-
ecutors 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 administrators of such intestate, upon applica-
tion 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 pur-
chase money or the consideration for which the said contract was
entered into shall be fully paid or performed, with 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, any law to the contrary notwithstanding: Provided always
nevertheless, That 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 forbear 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.
It shall be the duty of such executor or executors, administra-
tor or administrators, in all cases where titles to lands are made in
virtue of this act, to make a fair statement thereof, describing the
boundaries and situation of the land, an.d return the same together
140 EXECUTORS AND ADMINISTRATORS.
with the bond, obligation or other agreement in writing, which may
have been taken up upon making such titles to the court of ordi-
nary, to be filed in the clerk's office of that court, subject to the in-
spection of all persons interested. M & C. Dig. p. 218,219.
16. Where any person or persons shall depart this life, after
having entered into any written agreement for the conveyance of
any real estate, the obligee shall also have departed this life, the
executotfs of the obligor shall in like manner make and execute a
conveyance or conveyances to the heirs of the obligee. Clay. Dig.
p. 261.
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 be-
fore 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. Ib.
17. All guardians, executors and administrators heretofore ap-
pointed, and which shall hereafter be appointed, shall at the next
inferior court after the expiration of nine months in the respective
counties after the passing of this act, exhibit an account on oath
of all the estate of such orphan or deceased person, which he or
they shall have received, to be entered by the clerk of the court
of ordinary, in a book to be kept for that purpose only; and when
such court shall know or be informed that any such guardian, ex-
ecutors or administrators shall waste or in any manner mismanage
the estate of such 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 guardian, execu-
tor or administrator, or his, her or their securities are likely to be-
come insolvent, such court may make such order for the better
managing and securing such estate, and educating and maintaining
such orphan, as they shall think fit.
It shall be the duty of all such guardians, executors and ad-
ministrators to render a full and correct account of the state and
condition of such estates as they may severally have in their pos-
session, to the first term of the inferior court in the respective,
counties in which they shall severally be appointed, in every year,
which account shall contain a statement of the transactions of the
estate to the last day of .December preceding such court, and the
said courts shall yearly, at the court aforesaid, examine the ac-
counts of such guardians, executors and administrators, so to be
exhibited, and shall direct process to issue returnable to the next
EXECUTORS AND ADMINISTRATORS. 14*
court, against all guardians, executors and administrators then fail-
ing to appear, and render such account, whether he, she or they
be resident in the same or any other county, and shall also en-
quire into the abuses or mismanagement of all guardians, execu-
tors and administrators, and whether they or their securities are
likely to become insolvent or not, and thereupon to proceed ac-
cording to the powers herein before given by this act: Providedj
That nothing herein contained shall be construed to restrain the
said inferior courts from enquiring as often as they shall think pro-
per, into the abuses and mismanagement of guardians, executors
and administrators, but they may exercise such powers at any time
when it shall appear necessary. M. & C. Dig. p. 225, 6.
18. The justices of the inferior court in the several counties
throughout this state, at the usual place of holding their courts, on
the first Monday in January, in the year eighteen hundred and thir-
teen, and on the first Monday in January in every second year there-
after, shall proceed by ballot to the choice of clerks of the courts of
ordinary, who shall hold their office for and during the term of two
years, unless sooner removed for malpractice in office, and until a
successor is in manner aforesaid elected. And it is hereby provi-
ded, That the clerk, in manner aforesaid elected, shall be eligible
to re-election. Act. 1811, p. 135.
19. It shall not be lawful for any clerk of the court of ordinary
to exercise the duty of that office, until they shall have respective-
ly given bond and sufficient security to the justices of the inferior
courts of each county respectively, made payable to his excellency
the governor for the time being and his successors in office, in the
sum of two thousand dollars, for the faithful performance of their
duty respectively. It shall be the duty of the justices of the mfe-
rior 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 re-
strictions 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. Act. 1815, p. 10,11.
20. When the administrator, administrators or, administratrix
of the estate of any intestate shall die before he has fully admin-
istered upon the estate, and the person or persons whom the court
142 EXECUTORS AND ADMINISTRATORS.
of ordinary shall appoint administrators or administratrix de bonis
non upon such unadministered estate, shall refuse to give the secu-
rity required by law ; or when the applicant or applicants for let-
ters of administration de bonis non upon unadministered estates,
shall be incapable of giving the security 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 ad-
ministration 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 di-
rection of said court, for which purpose the said clerk, or other
person as aforesaid, shall have full power and authority to com-
mence and defend suits at law, as the legal representative of such
unadministered estate: Provided, 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 representative of any such unadmin-
istered estate, than an exemplifiedcopy of the aforesaid special or-
der of the court of ordinary.
Whenever the administration of an estate shall be vested in the
clerk of the court of ordinary, or other person as aforesaid, accord-
ing to the provisions of this act, the executor, executors, execu-
trix, administrator, administrators or administratrix of the decea-
sed administrator or administrators, shall be bound to pay into the
clerk's hands, or other person as aforesaid, all monies, and also to
deliver to him all bonds, notes, accounts and other papers, and all
the property belonging to such unadministered estate, and fully to
account of and concerning the acts of his, her or their deceased
testator or intestate upon such unadministered estate.
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.
Act. 1815, p. 54, 5.
21. It shall and may be lawful for the inferior court in the sev-
eral counties of this state, when sitting for ordinary purposes, to
order a sale which shall be at public auction, and on the first Tues-
day in the month, at the place of public sales in the said county,
first giving sixty days notice thereof in one of the gazettes and at
the door of the court house in the county where such application
EXECUTORS AND ADMINISTRATORS. 14S
shall be made, of such part or the whole of the real estate of every
testator or intestate, on application of the executor, or executors
or executrix, administrator, administrators or administratrix, guar-
dian or guardians, where it is made fully and plainly appear, that
the same will be for the benefit of the heirs and creditors of such
estate: Provided, That a notice of such application for sale be
first made known in one of the gazettes in this state, at least nine
months before any order absolute shall be made thereupon. Act
1816, p. 125.
22. The inferior courts of this state, sitting as courts of ordinary,
shall have full power to appoint guardians for the persons and es-
tates of all ideots, lunatics and persons insane. And it is hereby
made the duty of said courts, to require bond and good security
from all guardians appointed in pursance of this act, for the faith-
ful discharge of their duties. And said courts are hereby vested
with full power to remove any guardian who shall fail or refuse to
manage the person or property of such ideot, lunatic or person
insane, in a proper manner.
All such guardians shall be compelled within three months after
their appointment, to make an inventory of the .estate of their
ward, and cause the same to be appraised, as the law directs in
eases of deceased person's estates, and return the same on oath to
said court.
When it shall appear to the court, that a sale of all or some part
of the estate of such ideot and lunatic or insane person is neces-
sary for their support, or the payment of debts, it shall be the duty
of said court to order such sales, and to authorize and compel the
guardian to make titles to the property.
The wife of such ideot, lunatic or insane person, (if he be mar-
ried,) shall be entitled to the guardianship of her husband's person
and property: Provided, she comply with the requisitions of this
act, reserving to said court the right of joining other persons with
her in said guardianship at their discretion.
All guardians who may be appointed under and by virtue of
this act, shall be bound to make to said court annual returns of
their actings and doings with the person and property of their
wards.
Where a married wom,an, under this law, shall receive the guar-
dianship of her husband's person, goods and effects, the bond so gi«
yen by her as guardian, shall be good and valid in law, to all in-
tents and purposes. Acts of 1818, p. 159.
*44 EXECUTORS AND ADMINISTRATORS.
II. Dower.
Under this head it is proper to observe, that the term dower re-
lates exclusively to real property, ^nd 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 a
child's part. She is, as will hereafter be seen, entitled to her dow-
er 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
husband's estate at her death, to be disposed of among the heirs j
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.
1. When any person holding real or personal estate, shall de-
part this life intestate, the said* estate, real and personal, shall be
considered as altogether of the same nature and upon the same
footing, so that in case of there being a widow and child, or chil-
dren, 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 re-
ceive a child's part or share out of the personal estate. Clay. Dig.
p. 193.
2. 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 portion of the said estate. Clay. Dig. p. 382.
For the mode of assigning Dower, see title III. § 5.
III. Estates.
1. Estates shall not be entailed. M. & C. Dig. p. 220.
2. When the court of ordinary shall know or be informed that
any guardian, executors or administrators shall waste or in any
manner mismanage the estate of such 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
EXECUTORS AND ADMINISTRATORS. 145
where such guardian, executor or administrators, or his, her, or
their securities, ^re likely to become insolvent, such court may
make such order for the better managing and securing such es-
tate, and educating and maintaining such orphan as they shall
think fit. M. & C. Dig. p. 225. See title I. § 12,14 and 17.
The manner of distributing estates, see title I. § 11.
3. When any person holding real or personal estate, shall de-
part this life intestate, the said estate, real and personal, shall be
considered as altogether of the same nature and upon the same
footing, so that in case of there being a widow and child, or chil-
dren, 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 re-
ceive a child's part or share out of the personal estate. And in
case any of the children shall die before the intestate, their lineal
descendants shall stand in their place and stead. In case of there
being a widow and no child, or children, or representative of chil-
dren, then the widow shall draw a moiety of the estate, and the
other moiety shall go to the next of kin, in equal degree, and their
representatives ; if no widow, the whole shall go to the child, or
children ; if neither widow, child, or children, or legal represen-
tative of the children, the whole shall be distributed among the
next of kin, in equal degree, and their representatives ; but no
representation shall be admitted • among collaterals, further than
the child or children of the intestate's brothers and sisters. If
the father or mother be alive, and a child dies intestate, and with-
out issue, such father or mother, in case the father be dead, and
not otherwise, shall come in on the same footing as a brother or
sister would do : Provided, that s.uch mother, after having inter-
#married, shall not be entitled to any part or proportion of the es-
tate of a child, who shall die intestate, and without issue, but the
estate of such child shall go to and be vested in the next of kin on
the side of the father; And provided also, that on the death of the
last child, intestate, and without issue, the mother shall take no
part of his or her estate, but the same shall go to and be vested,
in like manner, in the next of kin on the father's side. And in
case a person dying-without issue, leaving brothers or sisters, of
the whole and half blood, then the brothers and sisters of the
whole blood and the half blood, in the paternal line only, shall in-
herit equally; but if there shall be no brother or sister, or issue of
brother or sister, of the whole or half blood, in the paternal line,
T
146 EXECUTORS AND ADMINISTRATORS.
then those of the half blood, and their issue, in the maternal line,
shall inherit. The next of the kin shall be investigated b) the fol-
lowing rules of consanguinity, viz. children shall be nearest pa-
rents, brothers and sisters shall be equal in respect to distribution,
and cousins shall be next to them. Clay. Dig. p. 193—4-.
4. The same rules shall obtain, in regard to the granting letters
of administration on intestate estates, as are mentioned for the
distribution thereof j and should any case arise, which is not ex-
pressly provided for1, respecting intestate estates, the same shall
be referred to and determined by the common law of this land, as
it hath stood since the first settlement of this state, except only,
that real and personal estate shall always be considered, in respect
to such distribution, as being precisely oh the same footing. And
in cases of intermarriage since the twenty-second day of Februa-
ry, one thousand seven hundred and eighty-five, the real estate
belonging to the wife, shall become vested in, and pass to the hus-
band, in the same manner as personal property doth ; and in case
of the death of the husband thereafter, intestate and without
will, the said estate shall descend and become subject to distribu-
tion in the same manner as personal property. M. & C. Dig. p.
217.
5. In all cases where any persons being of full age are seized
of lands in coparcenary, joint tenancy or tenancy in common ; or
where any lands shall descend or be given to any person or per-
sons whatever, in coparcenary, joint tenancy or tenancy in com-
mon, and no provision shall be made, by will or otherwise, how
such lands and tenements shall be divided, it shall and may be
lawful for such persons,, being of full age, or either of them, im-
mediately, and also for any one of such coparceners, joint tenants
or tenants in common, who may be under age, when, and so soon
as he or she shall attain the age of twenty-one years, to apply to
the general court of, pleas for a writ of partition, (to be devised
and framed in the said court, according to the nature of the case)
and in case he or she, so coming of age, shall neglect to do so
within the space of twelve months, that then the guardian or guar-
dians of him, her, or them, remaining under age, shall be, and he,
she, or they is, and are hereby empowered, if he, she, or they
shall think fit, to apply to the said court for a writ of partition;
of which application twenty days notice shall be given to the other
parties concerned, their agents or attorneys ; and upon any such
application, and affidavit made of due notice having been given as
EXECUTORS AND ADMINISTRATORS. 147
aforesaid, it shall and may'be lawful for the said court to examine
the petitioner's title and part or share of the premises to be divi-
ded, and thereupon to issue a writ of partition, directed to any
eleven persons whom the court shall think fit, requiring and com-
manding them, or k majority of them, to make partition accord-
ingly, they being, first sworn in court, or before one of the judges,
or any magistrate, or any other person or persons for this purpose
nominated and appointed by order of court duly and impartially
to execute such writ. And such partitioners, or persons named
in such writ, shall give eight days notice of the time of executing
thereof, to all the parties concerned, their attornies or agents, and
thereupon to proceed to make a just and equal partition and di-
vision of all such lands and tenements, either in entire tracts or
parcels, as they shall judge to be in proportion to the shares
claimed, and most beneficial to the several coparceners, joint ten-
ants, or tenants in common, according to the best of their know-
ledge ; and shall make return thereof, under their hands and seals,
to the said court, within three months after the issuing of such
writ, there to remain of record ; which partition or division to be
made, shall, by the judgment of the said court, be final and con-
elusive to all the parties concerned, any law, statute, usage, or cus-
torn to the contrary notwithstanding: Provided always, that if
the defendant or defendants, or person concerned, or either of
them, against whom, or their right or title, any judgment is given,
shall within the space of twelve months after such judgment is
entered ; or in case of infancy, coverture, insanity of mind, or ab-
sence out of the province, within one year after his, her, or their
return, or the determination of such inability, applying themselves
to the court where such judgment is entered, by motion, and shew
a good and probable matter in bar of such partition, or that the
demandant hath not title to so much as he hath recovered, then,
and in such case, the court may suspend or set aside such judg-
ment, and admit the tenant or tenants, to appear and plead ; and
the cause shall proceed according to the due course of law, as if
no such judgment had been given. And if the court, upon hear-
ing thereof, shall adjudg6 for the first demandant, then the said
first judgment shall stand confirmed, and be good against all per-
sons whomsoever, except such other persons as shall be absent or
disabled as aforesaid; and the person orpersons so appealing, shall
be awarded thereupon to pay costs ; or if within such time or
times aforesaid, the tenants or persons concerned, admitting the
148 EXECUTORS AIsFD ADMINISTRATORS
demandant's title, parts or purparts, shall shew to the court any
inequality in the partition, the court may award a new partition
to be made, in presence of all parties concerned, (if the parties
appear) notwithstanding the return and filing upon record the for-
mer; which said second partition, returned and filed, shall be
good and firm for ever, against all persons whomsoever, except as
before excepted.
The persons making such partitions shall be allowed and paid
a reasonable charge for the same. And in case the party or
parties applying for such writ of partition, shall neglect or refuse
to allow and pay isuch charge, the same shall upon application be
settled and awarded by the court. M. & C. Dig. p. 315—16.
Eor the mode of selling the real estate of deceased persons, see
title I. § 21.
Also, concerning escheated estates, see title I. § 8.
6. No sale of estates, made by executors or administrators,
shall commence before the hour of ten o'clock in the forenoon, or
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 adver-
tisement 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 the sale shall commence. Clay. Dig. p. 207.
7. Where 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 intes-.
tate, or having obtained an order of sale, and the said estate shall
be claimed by any other person or persons, such claimant, by him-
self, his agent or attorney, shall file with the clerk of the inferior
court, or court of ordinary, as the case may be, such claim, on
oath, a copy whereof shall be served upon such executor or ad-
ministrator 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 judiciafy, for the trial of the right of property, levied
on under executions.
And 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 orinfe-
rior court, next to be held after such claim filed in the county
EXECUTORS AND ADMINISTRATORS. 149
where such executor 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. Clay. Dig. p. 560.
For estates of idiots, lunatics, and persons insane, see title I. §
22. p. 13.
IV. Executors and Administrators.
1. All and every executor and administrator, who shall, before
the ordinary of this province, for the time being, or such person
as he shall depute or appoint, qualify him, her or themselves, for
the administration of the estate and effects of liis, her or their tes-
tator or intestate, shall, upon oath, be bound to produce and show
to the appraisers, that shall be appointed by the ordinary for that
purpose, or any three or more of them, all and singular the goods
and chattels of his, her or their testate or intestate, as have or shall
come into his, her or their, or either of their hands, possession or
knowledge, and within sixty days after such his, her or their quali-
fication, shall cause to be made a true and just appraisement, upon
oath, of all and singular the goods and chattels aforesaid, and ex-
hibit, or cause to be exhibited, the said appraisement, certified un-
der the hands of any three or more of the appraisers aforesaid,
.within three months after such his, her or their qualification, to-
gether with a full and perfect inventory of all and singular the
rights and credits of the said testator or intestate, whether the
same be in ready money, judgments, bonds, or other specialties
or notes of hand, together with a list or schedule of the books of
accounts of such testator, to which books all parties concerned
shall, upon request, and at convenient times, have free access j and
every such executor and administrator shall be, and they are hereby
made chargeable with the real value of the goods and chattels in
the said inventory contained, and with so much of the credits only
as he, she or they, after due care and proper diligence, shall re-
cover and receive, in like manner as executors and administrators
are made chargeable by the common and statute law of England.
M. & C. Dig. p. 213.
2. No executor or administrator shall be permitted to take any
estate, or any part thereof, at the appraisement, and that no appraise-
"ment, to be made as aforesaid, shall be binding or conclusive, either
150 EXECUTORS AND ADMINISTRATORS.
upon the creditors, legatees, next of kin, or other person interest-
ed in such estate, or upon the executors or administrators, but all
and every such executor and administrator shall be chargeable and
accountable for the true value of such estate, any practice to the
contrary notwithstanding. Ib. p. 214.
3. All intended sales of goods and chattels belonging to testa-
tors or intestates, shall be published in two or more public places
in the parish where such effects are to be sold, and in the gazette,
at least forty days before the day of such intended sale. Ib.
4. In case any person in the province, shall hereafter happen,
by his will, to appoint his debtor to be his executor, such appoint-
ment shall not, in law or equity, be construed or deemed to be a
release or extinguishment of any debt due to the testator, unless
the testator shall, in his will, expressly declare his intention to de-
vise, bequeath or release such debt, any law, usage or custom to
the contrary notwithstanding. M. & C. Dig. p. 214.
5. No letters of administration shall hereafter be granted, by
the ordinary of this province, to any person or persons whomso-
ever, as principal creditor or creditors to any intestate, but upon
special trust and confidence, and for the benefit of all and singular
the rest of the creditors ; and that all debts* of an equal nature,
shall be discharged by such administrator or administrators, in
average and proportion, as far as the assets of the intestate shall
extend, and that no preference shall be given among the creditors
in equal degree ; and that every such administrator and adminis-
trators, shall be obliged to sue for such debts which he or they
may reasonably expect to recover, or, at the request and proper
charges of any of the creditors of the intestate, assign and em-
power them, or any of them, to sue for the debts outstanding to
the estate of such intestate, any law, usage or custom to the con-
trary notwithstanding. Ib. p. 215.
6. No creditor or creditors, to be appointed administrator or
administrators in trust, as herein before mentioned, may retain, in
his or their hands, the monies he or they shall receive, by virtue
of such administration, longer than necessary; and every such
administrator or administrators, shall, within twelve months after
the death of his or their intestate, or after his or their obtaining
administration thereon, make a dividend of the moneys arising
* See § 20, which prescribes the order in which debts shall be paid.
EXECUTORS AND ADMINISTRATORS. 151
from such intestate's estate and effects, to and among the several
creditors, in like proportion as aforementioned. And in case such
estate and effects shall not then be wholly divided, a second divi-
dend thereof shall be made, within two years from the death of
the intestate ; which second dividend shall be final, unless any suit
shall be then depending, or any part of the intestate's estate stand-
ing out, or unless some future estate of the intestate shall after-
wards come to the hands of such administrator or administrators ;
—in which case, he or they shall, as soon as may be, convert such
future estate into money, and shall, within three months after,
divide the same, to which effect it shall be inserted in the condi-
tion of the bond, to be given as aforementioned, on obtaining let-
ters of administration. Ib.
7. It shall and may be lawful to and for all and every executor
and administrator, guardian and trustee, for his, her and 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 hun-
dred pounds, which he, she or they shall hereafter receive, except
on the appraised value of any estate, that shall come into their
hands j 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 delivering up any such estate, to the
person or persons entitled to the same, during the course and con-
tinuation of their or either of their management or administra-
tion,) and so in proportion for any sum less than one hundred
pounds : Provided nevertheless, That no executors or administra-
tors, guardian or trustee, shall, where 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-
ceeding the 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 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,
any law, usage or custom to the contrary notwithstanding.
152 EXECUTORS AND ADMINISTRATORS.
8. As it may be very difficult to ascertain the proper and ade-
quate allowance to be made in all cases, and as the sums herein
before allowed may not be sufficient compensation for the care,
trouble and pains which executors, administrators, guardians or
trustees may take in the management of their respective trusts, in
some particular cases: Be it further enacted, That if any execu-f
tors, administrators, guardians or trustees, who shall have had ex-
traordinary trouble, in the management of the estates under their
care, and shall not be satisfied with the sums herein before men-
tioned, such executors, administrators, guardians or trustees, shall
and may be at liberty to bring an action in the general court of
pleas, for their services, and the verdict of the jury and judgment
of the court thereupon, shall be final and conclusive in such cases:
Provided always, That no verdict shall be given for more than
fifty shillings per cent, over and above the sums allowed by this
act. Ib.
9. The commissions given by this act shall be divided amongst
executors, administrators, guardians and trustees, according to the
proportion of the services by them respectively performed, to be
rated and settled by the chief justice and two of the justices of
general court of pleas, in case the executors, administrators, guar-
dians and trustees cannot agree amongst themselves concerning
the same. M. & C. Dig. p. 215-16.
10. The same rules shall obtain, in regard to the granting let-
ters of administration on intestate estates, as are mentioned for the
distribution thereof; and should any case arise, which is not ex-
pressly provided for, respecting intestate estates, the same shall
be referred to, and determined by the common law of this land, as
it hath stood since the first settlement of this state, except only,
that real and personal estate shall always be considered, in respect
to distribution, as being precisely on the same footing. Ib. 217.
11. It shall be the duty of an executor or executors, adminis-
trator or administrators, in all cases where titles to lands are made,
to make a fair statement thereof, describing the boundaries and
situation of the land, and return the same, together with the bond,
obligation 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. Ib. p. 219.
12. Every executor and administrator shall annually, \v hilst the
estate shall remain in his or their care or custody, on the first day
Executors and administrators. 153
of January, or within ten days thereafter, render to the register of
probates, in the county in which they obtained probate of will or
letters of administration, a just and true account, upon oath, of
the receipts and expenditures of such estates the preceding year*
which, when examined and approved, shall be deposited, with the
inventory and appraisement or other papers belonging to such es-
tate, in the said office, there to be kept for the inspection of such
persons as may be interested in the said estate, and that no charge
shall be made for such search and inspection by persons interest-
ed ; and if any executor or administrator shall neglect to render
such annual accounts, he shall not be entitled to any commissions
for his trouble, in the management of the said estate, and shall
moreover be liable to be sued for damages, by any person or per-
sons interested in the said estate. Ib. p. 220.
13. When any will shall, be proved) or application is made for
administration for any person dying intestate, the register shall di-
rect the executors or administrators to make out an exact inven-
tory of the personal estate of the deceased, and shall appoint three
or more respectable freeholders, who shall appraise the same, on
oath; which inventory and appraisement shall be returned, within
three months, into the register's office j and every appraisement,
made as aforesaid, may be given in evidence, in any action against
such executors or administrators, to prove the value of the estate,
but shall not be conclusive, if it shall appear on the trial of the
cause, that the estate was really worth or bona jide sold for more
or,less than such appraisement. Ib. p. 221.
14. " Oath of appraisers"—You, A. B. C. D. E. F. do swear
that you will make a just and true appraisement of all and singu-
lar the goods and chattels (ready money only excepted) of G. H*
deceased, as shall be produced by I. K. the executor or adminis-
trator of the estate of said G. H. deceased, and that you will re-
turn the same certified under your hands, unto the said J. K. ex-
ecutor or administrator, within the time prescribed by law. Ib*
p. 214.
15. 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 register of probates of the
county wherein'such will shall be proved, shall, on application,
grant letters of administration with the will annexed, to such per-
son or persons as would have been entitled thereto, if the de-
©eased had died intestate, And if any person shall die intestate,
IT
154 EXECUTORS AND ADMINISTRATORS.
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 ad-
ministration to them who would have been entitled thereto. Ib.
p. 221.
16. Every executor, (or administrator with the will annexed) at
the time of proving the will, or granting administration, shall take
the following oath: " I do solemnly swear, that this writing con-
tains 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 ex-
tend, and the law charge me; and that I will make a true and
perfect inventory of all such goods and chattels. So help me God."
Ib. p. 221.
17, And the 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 j the condition of which bond shall be
in form following, 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. F. deceased, do
make, or cause to be 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 knowl-
edge 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 ordi-
nary for said county, at such time as he shall be thereunto requir-
ed by the said court of ordinary, and the same goods, chattels and
credits 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 le-
gacies contained and specified in the said will, as far as the goods,
chattels and credits will extend, or the law require, then this obli-
gation to be void, else to remain in full force." Which bond shall
be made payable to the register of probates for the county, (now
court of ordinary) and their successors in office, and recorded in
the clerk's office of the superior 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 damage sustained being as-
sessed on such suit, by the verdict of a jury, may be levied by
execution, and paid to the party for whom they were assessed:
EXECUTORS AND ADMINISTRATORS. 155
Every administrator, when letters are granted to him, shall take
the following oath or affirmation, as the case may be, before the re-
gister of probates: " I do solemnly swear or affirm, that A. 33.
deceased, died without any will, as far as X know or believe, and
that I will well and truly administer on all and singular the goods
and chattels, rights and credits of the said deceased, and pay all
his just debts, as far as the same will extend, and the law requires
me j and that I will make a true and perfect inventory of all and
singular the goods and chattels, rights and credits, and a just re-
turn thereof, when thereunto required. So help me God."
18. And such administrator shall also enter into bond, with good
security, to be appointed by the register, in a sum equal to the
full value of the estate, with the condition following, to wit: " The
condition of the above obligation is such, that if the above bound
A. 33. administrator of the goods, chattels and credits of C. D.
deceased, do make a true and perfect inventory of all and singu-
lar the goods, chattels and credits of the said deceased, which have
or shall come to the hands, possession or knowledge of the said A.
33. or into the hands or possession 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 goods,
chattels and credits, do well and truly administer ^according to law,
and do make a just and true account of his actings and doings
thereon, when required by the said court of ordinary of said county.
And all the rest of the goods, chattels and credits, which shall be
found remaining upon the account of the said administrator, the
same being first allowed by the said court, shall deliver and pay
to such 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 A. B. do, in such case, if required, render
and deliver up the said letters of administration, then this obliga-
tion to be void, else remain in full force." Which bond shall be
made payable to the register of probates, (now court of ordinary)
for the county in which the same shall be given, and to their sue-
cessors in office, and recorded in the clerk's office of the superior
court, and may be sued in like manner as is prescribed in the pre-
ceding clause of this act, in the case of bonds given by executors
with the will annexed; and in case the register shall fail to take
bond with sufficient security as aforesaid, such register shall be
156 EXECUTORS AND ADMINISTRATORS.
liable to be sued for all the damages arising from such neglect, by
any person or persons interested in the estate. Ib. p. 222.
19. If any widow, after having obtained letters of administra-
tion, shall marry again, it shall be in the discretion of the judge
of the superior court, to revoke the administration to her granted,
or join one or more of the next of kin to the intestate, in the ad-
ministration with her. Ib. p. 223.
20. Debts due by any testator or intestate, shall be paid by ex-
ecutors or administrators in the order following, viz; funeral and
other expenses of the last sickness, charges of probate and will,
or of the -letters of administration ; next debts due to the public;
next judgments, mortgages and executions, the eldest first; next
rent; then bonds or other obligations ; a»d lastly, debts due on
open accounts, but no preference whatever shall be given to ere-
ditors in equal degree, where there is deficiency in assets, except
in the cases of judgments, mortgages that shall be recorded, from
the time of recording, and executions lodged in the sheriff's of-
fice, the eldest of which shall be first paid, or in those cases where
a creditor may have a lien on any part of the estate. Every ex-
ecutor or administratbr shall give six weeks notice, by advertise-
ment in one of the public gazettes in this state, or at three differ-
ent places of the most public resort in the county, for creditors to
render an account of their demands j and they shall be allowed
twelve months to ascertain the debts due to and from the deceased,
to be computed from the probate of the will, or granting letters of
administration. And creditors neglecting to give in a state of their
debts within the time aforesaid, the executors or administrators
shall not be liable to make good the same, nor shall any action be
commenced against any executor or administrator, for the recovery
of the debts due by the testator or intestate, until twelve months
after such testator or intestate's death. Ib,
21. All and every the executors and administrators of any per-
son or persons, who, as executor or executors in his or their own
wrong, or administrators, shall waste or convert any goods, chat-
tels, estate or assets of any person deceased, to their own use,
shall be liable and chargeable in the same manner as their testator
or intestate would have been if they had been living. Ib. p. 223.
22. It shall be the duty of the clerks of the courts or ordinary,
in the respective counties, to enter into a book, to be kept for that
purpose, the names of all the executors, administrators and guar-
dians, which may have been, or shall in future be appointed, in the
several counties, together with the names of their securities j which
EXECUTORS AND ADMINISTRATORS. 157
book shall at all times be subject to the examination of the inferior
court, and such other person or persons as may be interested there-
in. Ib. p. 225.
25. When any guardian, executor or administrator, chargeable
with the estate of any orphan or deceased persons, to him, her or
them committed, shall die so chargeable, his, her or their execu-
tors or administrators shall be compellable to pay out of his, her
or their estate, so much as shall appear to be due to the estate of
such orphan or deceased person, before any other debt of such tes-
tator or intestate. Ib. p. 226.
24. No suit or action shall be issued against any executor or ad-
ministrator, for any matter or cause against the testator or intes-
tate of such executor or administrator, in any of the said courts,
until the expiration of twelve months after probate of the will of
such testator, or letters of administration granted on the estate of
such intestate.
And no suit, in any of the said courts, shall abate by the death
of either party, where such cause of action would in any case sur-
vive to the executor or administrator, whether such cause of action
would survive in the same, or any other form, but the same shall
proceed as if such testator or intestate had not died, under the re-
strictions and regulations following:—When a plaintiff shall die,
in any case aforesaid, the executor or administrator of such plain-
tiff shall, within three months after taking out probate of the will,
or letters of administration, give notice to the defendant or defen-
dants, by scire facias, to issue out of the clerk's office, returnable
in the manner herein before prescribed, for the issuing and return
of process ; and in cases where the defendants shall die, it shall
and may be lawful for the plaintiff to issue a scire facias, in man-
ner aforesaid, immediately after the expiration of twelve months,
requiring such executor or administrator to appear and answer to
the said cause. Ib, p. 295.
25. 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 dis-
cover, on oath, all requisite points necessary to the investigation of
truth and justice ; to discover transactions between co-partners
and co-executors j to compel distribution of intestate estates and
payment of legacies, and to discover fraudulent transactions for
the benefit of creditors; and the proceedings in all such cases
shall be by bill, and such other proceedings as are usiial in such
158 EXECUTORS AND ADMINISTRATORS.
cases, until the setting down of the cause for trial; and the courts
shall order the proceedings in such manner, as that the same shall
be ready for trial, at furthest, at the third term from the filing such
bill, inclusive, unless very special cause be shown to induce the
court to continue the same, which shall not extend to more than
four terms, lb. p. 307.
26. That in case either party shall be disatisfied 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 ver-
diet was obtained, enter an appeal in the clerk's office of such court,
(as matter of right,) and jf such verdict shall be obtained in the
inferior court, it shall be the duty of the clerk thereof, to transmit
such appeal to the clerk of the superior court of the county in
which such 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 com
demnation money, except executors and administrators, who shall
not to be liable to give such security; but if on hearing such ap-
peal it shall appear to the jury, that appeal was frivolous and in-
tended for delay only, they shall assess damage to the party ag-
grieved by such delay, not exceeding twenty-fivq 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 af-
ter it shall be entered, but by consent of the parties. Ib. p. 300.
27. No administrator shall be allowed to sell any slave or slaves,
belonging to the estate of his intestate, but where the other per-
sonal estate, together with the hire of such slave or slaves for
twelve months, shall be insufficient to discharge the debts due by
the estate; or where one or more slaves shall be subject to distri-
bution, 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 direct the sale of such slave or slaves: Provided
always, That such distributee, or his, her or their guardian, shall
receive twenty days notice, in writing, previous to the granting of
such order, to show cause, if any he or they can, against such sale.
Clay. Dig. p. 260.
28. 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
EXECUTORS AND ADMINISTRATORS. 159
and quantity as shall be deemed most advantageous to said estate.
Clay. Dig. p. 260.
29. It shall be lawful for any executor or executors, adminis-
trator or administrators, who may have fully discharged the du-
ties assigned to him or them^ to petition the ordinary court, for a
discharge from his or their executorship or administration j upon
■\vhich petition, the said court shall order a citation to be issued,,
requiring all persons concerned to shew cause (if any they have)
why the said executor or executors, administrator or administra-
tors, 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 j and if no cause is sh^wn to the
contrary, and it shall also appear, from an examination into the
situation of the testator's affairs and estates, that the said petition-
ing executor or executors, administrator or administrators, have
faithfully and honestly discharged the trust and confidence re-
posed 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. Clay. Dig. p. 669.
30. It shall be the duty of all guardians, executors and admin-
istrators, to render a full and correct account of the estate and con-
dition of such estates as they may severally have in their posses-
sion, to the inferior court while sitting for ordinary purposes, in
the county for which they may have been appointed, once in each
and every year; which accounts shall contain a statement, on oath,
of the transactions of the estate to the last day of December, pre-
ceding such return, together with the necessary vouchers relating
thereto j and it shall be the duty of said court, after examining the
same, to approbate or reject such accounts; and it shall be the
duty of such court, to order the clerk of such court, to record all
such settlements in a bound book, to be provided by the inferior
court for that purpose; and the said clerk shall receive for his
fees for such recording, the sum of fifty cents for each settlement
so recorded. Ib.
31. Two or more of the justices of the inferior court shall be
authorized, in vacation time, to admit any executor of a will to
prove the same before them j but there shall be a court, and at a
regular and legal time of meeting thereof, before the same shall
be admitted to record. Ib. p. 669.
32. Any executors, executrix, administrators, administratrix,
or guardian, whose residence shall be changed from one county
160 EXECUTORS AND ADMINISTRATORS.
to another, either by the creation of a new county, removal of
otherwise, shall have the privilege of making the annual returns
required of them by this act, to the court of ordinary of the
county in which they reside, by having previously obtained a
copy of all the records concerning the estates for which they are
bound as executors, executrix, administrators, administratrix 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. Act. 1812, p. 87.
For the hours of executor's, &c. sales, and the manner of claim-
ing property thereat, and trying said claims, see title III. Sec. 6
and 7*
V. Guardian.
1. Where a guardian is likely to become insolvent, the court of
ordinary is vested with power to apply a discretionary remedy.
See title I. Sec. 17, also title III. Sec. 2.
2. The manner of proceeding against guardians for failure of
duty, see title I. Sec. 12 and 14.
3. Guardian allowed, in his account, to charge all reasonable
disbursements and expenses, suitable to the circumstances of the
orphan committed to his care. M. & C. Dig. p. 226.
Who may be guardians, and how appointed, over the persons
and estates of ideots, lunatics and persons insane, see title I. Sec.
22. p. 13.
VI. Orphan.
1. Where an orphan is not educated and maintained according
to his circumstances, the court authorized to give relief. See
title I. Sec. 17.
2. Where it shall dppear to the court of ordinary, that the an-
nual profits of the estate of any orphan is not sufficient for the
education and maintenance of such orphan, it shall be the jduty
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 ap-
prentice 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
EXECUTORS AND ADMINISTRATORS. 161
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. M. &
C. Dig. p. 226.
VII. Poor.
1. The inferior courts in the several counties in this state shall
have power to enquire 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 jus-
tice 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 re-
turned in their respective counties, not exceeding one fourteenth*
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 five per centum on the net 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 person interested
therein. And in case any person or persons shall refuse or ne-
gleet 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 collec-
tors are authorized to distrain for the jgeneral 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 j 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 disappro-
bation of the same, on the back of the said accounts so to be pro-
duced. M. & C. Dig. p. 224.
* This is altered to one eighth part, by an act of the legislature, passed 24th
November, 1818.
X
162 EXECUTORS AND ADMINISTRATORS
VIII. JVills and Testaments.
1. Any person having in possession the will of a deceased per-
son, who shall neglect to produce the same to be proved, upon appli-
cation 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. M
& C. Dig. p. 221.
2. 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 and 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. Clay. Dig. p. 381.
3. 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, these rights to qualify shall be
considered to be abated and destroyed, and the said court are
hereby prohibited from admitting them to the same. Ib. p. 382.
4. 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 alsot
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. p. 668.
5. Two or more of the justices of the inferior court.shall be au-
thorized, 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 timr
EXECUTORS AND ADMINISTRATORS. 163
of meeting thereof, before the same shall be admitted to record.
Ib. p. 669*.
Fees of the Clerk of the Court of Ordinary, subject to an increase
of fifty per cent, by act of 1818.
Receiving application and granting citation, one dollar.
Signing a warrant of appraisement, fifty cents.
Signing the probate of a will, one dollar.
Recording a will, or other paper, per copy sheet, six and a quar-
ter cents.
A certified copy of a will, or other paper, per copy, sheet, six
and a quarter cents.
Receiving an appraisement and recording the same, if under
one hundred dollars, fifty cents.
If above one hundred dollars, one dollar.
Receiving an application and granting letters dismissory, one
dollar.
Granting citation to shew cause why administration should not
be repealed and set aside, two dollars.
For granting letters of administration or letters testamentary,
two dollars.
For entering a caveat against administration being granted or
well proven, one dollar.
For every marriage license and recording marriage upon re-
turn of license, one dollar twenty-five cents.
Attending judges for determining caveat per day, one dollar.
On every return made to the court of ordinary, fifty cents.
* To all wills, in which there is any real property devised, there must be three
witnesses, or the will is void as to that property, but it will remain good as to all
the personal property; for it is not necessary (although it would be safer) to
have any witness to a will bequeathing only personal property. All persons,
male and female, are esteemed competent witnesses to prove a will, save only
such as are under the Usual age of discretion, suph as are infamous, as perjured
persons, and the like, and such as are presumed to bear affection, as kindred,
tenants, servants, and the like. A legatee is reputed a competent witness to
prove any other part of a will but his own legacy, but uo otherwise.
Where there is no question nor opposition, moved or had, about or against a
will, there the oath of the executor alone is esteemed a sufficient proof of it, and
in that case regularly no other proof is required. 6 Wood. 574—596.
164 EXECUTORS AND ADMINISTRATORS.
When appointed administrator de bonis non, the same com-
missions as are received by all other executors and administra-
tors.
Form of the Bond* of an Administrator with the Will annexed.
Georgia, Know all men by these presents, that we
Clarke County. C fames Saunders, Julius Smith and Robert An-
derson are held and firmly bound unto their honours the judges
of the court of ordinary for said county, and their successors in
office, in the just and full sum of ten thousand dollars, for the
payment of which sum, to the said judges 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 June, eighteen hundred and eighteen.
The condition of this obligation is such, that if the above bound
James Saunders, administrator with the will annexed of the goods,
chattels and credits of John Stiles, deceased, do make, or cause
to be 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
James Saunders, or into the possession of any other person for
him j and the same, so made, do exhibit to the court of ordinary
for said county, at such time as he shall be thereunto required by
the said court of ordinary, and the same goods, chattels and
credits 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
legacies contained and specified in the said will, as far as the said
goods, chattels and credits will extend, or the law require, then
this obligation to be void, else remain in full force.
Signed, sealed and acknowledged James Saunders, (L. S.)
in open court. Julius Smith, (L. S.)
Richard Roe, Clerk C. O. Robert Anderson, (L. S.)
* This bond, as well as the next, must be recorded m the clerks office of the
superior court, and it is the duty of the clerk of the court of ordinary to have it
done.
EXECUTORS AND ADMINISTRATORS. 165
Form of an Administrator's Bond.
Georgia, Know all men by these presents, that we,
Clarke County. ^ fames Saunders, Julius Smith, and Robert An-
derson are held and firmly bound unto their honours the judges of
the court of ordinary for said county, and their successors in of-
fice, in the just and full sum of ten thousand dollars, for the pay-
ment of which sum, to the said judges 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
June, eighteen hundred and eighteen.
The condition of the above obligation is such, that if the above
bound James Saunders, administrator of the goods, chattels and
credits of John Stiles, late of this county deceased, do make a
true and perfect inventory of all and singular the goods, chattels
and credits of said deceased, which have or shall come to the
hands, possession or knowledge of the said James Saunders, or
into the hands or possession 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 goods,
chattels and credits, 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 or-
dinary for said county, and all the rest of the goods, chattels and
credits, which shall be found remaining upon the accourit of the
said administration, the same being first allowed of 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 let-
ters of administration, then this obligation to be void, else to re-
main in full force. >
Signed, sealed and acknowledged James Saunders, (L. S.)
in open court. Julius Smithy (L.S.)
Richard Roe, Clerk C..O, Robert Anderson, {L.S.)
166 EXECUTORS AND ADMINISTRATORS.
Form of Letters of Administration.
By the court of ordinary for said county.
Whereas John Stiles, late of this county, deceased, died intes-
tate, having, while he lived and at the time of his death, divers
goods, chattels and credits, within the county aforesaid, by means
whereof the full disposition and power of granting the administra-
tion of all and singular the goods, chattels and credits of the said
deceased, and also a final dismission from the same, to the court
aforesaid does of right belong:—They, desiring that the goods,
chattels and credits of said deceased, may be well and truly ad-
ministered, and legally disposed of, do hereby grant unto fames
Saunders, administrator, full power, by the tenor of these presents,
t© administer the goods, chattels, and credits of said deceased,
which to him, in his life time 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 bal-
ance justly to pay over to the legal heirs and distributees of the
said deceased. And the said fames Saunders, having given
bond and security, and taken the oath and performed all other re-
^quisites required by law, necessary to his just qualification, as
administrator, he is, by order of said court, and by virtue of these
presents, ordained, constituted and appointed administrator of all
and singular the goods, chattels and credits of said deceased.
Witness the honourable fames Murray, one of the judges of
the said court of ordinary, this the tenth day of fune,
* * one thousand eight hundred and eighteen.
Richard Roe, Clerk C. O.
Form of Letters Testamentary.
By the court of ordinary for said count).
To all to whom these presents shall come, Greeting :
Know ye, that on the tenth day of fune, in the year of oitr
Lord, one thousand eight hundred and eic, hteen, the last will and
testament of fohn Stiles, late of said county, deceased, was ex-
Georgia,
Clarke County.
Georgia,
Clarke County.
EXECUTORS AND ADMINISTRATORS. 167
hibited in open court, and in common form of law, proved and
admitted to record, a copy of which is hereunto annexed, and ad-
ministration of all and singular the goods, chattels and credits 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 au-
thorized to administer the goods, chattels and credits of the said
deceased, according to the tenor and effect of the said will and
testament, and according to law. And he is hereby required to
render a true and perfect inventory of all and singular the goods,
chattels and credits of the said deceased, and appraised and re-
turned 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 judges of
the said court of ordinary, this the tenth day of June,
* ' *' in the year of our Lord eighteen hundred and eighteen.
Richard Roe, Clerk C. O.
Warrant of Appraisement.
By the court of ordinary for said county
#
To William Temple, Jacob Lee, Joseph Jones, Charles Miller arid
Henry Browning.
These are to authorise and empower you, or any three of you,
to make a just and true appraisement of all and singular the goods
and chattels (ready money only excepted) of John Stiles, late of
said county, deceased* in dollars and cents, as shall be produced
by James Saunders, the executor {or administrator) of the estate
of the said John Stiles: You, and each of you, first taking the
oath required 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 the said executor {or administrator,) within the
time prescribed by law.
Georgia,
Clarke County. ^
168 EXECUTORS AND ADMINISTRATORS.
Witness the honourable James Murray, one of the judges of
the said court of ordinary, this the tenth day of June,
* ' *> one thousand eight hundred and eighteen.
Richard Roe, Clerk C. O,
Guardian's Bond.
Georgia, Know all men by these presents, that we,
Clarke County. ^ James Saunders, Julius Smith and Robert An-
derson are held and firmly bound unto their honours the judges of
the court of ordinary for said county, and their successors in of-
fice, in the just and full sum of Jive thousand dollars, for the pay-
ment of which sum, to the said judges and their successors in of-
fice, 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 June, one thousand eight hun-
dred and eighteen.
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, now if the said James Saunders do
well and truly demean himself as guardian aforesaid, agreeably to
letters of guardianship bearing even date herewith, and agreeably
to law in such case made and provided, the above obligation to
be void, otherwise to remain in full force and virtue.
Signed, sealed and acknowledged James Saunders, (L. S.)
in open court. Julius Smith, (L. S.)
Richard Roe, Clerk C. O. Robert Anderson, (L. S.)
Letters of Guardianship.
State of Georgia, 1 ^ ^
Clarke county. J B>',he Court of °rdmary for said countJ -
To James Saunders of the said county, Greeting :
Whereas William Stiles, orphan of John Stiles, deceased, is
possessed in his own right of a considerable estate, by means
whereof the power of granting the guardianship of the said Wil-
Ham Stiles to us is manifestly known to belong, and for the better
securing the estate, and more ample maintenance and education
of the said orphan, and from the integrity and confidence reposed
in you, we do hereby commit the tuition, education, and guardian-
ship of the said William Stiles to you, the said James Saunders,
EXECUTORS AND ADMINISTRATORS. 169
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 cir-
cumstances, during his minority, and that you enquire into, and
take charge of his estate, both real and personal, and all other
things to do, which by law you ought to do, 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 con-
stitute and appoint you, the said James Saunders, guardian of the
aforesaid William Stiles, during his minority.
Witness the honourable James Murray, one of the judges of
the said court of ordinary, this the tenth day of June,
' ' one thousand eight hundred and eighteen.
Richard Roe, clerk, C. O.
Apprentice's Indenture.
Georgia, "1 This Indenture made and entered into by
Clarke county. J and between the court of ordinary of the coun-
ty aforesaid, 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 concerned, bound and
put as an apprentice to the said James Saunders, William Stiles,
a poor orphan of John Stiles, late of said county, deceased, to
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 jive 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
contract matrimony within the said term; he shall not absent him-
self 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 ap-
prentice in the trade and mystery of a carpenter, and provide for
him, the said apprentice, sufficient meat, drink, apparel, and lodg-
ing, and all other things fitting for an apprentice, during the said
time^and the said master is to give the said apprentice the school-
Y
170 EXECUTORS AND ADMINISTRATORS.
ing and education required by the act of the legislature in such
case made and provided.
In witness whereof, the said James Saunders hath hereunto
set his hand and seal, this tenth day of June, one thou-
sand eight hundred and eighteen.
James Saunders, (L. S.)
Signed, sealed, and acknow-
ledged in open court.
Richard Roe, clerk, C. O.
Form of Master's Bond.
Georgia, ") Know all men by these presents, that we,
Clarke county. J James Saunders and Julius Smith, are held
and firmly bound unto the court of ordinary for said county, and
their successors in office, in the sum of Jive hundred dollars, for
which payment well and truly to be made, 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 June, one thousand eight hundred and eighteen.
The condition of the above obligation is such, that whereas the
court aforesaid has this day bound unto the said James Saunders,
a poor orphan of said county, by the name of William Stiles, son of
John Stiles, deceased, of the age of sixteen years, for five years,
or until he shall arrive to the age of twenty-one.—Now if the
said James Saunders shall treat, use afid degl with the said orphan
according to an act of the legislature in such case made and provi-
ded, then the above obligation to be void, or else remain in full
force and virtue.
James Saunders, (L. S.)
Julius Smith, (L. S.)
Signed, sealed, and acknow-
ledged in open court.
Richard Roe, clerk, C. O.
The following is the form of an inventory and appraisement,
with the necessary certificates annexed to it.
EXECUTORS AND ADMINISTRATORS. 171
Inventory and appraisement of the estate of John Stilesy
No. 1 Joe, a negro man, valued at
2 Edmund,
3 Lucy, woman,
4 Black horse,
5 Red cow,
6 Twenty sheep,
7 Eighty hogs,
8 Waggon,
9 Ten plough hoes,
10 Nine axes,
11 Five pair of trace chains,.
X2 One note of hand, given by Wm. Wood,
dated 1st Nov. 1810, and payable at
ten days
deceased.
$ cts.
800 00
700 00
500 00
100 00
15 00
40 00
150 00
100 00
20 06
18 00
5 00
300 00
2658 00
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 goods, chattels, and credits of the es-
tate of John Stiles, deceased, to the best of our judgment and
understanding.
Wm. Jones. 1
Richard. Winn, > Appraisers.
Peter Ward, )
I do hereby certify that the above appraisers were sworn to
perform their duty as appraisers, according to law, this tenth day
of June, one thousand eight hundred and eighteen.
Joshua Ray, J. P.
172 EXECU'IORS AND ADMINISTRATORS.
An inventory of the personal property of John Stiles, deceased,
sold at public sale, on the tenth of June, one thousand eight
hundred and eighteen, at twelve months credit.
8
cts
Jacob Moore purchased Black horse,
105
00
John Reid
Red cow,
15
00
Peter Smith
Ten sheep,
20
00
Benjamin Young
do.
20
00
Ralph Williams
Forty hogs,
80
00
Joshua Wood
do.
85
00
Wm, Park
Waggon,
120
00
Do.
Five plough hoes,
10
00
James Swaine
do.
10
00
Stephen Lane
Four axes,
5
00
John Brown
Five do.
10
00
Henry Thomas
Five pair chains,
5
00
485
00
The following is the form of a return to be made, on oath, by
an executor, (or administrator,) to the court of ordinary. It is
proper to remark, that every executor (or administrator) ought to
take a receipt for each payment made by him out of the money of
the estate, expressing the amount, (hot in figures,) and particularly
on what account, and to state the sum to be received of him as ex-
ecutor (or administrator.)
EXECUTORS AND ADMINISTRATORS. 173
Dr. the estate of John Stiles, deceased, to James Saunders, exe-
cutor.
June 10 To letters of ad- Cr»
ministration as By amount of Wm. Wood's
per voucher, note, 300
No. 1 3 00 Interest on do.5y. 2 m. 124
Crier of sale, 2 2 00 1819. . 424 00
Taxes for 1809, 3 15 00 June 10 By Rh. Williams' note 80 00
15 Note of hand paid, 4 100 00 Sept. 10 Jacob Moore's 105
16 Proven account, 5 50 00 Int. 3 months, 2
July 6 Printer for adver- 107 00
Using 0 10 00 Dec. 25 Wm. Park's 130 00
Oct. 10 Cotton bagging 7 35 00 Int. 6 ms. 15. ds. 5 63
1819 135 63
Jan'y. 1 Clerk court of Or-
dinary, 8 4 50
2 Salt, 9 10 00
June 10 Cash paid Jacob
Moore's note,
due this day, 10 100 00
Dec. 25 Balance on hand, 417 13
746 63 746 63
By balance on hand, 417 33
Form of a Receipt for a Legaci/.
S50O OO
Received this tenth day of June, eighteen hundred and eigh-
teen, of James Saunders, executor of the last will and testament
of John Stilesy late of Clarke county, deceased, the sum of fve
hundred dollars, in full of a legacy bequeathed to me in and by
the last will and testament of the said John Stiles.
William Stiles.
m
EXTORTION
EXTORTION.
It is said, that extortion, in a large sense, signifies any oppres-
sion under colour of right; but that in a strict sense it signifies
the taking of money by any officer, by colour of his office ; either
where none at all is'due, or not so much is due, or where it is not
yet due. 1 Haw. 170.
Justices of the .peace are bound by their oath of office to take
nothing for their office of justice of the peace to be done, but
fees accustomed, and costs limited by statute.
And generally, no public officer shall take any other fees or rewards,
for doing any thing relating to his office, than some statute in force
gives him, or else, as hath been anciently and accustomably taken;
and if he do otherwise, he is guilty of extortion. Dalt. c. 41.
It has been resolved, that a promise to pay any officer money,
for the doing of a thing which the law will not suffer him to take
any thing for, is merely void. 1 Haw. 171.
If any public officer or person, or his deputy or agent, or any
person acting as such, shall, under pretence of any matter or thing
done, transacted or performed by any such public officer or person,
or his deputy or agent, or any person acting as such, demand any
other or greater fee than is set down in the fee bill; every such
person so offending, shall, for every such offence, forfeit and pay
four fold to the party aggrieved, for the sum so unjustly demand-
ed or taken, to be recovered with costs of suit before any justice
of the peace. Provided, the sum does not exceed his jurisdiction,
or in any court of record within this state.
Any public officer, who shall charge or take fees not allowed by
this act, shall, on conviction thereof, be dismissed from office.
Any public officer, who shall presume on any pretence what-
ever, to charge, demand, or receive fees for services not done or
performed j every such person so offending, shall forfeit and pay
to the party aggrieved, four fold the sum,so illegally charged, de-
manded or received, and shall be immediately dismissed from of-
fice. M. & C. Dig. p. 233.
FEME COVERT.
173
FALSE IMPRISONMENT.
False imprisonment is a violation of the personal liberty of a
free white person or citizen, and consists in confinement or deten-
tion, without sufficient legal authority.
The arrest, confinement or detention of a person or a citizen by
another, having no process, warrant or legal authority to justify it,
shall be punished by fne and imprisonment in the common jail of
the county where the offence may have been committed, or either,
at the discretion of the court; and in all cases of an aggravated
nature, the court may order an imprisonment in the penitentiary,
for any term not longer than two years.
The arrest^ confinement or detention of a free person or citizen
by the warrant, mandate or process of a magistrate, being mani-
festly illegal, and shewing malice and oppression, the said magis-
trate shall be removed from office ; and such magistrate, and all
and every person and persons, knowingly and maliciously concern-
ed therein, shall be punished by fine and imprisonment in the com-
mon jail of the county, where the offence may have been commit-
ted. P. it. p. 101,102.
FEME COYERT.
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 receive the punishment which otherwise
would have been inflicted on the wife, if she had been found guil-
ty. Provided, it appears from all the facts and circumstances of
the case, that violent threats, command and coercion were used.
P. C. p, 93.
Fences* See Malicious Mischief.
U6 FORGERY AND COUNTERFEITING
FORGERY AND COUNTERFEITING,
If any person or persons shall falsely make, forge, alter or con
terfeit, or cause or procure to be falsely made, forged, altered, 01
counterfeited, or willingly act or assist in falsely making, forging,
or counterfeiting any audited certificate, or other certificate, issued
or purporting to have been issued by the auditor general, or other
officer authorised to issue the same ; or any order or warrant, is-
sued or purporting to have been issued by the governor, or the
president of the senate, or speaker of the house of representatives
of the general assembly of this state, or by any officer of the gov-
ernment or authorised person, on the treasury of said state, for any
money or other thing, or any land warrant for land, issued or pur-
porting to have been issued by the justices of land court, or by any
other tribunal officers or person authorised to do so within this
state j or any certificate, draft, warrant or order, from any of the
public officers of this state, issued or purporting to have been issu-
ed, or by virtue of an act or resolution of the legislature or gener-
al assembly of this state ; or any dertificate, draft or order, or war-
rant, issued or purporting to have been issued by any ^ourt, of-
ficer or person, authorised to draw on the treasury of this state, or
for public money wherever the same may be deposited; or any
deed, will, testament, bond, writing obligatory, bill of exchange,
promissory note, or order for money or goods, with intent to de-
fraud the said state, public officer or officers, courts, or any per-
sons authorised, or any person or persons whatever; or shall utter
or publish, as true, any false, forged, altered or counterfeited au-
dited certificate, governor's, president's, speaker's, or other pub-
lie officer, court's, or person's duly authorised, certificate, draft,
warrant, or order, so as aforesdid issued, or purporting to have
been issued, or any deed, will, testament, bond, writing obligato-
ry, bill of exchange, promissory note, or order for money, or goods
or acquittance and receipt for money, or goods, or any indorse
ment or assignment of any bond, writing obligatory, bill of ex-
change, promissory note, or order, for money or goods, with in-
tent to defraud the said state, public officers, courts, or persons au-
thorized as aforesaid; or any person or persons whatsoever, know-
ing the same to be so falsely made, forged, altered, or counterfeit-
ed ; every such person or persons, so offending, and being thereof
FORGERY AND COUNTERFEITING. 17?
sonvitted, shall be punished by imprisonment in the penitentiary,
at hard labour, or in solitude, for any period of time not less than
two years, nor longer than ten years.
If any person shall falsely and fraudulently make, forge, or coun*
terfeit, or be concerned in the false and fraudulent making, forg-
ing and counterfeiting of any gold, silver, or copper coiii, which
now is, or shall be passing, or in circulation within this state ;
or shall falsely and fraudulently make, or be concerned in the
false and fraudulent making of any base coin, of the likeness or
similitude of any gold, silver, or copper coin, which now is, or
shall be passing, or in circulation within this state ; or shall false-
ly and fraudulently utter, publish, pay, or tender in payment, any
such counterfeit and forged coin, of gold, silver, or copper, or any
base coin, knowing the same to be forged and counterfeited or
base, or shall aid or abet, counsel or command the perpetration
of either of the said crimes ; such person shall, on conviction, be
punished by a fnp not exceeding five hundred dollars ; and also
undergo an imprisonment at hard labour, or in solitude in the
penitentiary, for a period of time not exceeding ten years.
If any person shall falsely and fraudulently make, sign, or print,
or be concerned in the false and fraudulent making, signing, or
printing, any counterfeit note, or bill of a bank of this state, or the
note or bill of any incorporated bank of this state, or the note or
bill of any incorporated bank, whose notes or bills are in circula-
tion in this state ; or falsely and fraudulently cause or procure the
same to be done ; such person, on conviction, shall be punished by
imprisonment in the penitentiary at hard labour, or in solitude, for
any period not exceeding ten years.
If any person shall falsely and fraudulently make, sign, or print,
or be concerned in the false and fraudulent making, signing, or
printing of any check, or draft upon any bank of this state, or
bank, as aforesaid; or falsely or fraudulently cause or procure the
same to be done ; such person, on conviction, shall suffer the same
punishment as is mentioned for the crime, in the preceding sec-
tion.
If any person shall falsely and fraudulently alter, or be con-
cerned in the false and fraudulent alteration of any genuine note,
bill, check or draft as aforesaid ; or, falsely and fraudulently
cause or procure the same to be done ; the person so offending,
shall suffer the same punishment, as is prescribed for the crime of
25
irs FORGERY AND COUNTERFEITING.
falsely and fraudulently making, signing, and printing any bank
bill or note, in the forty-ninth section.
If any person shall falsely and fraudulently pass, pay, or tender
in payment, utter, or publish, any false, forged, counterfeit, or al-
tered note, bill, check, or draft, as aforesaid, knowing the same to
have been falsely and fraudulently forged, counterfeited, or alter-
ed ; the person so offending, shall, upon conviction, be punished by
imprisonment at hard labour, or in solitude, in the penitentiary, for
a time not exceeding ten years.
If any person shall have in his or her possession, any such false,
forged, counterfeit, or altered note or notes, bill or bills, draft or
drafts, check or checks, with intention fraudulently to pass the
same ; such person, on conviction, shall be punished by an impris-
onment at hard labour in the penitentiary, for any period of time
not exceeding fifteen years.
If any person shall have in his or her possession, any bank paper,
types, plates, or machinery, for the purpose of falsely or fraudu-
lentlv forging and counterfeiting any notes, bills, checks, or drafts
as aforesaid ; the person so offending, shall be punished by impris^
onment at hard labour in the penitentiary, for any period of time
not exceedihg ten years.
If any person shall falsely and fraudulently make, forge, counter-
feit, or alter any note, bill, draft, or check, of, or on any person,
body corporate, company, or mercantile house, or firm, or purport-
iitg so to be, or fraudulently and falsely utter, publish, pass, pay, or
tender the same in payment, or demand payment of the same,
knowing the said bill, note, draft, or check, to be forged and coun-
terfeit, or falsely or fraudulently altered ; such person so offending,
shall be punished by imprisonment in the penitentiary at hard
labour, or in solitude, for any period of time not exceeding ten
years.
If any person shall fraudulently make, sign, or alter, or be con-
cerned in the fraudulent making, signing, or altering any other
writing, with intent to defraud any person or persons, or body cor-
porate, or shall fraudulently cause or procure the same to be done;
the person or persons, so offending, shall, on conviction, be pun-
ished by imprisonment at hard labour in the penitentiary, for any
period of time not exceeding five years.
If any person shall falsely and fraudulently forge or counterfeit,
or falsely be concerned in the forging and counterfeiting the great
seal of the state, or any seal used for government purposes, the
FORGERY AND COUNTERFEITING. 179
public and common seal of any court, office, county, or a corpora-
tion, or any other seal authorised by law, or shall falsely and
fraudulently cause or procure the same to be forged and counter-
feited, or shall falsely, fraudulently, and knowingly, impress, or
cause to be impressed, any instrument whatever, whether the same
be written or printed, or partly written and partly printed, with
such forged and counterfeit seal, or shall falsely, fraudulently and
knowingly annex or affix, or cause to be annexed or affixed to any
^uch instrument, such forged and counterfeit seal, or shall falsely
and fraudulently utter or publish any instrument or writing what-
ever, impressed with such forged and counterfeit seal, knowing
the same to be forged and counterfeit; the person so offending,
shall be punished by imprisonment in the penitentiary at hard la-
bour, or in solitude, for any period of time not exceeding ten
years.
Any person who shall draw or make a bill of exchange or prom-
issory note, or indorse or accept the same, in a fictitious name, shall
be guilty of forgery ; and, on conviction, be punished by impris-
onment at hard labour, for any period of time tiot exceeding five
years.
If any person shall put his own name to any instrument, repre-
senting himself to be a different person of that name ; such per-
son shall be guilty of forgery, and, upon conviction, shall be pun-
jshed by imprisonment in the penitentiary at hard labour, or in
solitude, for any period of time not exceeding seven years.
If any person shall designedly, by colour of any counterfeit let-
ter or writing, made in any other person's name, or fictitious name,
obtain from any person, money, goods, chattels, or other valuable
things, with intent to defraud any person, mercantile house, or
body corporate, of the same j the person so offending, shall be
punished by imprisonment in the penitentiary at hard labour, or
in solitude, for any period of time not exceeding five years. P.
C. p. Ill, 112, 113, 114, 115.
fornication, See Vice and Immorality ^
Fraud, See Cheat.
free negroes
FREE NEGROES.
If any person or persons whatsoever, on behalf of any negro
Indian, mulatto, or mustizoe, do apply to the chief justice or jus
tices of his majesty's general court by petition, either during the
sitting of the said court, or before the chief justice, or any of the
justices of the same court, at any time in the vacation ; the said
chief justice, or any of the said justices, shall be, and he and they
is and are hereby empowered to admit any such person, so ap-
plying, to be guardian for any negro, Indian, mulatto, or musti-
zoe, claiming his or her freedom, and such guardian shall be ena-
bled, 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 possession of any such
negro, Indian, mulatto, or mustizoe ; and the defendant or defend-
ants 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 fourid, judgment shall be given
according to the very right of the cause, without having any re-
gard to any defect in the proceedings, either in form or substance;
and if judgment shall be given for the plaintiff,'a special entry
shall be made ; and the jury shall assess damages which the plain-
tiff's -ward hath sustained, and the court shall give judgmept and
award execution against the defendant, for such damages with full
costs of suit; but in case judgment shall be given for the defend-
ant, the said court is hereby fully empowered to inflict such cor-
poral punishment, not extending to life or limb, on the ward of
the plaintiff, as they in their discretion shall think fit: Provided
(dways, That if any action or suit to be brought in pursuance of
the direction of this act, the burthen of the proof shall lie on the
plaintiff, and it shall always be presumed that every negro, In-
dian, mulatto, or mustizoe, (except as before excepted,) is a slave,
unless the contrary can be made appear.
In every action or suit to be brought by any such guardian as
aforesaid, appointed pursuant to the direction of this act, the de-
fendant shall enter into a recognizance, with one or more sufficient
sureties, to the plaintiff, in such sum as the said general court shall
direct, with the condition, that he shall produce the ward of the
FREE NEGROES.
181
plaintiff at all times when required by the court, unless such de-
fendant shall prove upon oath to the satisfaction of the said court,
his inability to produce such ward, and that whilst such action or
suit shall be depending and undetermined, the ward of the plain-
tiff shall not be abused or misused. M. & C. Dig. p. 426.
The justices of the peace with any three freeholders of the dis-
trict, 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
citizens or farmers : Provided, such free person or persons of co-
lour have no guardian.
The respective masters to whom such servants may be indent-
«d, shall find them sufficient clothing, to protect him or them from
the inclemency of the weather, and sufficient board and lodging.
.Where a complaint is made to the justices of the district, where
such indented servant may reside, of any ill usage by the said
master, that then, and in that case, an investigation shall be had
before said justices; and on sufficient evidence being adduced,
the said bounden servant shall be released from such master and
placed again to service, to another person of the same trade or
farming. Clay. Dig. p. 462, 463.
All free persons of colour (native Indians excepted) who shall
arrive in this state, shall within ten days after his or her arrival
therein, (except in a county in which there is a sea-port town, where
two days shall be allowed and no more,) register his or her name
with the clerk of the superior court of the county in which he or she
shall have arrived, in a book to be kept by the clerk for that pur-
pose ; and shall at the same time declare to the said clerk, his or
her occupation, or calling, the place of his or her residence and
birth, the place from whence he or she shall last have come, the
object for which he or she shall have come into this state, and the
name of the person or persons in whose employment or service he
or she may be engaged at the time of his or her arrival; all which
shall be registered in the aforesaid book by the said clerk*.
If any free person of colour coming into this state, shall neglect
or refuse to comply with the aforesaid provisions of this act, (na-
tive Indians excepted,) he or she so neglecting or refusing, shall
* By the act of 1818, no free persons of colour can now come into this state
to reside-
182
free negroes.
forfeit and pay for every such neglect or refusal, the sum of thirty
dollars, to be collected before any justice of the peace of the county,
on the information of one or more competent and credible witnesses,
which sum when collected shall be paid, one half to the informer,
and the balance to the justices of the inferior court, for county
purposes.
When information shall be given to any justice of the peace,
stating, that a free person of colour had come into this state, and
had not complied with the aforesaid provisions of this act; it shall
be the duty of such justice to issue his warrant, and cause such
free person of colour to be apprehended and brought before him,
and shall thereupon investigate the case in a summary manner.
And upon conviction of the charge, the fine aforesaid shall be im-
posed, and if not immediately paid, together with the costs of
prosecution, the said justice shall cause such free person of colour
to be committed to the common jail of the county, there to remain
without bail or mainprize, until the said fine and costs be paid,
or until he or she be otherwise discharged, according to the pro?,
visions of this act.
If any free person of colour shall be committed to prison under
the authority of the foregoing provisions of this act, and shall re-
main in confinement for the space of six months, without having
paid the said fine and costs, and the costs of his or her imprison-
ment; it shall be lawful for the said jailor, and he is hereby re-
quired to hire out at public outcry, the said free person of colour,
for such a length of time, as shall yield a sum of money sufficient
to extinguish and discharge the said fine and costs, with the costs
of imprisonment and costs of hire j Provided, that thirty days pre-
vious notice of the time and place of sale be given in one of the
gazettes of this state, and at the court house of the county.
When any free person of colour shall have arrived in this state,
and shall have registered his name in manner aforesaid; he or
6he, at the time of such Registry, shall pay to the clerk before whom
the same is made a tax of twenty dollars, together with the sum
of one dollar as a compensation to the said clerk, for making such
registry ; which tax shall be forthwith paid into the hands of the
tax collector for the use of the state. Provided nevertheless, that
the said tax shall not be exacted or received from any free person
of colour who shall be a resident or inhabitant of this state, who
shall have gone abrqad with an intention of returning; Provided,
FREE NEGROES.
that such term of absence shall not have exceeded the space of six
months.
If any free person of colour arriving in this state, and comply-
ing with the provisions contained in the first section of this act,
shall refuse or neglect to pay to the said clerk the tax aforesaid,
he shall be proceeded against in the manner pointed out by the
third and fourth provisions of this act; due proof being first made
of such failure or neglect.
The judge of the superior or the justices of the inferior courts,
of the respective counties of this state, shall, upon the written ap-
plication of any free negro or person of colour, made at any regu-
lar 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, may be appointed his or
her guardian ; ?md 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 is hereby vested with all the powers and au-
thority of guardians, for the management of the persons and es-
tates 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 ; Provided nevertheless, that
the property of such guardian shall in no case be liable for the
acts or debts of his ward.
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 compensa-
tion for the discharge of his duties as guardian, as is allowed the
guardians of infants, by the laws of this state. Clay. Dig. p. 655,
656.
Any person, except the owner, beating, whipping, or wounding
a slave, or person or persons beating, whipping or wounding a
free person of colour, without sufficient cause or provocation being
first given by such slave or free person of colour, may be indicted,
and on conviction, shall be fined or imprisoned, or both, at the
discretion of the court; and the owner of such slave, or the guar-
dian of such free person of colour, may, notwithstanding such
conviction, recover in a civil suit, damages for the injury done to
such slave or free person of colour. P. C. p. 143.
m
FREE NEGROES.
It shall not be lawful for any person or persons to manumit, or
set free any negro slave or slaves, any mulatto, mustizoe or any
other person or persons of colouf 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.
If any person or persons shall, after the passing of this act, set
free any slave or slaves, in any other manner or form than the one
prescribed herein, he shall forfeit for every such offence, two hun-
dred dollars, to be recovered by action of debt or indictment;
the one half of the said sum, to be applied to the use of the coun-
ty 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 manumitted 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.
It shall not be lawful for the clerks of the superior courts, 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 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 thereof; 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. Clay.
Dig. p. 27.
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
prescribed by this act, and the proceeds of all sales directed there-
by, after deducting costs, be appropriated, one half to the use of
the person suing or prosecuting for the same, and the other half
to the use of the county in which the offence is committed; ex-
cept in the city of Savannah, where the half of such penalties here-
by appropriated to the use of the county, shall be appropriated and
paid over to the use of that corporation.
The third of the said three sections, herein before referred to,
shall be construed to extend to inhibit the recording only of so
free negroes.
185
ftiuch of any instrument (as is therein described) as shall relate to
the manumitting or setting free of any slave or slaves.
From and after the passing of this act, 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 per-
son 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 hereinafter 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 award-
ing such sentence j and the proceeds of such sales, shall be ap-
propriated in the manner provided for the appropriation of penal-
ties recovered under this act: Provided, that any person or per-
sons 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 pre-
scribed, 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 j and
provided moreover, that any articled seaman or apprentice as afore-
said, who may be found within the limits of this state, after the
expiration of twenty days from the departure 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.
All and every will and testament, deed, whether by way of
trust, or otherwise, contract, agreement, or stipulation, or other
instrument in writing, or by parol, made and executed for the
purpose of effecting, or endeavouring to effect the manumission of
any slave or slaves, either directly by conferring, or attempting to
confer freedom 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
2 A
180
FREE NEGROES.
to be utterly null and void ; and 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 whatsoever ; shall be,
severally, liable to a penalty not exceeding one thousand dollars,
to be recovered in the manner hereinafter pointed out j and each
and every slave or slaves in whose behalf such will or testament,
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 hereinafter
prescribed, shall be liable to be sold as a slave or slaves by public
outcry ; and the proceeds of such sales shall be appropriated in
the manner prescribed by the first section of this act.
All and every free person or persons of colour, residing or being
Within this state, at the time of the passing of this act, and con-
tinuing or being therein, on the first day of March next, (except
as hSrein before excepted,) shall, on or before that day, and annu-
ally, on or before the first Monday in March, in each and every
succeeding year, while they shall continue within the limits of this
state, make application 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 describ-
ing therein, the names, ages, places of nativity and residence, 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 per-
sons so registered as aforesaid, and for granting a certificate there-
of, which he shall in like manner be bound to do, on or before the
first Monday in May, thereafter, if no person shall appear to
gainsay the same ; and to the intent that all persons concerned or
interested therein, may have due notice thereof; it shall be the
duty of such clerk, forthwith, after the said first Monday in
March, 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
FREE- NEGROES.
•187
no objections are made thereto, on or before the second Monday
in April thereafter; and each and every person desirous of object-
ing thereto, shall file such his objections in the office of such clerk
within the time specified in such notice ; which proceedings 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
hereinafter pointed out j and the said clerk shall grant or withhold
such certificate according to the determination thereof: Provided,
that the expense of such publication, shall be defrayed out of the
county funds, where the moiety of the several penalties prescrib-
ed 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.
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, 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 cer-
tificates in the manner therein prescribed, and who shall be work-
ing 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 mas-
ter or owner of such person 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 hereinafter provi-
ded, 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.
All registered free persons of colour, between the ages of fif-
teen and sixty years, shall be liable to do public work in the cotin-
ties or corporate towns in which they may reside, under such regu-
tions, and on pain of such penalties for non-compliance, as the
justices of the inferior courts of the several counties, and the may-
or 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 alder-
men, intendant and wardens, or commissioners, to call out such
free persons of colour, and employ them in public work within
188
FREE NEGROES.
their respective jurisdictions, for a term not exceeding twenty
days in one year.
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
beneficial interest therein, by any trust, either written or parol, by
any will, testament, or deed, or by any contract, agreement, or
stipulation, 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 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 in-
formation of the same to the escheator, or to the escheator him-
self, if he shall discover the same, and the costs of the inquisi-
tion, 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 equi-
table title therein to such free person or persons of colour, contra-
ry 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 recovered in the manner hereinafter pointed out, and shall
be appropriated in the mode prescribed in the first section of this
act.
All and singular the penalties prescribed by this act, and each
and every proceeding directed herein, except where it is other-
wise specially provided thereby, shall be prosecuted, recovered,
and enforced against all and every white person or persons who
shall become 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
FREE NEGROES.
• 189
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 purpose, which the said justices, or a
majority of •them, are hereby empowered to hold ; and to do all
needful and necessary acts therein, for giving full effect to the
provisions of this act; and the said justices shall in like manner
be authorised to hear and determine all objections, 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 consti-
tutional 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 evi-
dence 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 authorised 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
game shall be read in evidence therein.
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
provisions thereof, as to carry'the same into full and complete ope-
ration, according to the true spirit, intent and meaning thereof, as
declared in the preamble of the same ; and all and every such
courts and judges are hereby invested with full power for such
purposes, and are authorised 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.
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 jus-
tices, or a majority of them, shall proceed immediately to hear
190
GAMING.
and determine thereon, making such record of their proceedings,
as is herein before provided. Act. 1818, p. 127 to 134.—See
Patrols and Slaves.
GAMING.
All contracts founded upon a gaming consideration are, void,
and within the civil jurisdiction of a justice of the peace? when-
ever that fact is made to appear, judgment ought to be given in
favour of the defendant, or against such contract.
If any person shall keep and maintain a common ill-governed
and disorderly house, to the encouragement of idleness, gaming,
drinking or other misbehaviour, to the common disturbance of
the neighbourhood or orderly citizens, he or she shall, on convic-
tion, be sentenced to pay a fine, or be imprisoned at the discretion
of the court.
If any person shall, by himself, servant or other agent, for his
gain or living, keep, have, exercise or maintain a common gaming
house, table or room, or in any house or place occupied by him,
procure or permit any persons to frequent or come together to
play for money, or any other valuable thing, at any game, he or
she, on conviction, shall be sentenced to pay afine, or be impri-
soned at the discretion of the court.
Any person or persons who may be found playing and betting,
©r playing or betting, at any game, with cards, dice, checks, or at
billiards or any other instrument, article or articles, thing or things
whatsoever, heretofore used or which may hereafter be used, for
the purpose of betting upon, or winning or losing money, or any
other thing or things, article or articles of value, or any property,
or any other article or articles, thing or things of value, may be
indicted, and on conviction thereof, shall be fined in a sum not
less than fifty, nor more than five hundred dollars, one half to the
benefit of the informer, and the other half for the use of the county
where the offence may have been committed: Provided, That this
act shall not be construed to extend to horse-racing, shooting with
guns of any description used against an enemy, wrestling, jump-
ing, foot-racing, five playing, pitching with coits or dollars, or any
GAMING.
191
other peaceable and civil athletic exercise of man or men, not
herein particularly enumerated.
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 and inten-
tion of the legislature, as contained in the several sections in this
code relative to gambling.
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 person found
gaming, and to bind them over to the next superior court to be
held in and for the county where such offences may be commit-
ted. P. C. p. 126,127.
If any person or persons shall, by any fraud or shift, circum-
vention, deceit, or unlawful trick or device, or ill-practice what-
ever 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 betting on the sides or hands of such as do or shall play, ob-
tain 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 be sentenced to pay a fine of five times
the value of the money, or other thing or things so won as afore-
said, and also be imprisoned in the common jail of the county, at
the discretion of the court. Ib. p. 130.
Guardian and Ward. See Executors.
Hag-Stealing. See Cattle, &c.
192
HOMICIDE
HOMICIDE.
It may be necessary to give a short history of the law in regard
to homicide, as it stood prior to the adoption of our penal code, in
order that the terms and principles there expressed may be the
better comprehended.
Homicide, in law, signifies the killing of a man by a man, 1
Haw. 66 ; or the killing of one human creature by another.
It is of three kinds, justifiable, excusable, and felonious, the last
kind, is again divided into manslaughter and murder.
Justifiable Homicide.
Justifiable homicide is of divers kinds, first, such as is owing
to some unavoidable necessity, without any will, intention, or de-
sire, and without any inadvertence or negligence in the party kill-
ing, and therefore without any shadow of blame j as for instance,
by virtue of such an office as obliges one in the execution of pub-
lie justice to put a malefactor to death who has forfeited his life
by the laws and verdict of his country. This is an act of necessity,
and even of civil duty, and therefore not only justifiable but com-
mendable where the law requires it. But the law must require it,
otherwise it is not justifiable: therefore wantonly to kill the great-
est of malefactors, a felon or traitor, attainted or out-lawed; de-
liberately, uncompelled, and extrajudicially, is murder. And fur-
ther, if judgment of death be given by a judge not authorised by
lawful commission, and execution is done accordingly, the judge
is guilty of murder. Also, such judgment, when legal, must be
executed by the proper officer, or his appointed deputy, for no one
else is required by law to do it,—which requisition it is that justi-
lies the homicide. If another person doth it of his own head, it
is held to be murder, even though it be the judge himself. It must,
further, be executed pursuant to the sentence of the court. If an
officer beheads one who is condemned to be hanged, or vice versa,
it is murder; for he is merely ministerial, and therefore only jus-
tifiable when he acts under the authority and compulsion of the
law. But if a sheriff changes one kind of death for another, he
HOMICIDE.
193
then acts by his own authority, which extends not to the commis-
sion of homicide ; and besides this license might occasion a very
gross abuse of his power. The governor may indeed remit part
of the sentence ; but this is no change, no introduction of a new
punishment. In some cases, homicide is justifiable rather by the
permission than by the absolute command of the law, either for
the advancement of public justice, which without such indemni-
fication would never be carried on with proper vigour; or in such
instances where it is committed for the prevention of some atro-
cious crime, which cannot otherwise be avoided.
Secondly, homicides committed for the advancement of public
justice, are : 1st, where an officer in the execution of his office,
either in a civil or criminal case, kills a person that assaults and
resists him ; 2dly, if an officer or any private person attempts to
take a man charged with felony, and is resisted, and in the endea-
vour to take him, kills him ; 3dly, in case of a riot or rebellious
assembly, the officers endeavouring to disperse the mob, are justi-
fiable in killing them, at the common law; 4thly, where the prisoners
in a jail, or going to jail, assault the jailer or officer, and he in his
defence kills any of them, it is justifiable for the sake of prevent-
ing an escape. But in all these cases there must be an apparent
necessity on the officer's side, namely, that the party could not be
arrested or apprehended, the riot could not be suppressed, the
prisoners could not be kept in hold, unless such homicide were
committed; otherwise, without such absolute necessity, it is not
justifiable j 5thly, in the next place, such homicide as is commit-
ted for the prevention of any forcible and atrocious crime is jus-
tifiable. If any person attempts a robbery or murder of another,
or attempts to break open a house in the night time, (which ex-
tends also to an attempt to burn it,) and shall be killed in such at-
tempt, the slayer shall be acquitted and discharged. This reaches
not to any crime unaccompanied with force, as picking of pockets,
or to the breaking open of any house in the day time, unless it
carries with it an attempt of robbing also ; for the law will not suf-
fer with impunity any crime to be prevented by death, unless the
same, if committed, would also be punished by death. In these
instances of justifiable homicide, you will observe that the slayer
is in no kind of fault whatsoever, not even in the minutest degree ;
and is, therefore, to be wholly acquitted and discharged with com-
mendation rather than blame. But that is not quite the case in
excusable homicide ; the very name of which imports some fault,
2 B
194
HOMICIDE.
some error, or omission, so trivial however, that the Ian excuv s
it from the guilt of felony, though in strictness it judges it deserv-
ing of some little degree of punishment*.
Excusable Homicide.
Excusable homicide is of two sorts, either per infortunium, by
misadventure, or se defendendo, upon a principle of self-preserva-
tion. First, homicide per infortunium or misadventure, is, where
doing a lawful act, without any intention of hurt, unfortunately
kills another; as where a man is at work with a hatchet, and the
head thereof flies off and kills a stander-by; or where a person
qualified to keep a gun is shooting at a mark, and undesignedly
kills a man ; for the act is lawful, and the effect is merely acciden-
tal. So where a parent is moderately correcting his child, a mas-
ter, his servant or scholar, or an officer punishing a criminal, and
happens to occasion his death, it is only misadventure ; for the
act of correction was lawful. But if he exceeds the bounds of
moderation, either in the manner, the instrument, or the quantity
of punishment, and death ensues, it is manslaughter at least; and
in some case (according to the circumstances) murder. For the
act of immoderate correction is unlawful.
Boxing and sword-playing are unlawful acts ; and if either of
the parties be killed therein, such killing is felony of manslaugh-
ter. Likewise to whip another's horse, whereby he runs over a
child and kills him, is held to be accidental in the rider, for he has
done nothing unlawful; but manslaughter in the person'who whip-
ped him, for the act was a trespass, and at best a piece of idleness
of inevitably dangerous consequences. And in general, if death
ensues in consequence of any idle, dangerous, or unlawful sport,
as shooting or casting stones in a town, or the barbarous diversion
of cock-throwing; in these, and similar cases, the slayer is guilty
of manslaughter, and not misadventure only; for these are un-
lawful acts.
Secondly, homicide in self defence, or se defendendo, upon a sud-
den affray, is also excusable rather than justifiable. This species
of self defence must be distinguished from that just now mention-
* Oar penal code does away the distinction between justifiable and excucabk
homicide.
HOMICIDE.
195
ed, as that is calculated to hinder the perpetration of a capital
crime, which is not only a matter of excuse, but of justification.
But the self defence which we are now speaking of, is that where-
by a man may protect himself from an assault, or the like, by kill-
ing him who assaults him. And this is what the law expresses
by the word chance medley, or (as some rather choose to write it)
chaud medley ; the former of which in its etymology, signifies a
casual affray ; the latter an affray in the heat of blood or passion ;
both of them of pretty much the same import; but the former is
in common speech too often erroneously applied to any manner
of homicide by misadventure. Whereas it appears by the statute
24 Henry 8. c. 5. and our ancient books, that it is properly applied
to such killing as happens in self defence upon a sudden rencoun-
ter. This right of natural defence does not imply a right of at-
tacking ; for instead of attacking one another for injuries past or
impending, men need only have recourse to the proper tribunals
of justice. They cannot therefore legally exercise this right of
preventive defence, but in sudden and violent cases j when certain
and immediate suffering would be the consequence of waiting for
the law. Wherefore to excuse homicide by the idea of self-de-
fence, it must appear that the slayer had no other possible means
of escaping from his assailant.
In some cases this species of homicide (upon chance medley in
self defence) differs but little from manslaughter, which also hap-
pens frequently upon chance medley, in the proper legal sense of
the word. But the true criterion between them seems to be this ;
when both parties are actually combating at the time when the
mortal stroke is given, the slayer is then guilty of manslaughter ;
but if the slayer hath not begun to fight, or having- begun, en-
deavours to decline any further struggle, and afterwards being
closely pressed by his antagonist kills him to avoid his own des-
truction, this is homicide excusable by self defence. For which
reason the law requires that the person who kills another in his
own defence, should have retreated as far as he conveniently or
safely can to avoid the violence of the assault, before he turns upon
his assailant; and that not fictitiously, or in order to watch his
opportunity, but from a real tenderness of shedding his brother's
blood. The party assaulted must therefore fly as far as he con-
veniently can, either by reason of some wall, ditch, or other im-
pediment; or as far as the fierceness of the assault will permit
him j for it niay be so fierce as r\ot to allow him to yield a step
196
HOMICIDE.
without maniiest danger of his life, or enormous bodily harm, and
then in his defence he may kill his assailant instantly. And this
is the doctrine of universal justice as well as of the municipal law
And as the manner of the defence, so is also the time to be
considered. For if the person assaulted does not fall upon the
aggressor till the affray is over, or when he is running away, thi
is revenge and not defence. Neither under the colour of self de-
fence will the law permit a man to screen himself from the guilt of
deliberate murder. For if two persons, A and B, agree to fight a
duel, and A gives the first onset, and B retreats as far as he safely
can and then kills A, this is murder ; because of the previous
malice and concerted design. But if A upon a sudden quarrel
assaults B first, and upon B's returning the assault, A really and
bona fde flies, and being driven to the wall, turns again upon B
and kills him, this may be se defendendo according to some of oui
writers, though others have thought this opinion too favourable,
inasmuch as the necessity to which he is at last reduced, originally
arose from his own fault. Under this excuse of self-defence, the
principal civil and natural relations are comprehended. Therefore
master and servant, parent and child, husband and wife, killing an
assailant in the necessary defence of each other respectively, are
excused; the act of the relation assisting, being construed the
same as the act of the party himself. There is one species of
homicide, se defendendo, where the party slain is equally inno-
cent, as he who occasions his death. And yet this homicide is
also excusable from the great universal principle of self preserva-
tion, which prompts every man to save his own life in preference
to that of another, when one of them must inevitably perish. As
where two persons being shipwrecked, and getting on the same
plank, but finding it not sufficient to save both, one of them thrusts
the other from it, whereby he is drowned. He who thus pre-
serves his own life at the expense of another man's is excusable
through unavoidable necessity, and the principle of self defence ;
since their both remaining on the same weak plank, is a mutual
though innocent attempt upon, and an endangering of each other's
life.
In cases where the death has notoriously happened by misad-
venture, or in self-defence, the judges will usually permit (if not
direct) a general verdict of acquittal.
HOMICIDE.
191
Manslaughter.
Felonious homicide is an act of a very different nature from
the former, being the killing of a human creature of any age or
sex, without justification or excuse. But in this there are also
degrees of guilt which divide the offence into manslaughter and
murder. Manslaughter arises from the sudden heat of the pas-
sions ; murder from the wickedness of the heart.
Manslaughter is the unlawful killing of another without malice,
either express or implied, which may be either voluntarily, upon
a sudden heat; or involuntarily, but in the commission of some
unlawful act. And hence it follows, that in manslaughter there
can be no accessories before the fact, because it must be done
without premeditation.
As to the first and voluntary branch. If upon a sudden quar-
rel two persons fight, and one of them kills the other, this is man-
slaughter. And so it is if they upon such an occasion go out and
fight in a field ; for this is one continued act of passion; and the
law pays that regard to human frailty as not to put a hasty and
deliberate act upon the same footing with regard to guilt. So
also if a man be greatly provoked, as by pulling his nose, or other
great indignity, and immediately kills the aggressor. Though
this is not excusable se defendendo, since there is no absolute ne-
cessity for doing it to preserve himself, yet neither is it murder,
for there is no previous malice; but it is manslaughter.
But in this and every other case of homicide upon provocation,
if there must be a sufficient cooling time for passion to subside
and reason to interpose, and the person so provoked afterwards
kills the other, this is deliberate revenge and not heat of blood,
and accordingly amounts to murder. So, if a man takes another
in the act of adultery with his wife, and kills him directly upon the
spot, it is not absolutely ranked in the class of justifiable homicide,
as in case of a forcible rape, but it is manslaughter. It is however
the lowest degree of manslaughter, and therefore in such a case
the court 'directed the burning in the hand to be gently inflicted,
because there could not be a greater provocation. Manslaugh-
ter therefore on a sudden provocation differs from excusable homi-
cide se defendendo, in this, that in one case there is an apparent
necessity for self-preservation to kill the aggressor; in the other,
no necessity at all, being only a sudden act of revenge.
198
HOMICIDE.
The second branch, or involuntary manslaughter, difiers also
from homicide excusable by misadventure, in this, that misad-
venture always happens in consequence of a lawful act, but this
species of manslaughter in consequence of an unlawful one. As
if two persons play at swords and buckler, and one of them kills
the other j this is manslaughter, because the original act >vas un-
lawful; but it is not murder, for the one had no intent to do the
other any personal mischief. So where a person does an act law-
ful in itself, but in an unlawful manner, and without due caution
and circumspection ; as when a workman flings down a stone or
piece of timber into the street and kills a man. This may be
either misadventure, manslaughter, or murder, according to the
circumstances under which the original act was done. If it were
in a country village where a few persons pass, and he call out to
all people to take care, it is misadventure only. But if it were in
any populous town where people were continually passing, it is
manslaughter, though he gives loud warning ; and murder, if he
knows of their passing and gives no warning at all; for then it is
malice against all mankind. And in general when an involuntary
killing happens in consequence of an unlawful act, it will be either
murder or manslaughter, according to the nature of the act which
occasioned it.
If it be in prosecution of a felonious intent, it will be murder ;
but if no more was intended than a mere trespass, it will onl\
amount to manslaughter.
The crime of manslaughter amounts to felony.
But there is one species of manslaughter which is punished as
murder, the benefit of clergy being taken away from it by statute,
namely, the offence of mortally stabbing another, though done
upon sudden provocation. For by statute 1 Jac. 1. c. 8, when one
thrusts or stabs another, not then having a weapon drawn, or who
hath not then stricken the party stabbing, so that he dies thereof
within six months after, the offender shall not have the benefit of
clergy, though he did it not of malice aforethought. But the be-
nignity of the law hath construed the statute so favourably in be-
half of the citizen, and so strictly when against him, that the
offence of stabbing stands almost upon the same footing as it did
at the common law. Thus (not to repeat the cases before men-
tioned, of stabbing an adultress, &c. which are barely manslaugh-
ter as at common law) in the construction of this statute, it hath
been doubted, whether, if the deceased had struck at all before the
HOMICIDE.
199
mortal blow was given, this takes it out of the statute, though in
the preceding quarrel the stabber had given the first blow. And
it seems to be the better opinion that this is not within the statute.
Also it hath been resolved, that the killing a man by throwing a
hammer or other weapon, is not within the statute ; and whether
a shot with a pistol be so or not, is doubted. But if the party
slain had a cudgel in his hand, or had throat a pot or bottle, or
discharged a pistol at the party stabbing; this is sufficient, having a
weapon drawn on his side, within the words of the statute.
Murder.
Murder is where a homicide is committed under such circum-
stances as makes the killing to be neither justifiable nor excusable,
nor manslaughter. Being neither of these, it is necessarily mur-
der ; and this is enough to say here. But for further satisfaction,
I will give the definition of murder, which is, when a person of
sound memory and discretion unlawfully kills any reasonable
creature in being, and under the public protection, with malice
aforethought, either express or implied.
Malice aforethought, signifies wickedness of the heart, more
than is ordinarily found amongst mankind, or the sign of a dia-
bolical temper and disposition, or the doing the fact under cir-
cumstances which do not admit of any justification, excuse, or
alleviation.
When you wish to know in what class to place a homicide, com-
pare the circumstances thereof with those in justifiable homicide,
excusable homicide, and manslaughter ; and if it agree with none
of the£'-, it is murder.
HOMICIDE AND ITS BRANCHES.
From the Penal Code.
Murder is the killing of a human being in the peace of the
state, with malice aforethought, either express or implied.
Express malice is that deliberate intention, unlawfully to take
away the life of a fellow creature, which is manifested by exter-
nal circumstances capable of proof.
Malice shall be implied wrhere no considerable provocation ap-
pears, and where all the circumstances of the killing shew an
HOMICIDE.
abandoned and malignant heart. The punishment ot murdei
shall be death.
Murder shall be denominated homicide in the first degree.
Manslaughter is homicide in the second degree. Manslaugh-
ter is the killing of a human creature without malice express or
implied, and without any mixture of deliberation whatever. It
must be voluntary, j^pon a sudden heat of passion, or involuntary,
in the commission of an unlawful act, or a lawful act without due
caution and circumspection.
In all cases of voluntary manslaughter, there must be some ac-
tual assault upon the person killing, or an attempt by the person
killed, to commit a serious personal injury on the person killing.
Provocation bywords, threats, menaces, or contemptuous gestures,
shall be in 110 case sufficient to free the person killing from the
guilt and crime of murder. The killing must be the result of
that sudden violent impulse of passion, supposed to be irresisti-
ble ; for if there should appear to have been an interval between
the assault or provocation given, and the homicide, sufficient for
the voice of reason and humanity to be heard, the killing shall
be attributed to deliberate revenge, and punished as murder.
Voluntary manslaughter, shall be punished by confinement, or
labour, or solitude, in the penitentiary, for a term not less than
one year, nor longer than five.
Involuntary manslaughter shall consist in the killing of a hu-
man being, without any intention to do so ; but in the com-
mission of an unlawful act, or a lawful act, which probably might
produce such a consequence in an unlawful manner: Provided al-
-ways, that where such involuntary killing shall happen in the
commission of an unlawful act, which in its consequences natu-
rally tends to destroy the life of a human being, or is commit-
ted in the prosecution of a felonious or riotous intent, the ofience
shall be deemed and adjudged to be murder.
Involuntary manslaughter, in the commission of an unlawful
act, shall be punished by confinement or hard labour, or solitude,
in the penitentiary, for a term not less than six months, and not
longer than three years.
Involuntary manslaughter, in the commission or performance
of a lawful act, where there has not been observed necessary dis-
cretion and caution, shall he punished by confinement, or hard la-
hour, or solitude, in the penitentiary, for a term not less than three
months, and not longer than one year.
HOMICIDE.
201
In all cases of voluntary or involuntary manslaughter, the court
may order the commutation of the punishment in the penitentiary,
for that of confinement in the common jail of the county where
the offence may have been committed j and a fine to be imposed
at the discretion of the court, which fine shall be paid to the clerk
of the inferior court for the use of the poor of the county where
the conviction takes place.
There being no rational distinction between excusable and jus-
tifiable homicide, it shall no longer exist. Justifiable homicide is
the killing of a human being in self defence, or in defence of habi-
tation, property or person, against one who manifestly intends or
endeavours by violence or surprise, to commit a known felony,
such as murder, rape, robbery, burglary and the like, upon either,
or against any persons who manifestly intend and endeavour in a
riotous and tumultuous manner to enter the habitation of another,
for the purpose of assaulting or offering personal violence to any
person dwelling or being therein.
A bare fear of any of those offences, to prevent which, the ho-
micide is alleged to have been committed, shall not be sufficient
to justify the killing; it must appear that the circumstances were;
sufficient to excite the fears of a reasonable man, and that the par-
ty killing really acted under the influence of those fears and not in
the spirit of revenge.
If a person invades or trespasses on the property or habitation
of another, not with an intention to commit a felony; the killing
shall be murder, manslaughter, or justifiable homicide, according to
the circumstances of the case.
If a person kills another in his defence, it must appear that the
danger was so urgent and pressing, that in order to save his own
life, the killing of the other was absolutely necessary 5 and it must
appear also, that the person killed was the assailant, or that the
slayer had really, and in good faith endeavoured to decline any
further struggle before the mortal blow was given.
In no case shall a person justify the killing of another under
the pretence of necessity, unless he were wholly without fault, im>
putable by law, in bringing that necessity upon himself.
Killing a slave in the act of revolt, or when the said slave resists
a legal arrest, shall be justifiable homicide.
In all cases, the killing or maiming a slave or person of colour,
shall be put upon the same footing of criminality as the killing or
maiming a white man or citizen.
2 C
HOMICIDE.
If after persuasion, remonstrance, or other gentle measures, used,
a forcible attack and invasion on the property or habitation of an-
other, cannot be prevented, it shall be justifiable homicide to kill
the person so forcibly attacking and invading on the property or
habitation of another j but it must appear that such killing was ab-
solutely necessary to prevent such attack and invasion, and that a
serious injury was intended or might accrue to the person, proper-
ty or family of the person killing.
All other instances which stand upon the same footing of reason
and justice as those enumerated, shall be justifiable homicide.
The homicide appearing to be justifiable, the person indicted,
shall upon his trial be fully acquitted and discharged.
If any -woman shall endeavour privately, either by herself or
the procurement of others, to conceal the death of any issue of her
body, male or female, which, if it were born alive, would by law
he a bastard, so that it may not come to light, whether it was mur-
dered or not, every such mother, being convicted thereof, shalj
suffer an imprisonment at hard labour, or in solitude, in the peni-
tentiary, for any time not exceeding one year.
If the same indictment charge any -woman with the murder of
her bastard child, as well as with the offence in the preceding sec-
lion, the jury by whom such woman shall be tried, may acquit her
of murder and find her guilty of concealing the death of the bas-
tard, or acquit her of both offences ; but if the said jury shall find
her guilty of the murder, they shall return no verdict upon the
count for the concealment of the death of the bastard ; and if any
person shall counsel, advise or direct such woman to kill the child
she is pregnant, or goes with, and after she is delivered of such
child, she kill it, every such person so advising or directing, shall
be deemed accessory to such murder, and shall have the same pun-
ishment as the principal shall have.
The constrained presumption arising from the concealment of
the death of any child, that the child whose death is concealed,
was therefore murdered by the mother, shall not be Sufficient or
conclusive evidence to convict the person indicted of the murder
of her child, unless probable proof be given that |the child was
born alive, nor unless the circumstances attending it, shall be such
as shall satisfy the minds of the jury, that the mother did wilfully
and maliciously destroy and take away the life of such child.
If any person shall be charged with voluntary or involuntary
manslaughter, happening in consequence of an unlawful act, it may
INDICTMENT.
203
be lawful for the attorney or solicitor general, to waive the felony,
by leave of the court, and proceed against, and charge such per-
son with a misdemeanor; and such person, on conviction of said
misdemeanor, shall be punished by paying a jtne, to be appropri-
ated as the court may direct, not exceeding one thousand dollars,
or be imprisoned in the common jail, or both ; and the attorney or
solicitor general may, without obtaining leave of the court, charge
the felony arid misdemeanor in the same indictment, and the jury
by whom the said person shall be tried, may find said person guil*
ty of either charge. P. Code, p. 95, 96, 9r, 98, & 99.
Horse Stealing4 See Cattle, &c.
INDICTMENT.
I. At Common Law.
II. Under the Penal Code.
I. At Common Lawj
Indictment signifieth in law, an accusation found by an inquest
of twelve or more upon their oath; And as the appeal is ever
the suit t>f the party, so the indictment is always the suit of the
state, and as it were his declaration, and the party who prosecutes
it, is a good witness to prove it: And when such accusation is
found by a grand jury, without any bill brought before them, and
afterwards reduced to a formal indictment, it is called a present-
ment; and when it is found by jurors returned to inquire of that
particular offence only, which is indicted, it is properly called an
inquisition. 1 Inst. 126. 2 Haw. 209.
.An indictment is a plain, brief and certain narrative of an of*
fence committed by any person, and of those necessary circum*
stances that concur to ascertain the fact, and its nature according
to the old rule,
204
INDICTMENT.
quando, ubi, quid, cm/ms, quomodo, j-mzm e.
1. The person, with his name, surname, addition of the
town, country, art, and degree.
2. Quando. The day and year.
3. Ubi. The place, town, and country.
4. Qiiid. The thing taken, the colour, the mark, the price and
value.
5. Cujus. The owner of the thing, and whose it was.
6. Quomodo. The manner of doing and how.
7. §>iiare. The intent which is comprised in the word felonious.
II. Under the Penal Code.
Every indictment or accusation of the grand jury, shall be deem-
ed sufficiently technical and correct, which states 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. P. C. p.
134.
All exceptions which go merely to the form of an indictment,
shall be made before trial, and no motion in arrest of judgment
shall be sustained for any matter not affecting the real merits of
the offence charged in such indictment. Ib.
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 opin-
ion that the prosecution was unfounded and malicious, or if the
petit jury, upon returning a verdict of " not guilty," shall express
a similar opinion. A person against whom a bill of indictment
shall be preferred, and not found by the grand jury, or who shall
be acquitted by the petit jury of the offence charged against him,
shall not be liable to the payment of the costs; and in all such
cases, as well as where persons liable by law for the payment of
costs shall be unable to pay the same, it shall and may be lawful
for the officers severally entitled to such costs, to present all ac-
counts therefor to the judge of the court, in which the said prose-
cutions were depending; which account being examined and al-
lowed him, it shall and may be lawful for the said judge, by an or-
der of said court, to authorise and direct the sheriff to retain foi
INDICTMENT.
205
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 monies by him received for fines inflicted by the said court,
since the passing of this act. Ib. 135.
It shall be the duty of the attorney or solicitor general to prose-
cute on presentments of grand juries, where such presentment or
presentments is or are for offences indictable by law, and the in-
dorsement 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 in-
dictment. Ib.
Every person charged with a felony, or any offence which may
subject him, on conviction, to an imprisonment in the penitentiary
for the term of three years, shall be furnished previous to his ar-
raignment with a copy of the indictment, and a list of the witness-
es who gave testimony before the grand jury. Ib. 136.
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 the aforesaid witnesses«, Ib.
The plea of " not guilty," recorded on the indictment for any of-
fence, which does not require the formality of an arraignment,
shall be deemed sufficient to constitute the issue between the pris-
oner and the people of this state ; and if the attorney or solicitor
general, or other person prosecuting in behalf of this state, shall
neglect to have said plea recorded, it may at any time, during or
after the trial, be ordered to be done by the court, and such or-
der shall cure the error or defect. Ib.
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 traverse or postponement of the trial until
the next term of the court ; and any person indicted for an of-
fence not affecting his or her life, and demanding a trial, which
demand shall be placed upon the minutes of the court, shall be
discharged, upon his or her giving bail to appear at the next
court; and if not tried at said court, shall be absolutely discharg-
ed and acquitted of the offence contained in the indictment: Pro-
vided9 that at both terms, juries were empannelled and able to try
such offender;,and every person against whom a bill of indict-
ment has been found, who appears and demands his or her trial
INFANTS.
at the first term after such bill shall have been found, apd the of-
ficer prosecuting in behalf of the people cannot assign some legal
or satisfactory reason for wishing a postponement of the trial, such
as the absence of a material witness or witnesses, and a well
grounded expectation of being able to proceed on said trial at the
next term—then the person so indicted and demanding his or her
trial, shall be absolutely discharged and acquitted of the offence
contained and charged in the indictment; and in no case shall a
nole prosequi be entered on any bill of indictment, after»th^case
has been submitted to the jury* lb. 1Z7. i
Where a person shall be indicted and convicted on more than
one indictment, and the sentences are, iihprisonment in the p^ni-
tentiary, such sentences shall be severally executed after the ex-
piration of each other ; but with as great a mitigation, and with
as much leniency as the nature of the offences, and the principles
of justice shall require. Ib. 138.
The form of every indictment or accusation shall be as follows;
Georgia, The grand jurors, sworn, chosen and selected
Count]}. ^ for the county of — , to wit: in the name
and behalf of the citizens of Georgia, charge and accuse A. B. of
—■ ■ , with the offence of , for that the said A. B. (here
state the offence, 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 ac-
cuse and charge A. B. with having committed (here state the of-
fence as before directed) for that, &c." Ib. 134.
INFANTS.
By an infant, or minor, is meant any one who is under the age
of twenty-one years.
An infant under the age of nine years, whose tender age ren-
ders it improbable that he or she should be impressed with a pro-
per sense of moral obligation, or of sufficient capacity deliberately
INFANTS.
to have committed the offence, shall not be considered or found
guilty of any crime or misdemeanor. P. C. p. 92.
The law does in some cases privilege such a one as to common
misdemeanors, so as to escape fine, imprisonment, and the lite,
and particularly in cases of omission; for not having the com-
mand of his fortune, he wants the capacity to do those things
which the law requires. But where there is any notorious breach
of the peace, as riot, battery, or the like, (which infants when full
grown are at least as liable as others to commit) for these, an in-
fant above the age of fourteen, is equally liable to suffer as a per-
son of the full age of twenty-one.
Under seven years, an infant cannot be guilty of felony; but
at eight years old, he may, if capable of guile. Under fourteen,
he shall be deemed incapable of guile, until it appear that he was
capable, and could discern between good and evil; and then he
may be convicted and suffer death j as if after killing his com-
panion, he hide himself or the body, or as if in the case of burning
a house, it appears he had malice, revenge and cunning. But in
all such,cases, the evidence of malice, which is to supply age, or of
a capacity to discern between good and evil, should be strong and
clear beyond all doubt or contradiction.
With regard to civil cases, nn infant cannot be sued without
joining the name of his guardian; but he may sue by his guar-
dian or next friend who is not his guardian, and may be any per-
son who will undertake his cause j and is sometimes made use of
in suits against a guardian. Generally speaking, he cannot alien
his lands, nor do any legal act, nor make a deed or writing under
seal, nor indeed any manner of contract that will bind him, but
this is subject to some1 exceptions, for he may purchase lands, but
the purchase is incomplete, for when he comes of age he may ei-
ther 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 completed 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,
apparel, physic, and such other necessaries, and likewise for his
good teaching and instruction, whereby he may profit himself af-
terwards. But if he bind himself in a bond with a penalty, for
the payment of any of these necessaries, 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
208
INSOLVENT DEBTORS.
wasted it. If he is an executor, he may give an acquittance on
payment, not without payment. No laches or lack of diligence or
negligence can be imputed to him during his infancy.
A male at fourteen and a female at twelve, may contract mar-
riage. At seventeen an infant may be an executor. And at
eighteen he may dispose of his chattels by will.
INSOLVENT DEBTORS.
The person of a debtor, where there is not a strong presumption
of fraud, shall not be detained in prison after delivering up bona
fide all his estate real and personal for the use of his creditors, in
such manner as shall be hereafter regulated by law. Const. 7 sec.
4 art. M. & C. p. 30.
It shall and may be lawful for the judges of the superior or
justices of the inferior courts, and they are hereby required, on
the petition 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 is-
sued from the superior court, or other court of inferior jurisdic-
tion, 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, entitled " An act
to carry into effect the seventh section of the fourth article of the
ConstitutionProvided, that the notice required by the said act
to be given to the creditors of such debtor, if the same be by no-
tice served upon the said creditors or their attornies, shall be
given at least thirty days previously to the time appointed for
bringing up such debtor. And provided also, that if upon bring-
ing up such debtor, any one or more of the creditors shall sug-
gest to the said judge or justice, that the said debtor is not fairly
INSOLVENT DEBTORS. 209
insolvent, or that he has been guilty of any fraudulent practices,
that then and in that case, it shall be the duty of the said judge or
j ustices, forthwith, to cause an issue to be made up between the
said creditor or creditors and the said debtor, fraud or not
fraud.
Upon such issue being made up, the said 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 court-house, at a
particular day to be specified for that purpose, to try the said is-
sue ; and if the jury shall find that there has been fraud on the
part pf 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
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. Clay. Dig. p. 549, 550.
Any debtor or debtors charged in execution or imprisoned for
any sum or sums of money, shall and may petition one of the
judges of the superior courts, if the execution or capias ad satis-
faciendum 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 credi-
tors j and upon such petition, 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 several creditors at whose suit he, she
or they are charged or imprisoned 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 purpose, 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 j and if
no attorney, where any of the creditors reside out of the state, the
notices aforesaid are to be served on their attorney, and if no at-
torney, then to be published in one of the gazettes of Augusta or
Savannah, at least two months before the day appointed for such
2 D
INSOLVENT DEBTORS.
appearance, and upon such, if any of the creditors summoned re-
fuse or neglect to appear, upon affidavit of the due service of such
rule or order, the court shall, in a summary way, examine the mat-
ter of such petition, and the suggestions of fraud, if any, and if
upon such examination it shall appear to the court, that the debtor
is really and bona jide insolvent, then such person shall deliver to
the court a schedule of all his real and personal estate, credits or
effects, and shall take and subscribe the following oath, viz.
" 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 con-
tracts whatsoever, my wearing apparel, bedding for myself and
family, and the working tools or implements of my trade or
calling, together with the necessary equipments for a militia sol-
dier, excepted, other than are contained in the schedule now de-
livered, and that I have not, directly or indirectly, since my im-
prisonment, 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.
And upon the said debtor having taken and subscribed the
aforesaid oath, the court shall order the sheriff or jailer to dis-
charge the said debtor from confinement on account of the matter
contained in his petition, and such order shall be a sufficient war-
rant to the sheriff, jailer, or keeper of such debtor, to discharge
the said debtor, if detained for the causes 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 sheriff, jailer, or keeper of the said debtor, be
liable to any action of escape, or other suit or information upon
that account: Provided, That no person shall be permitted or en-
titled to take any benefit or advantage 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, br at different times the
amount of 300 dollars.
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
INSOLVENT DEBTORS.
211
debtor or debtors, to any creditor so notified a% 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
entered 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 dis-
charge, shall forfeit and pay the slim 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: Pro-
mded\ 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 debtors.
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
aforesaid, 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 in-
eluded in the schedule as aforesaid.
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
regulating sheriff's sales within this state ; and if any part of the
property so given up shall consist of judgments, bonds, notes, con-
tracts, 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 ma-
jority 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, together with the money which may be in the
hands of the sheriff, arising from the sale of any property of such
debtor or debtors, shall be subject to the further order of, and af-
ter the payment of the costs and charges, shall be distributed by
the said court agreeably to the laws within this state for the pay^
ment of judgments and executions.
The said trustee or trustees, shall proceed without delay to col-
lect all the debts, &c. so transferred as aforesaid, either by suit or
otherwise, which, when collected, shall be paid by the said trustee
212 INTEREST.
or trustees into the#derk's office of the said court, and the said trus-
tee or trustees shall have and receive five per centum on all mo-
neys so collected by him or them, as a compensation for his or their
trouble and 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 mo-
ney, as sheriffs are liable to by the laws of this state.
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. Clay. Dig. p. 21, 22, 23, 24.
In all cases where debtors shall be committed under any execu-
tion 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 maintenance to be paid weekly; and in failure thereof, the de-
fendant 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
seamen for their maintenance and jail fees. Clay. Dig. p. 148,
INTEREST.
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 de-
mands, bear interest from the time they become due, unless it be
otherwise expressed in the said writings, or understood by the par-
ties. And if they express to be payable on demand, interest ac-
crues only from an actual demand made by the creditor, his 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
jlate, without demand.
INTERROGATORIES.
All securities for the payment or delivery of specific articles,
bear interest as monied contracts. The articles to be rated at the
time they become due.
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 instru-
ment, 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 discharged, until the interest shall have been first
extinguished : Provided nevertheless, That in all cases where the
payment made, shall not be sufficient to discharge all the interest
due at the time of the payment, no interest shall at any future
payment be calculated on the balance of interest which was left
unpaid.
In all cases where judgments may hereafter he- ohtained, 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. Act.
1814, p. 33.
INTERROGATORIES.
Where any witness resides out of the state, or out of any coun-
ty 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
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 witnesses on such interrogatories as the
parties may exhibit; and such examination shall be read at the
trial, on motion of either party. M. & C. 299.
Where any witness resides out of the state or out of the county,
or where any witness resides within the same, and being a sea-
man, patroon of a boat, stage driver, mail carrier, aged or infirm
' 514
INTERROGATORIES.
person, 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
attorney, 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 examine all and every such witness or witnesses
on such interrogatories as the parties may exhibit, and such ex-
aminatlon shall be read at the trial on the motion of either party j
any rule, order or law to the contrary notwithstanding. Act. 1811.
p. 184.
If the testimony of any persons residing within the said state,
shall be required in any suit ^pending in any court of record in
either of the United States,- and he, she, or they, shall refuse to
appear before commissioners appointed to take his or her exami-J
nation, under 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 testimony is required may re-
side j and upon producing before him such commission, and his
being satisfied of its regularity j 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, her, 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 an-
nexed to the said commission, and then exhibited to him: Pro-
mded, That he shall not be required to attend such examination,
and give answers 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 j
and upon due service of the said subpoena upon such person or per-
sons, the same shall be returned to the commissioners on or before
the time appointed for the examination, and the service of such
subpoena proven by the return of the proper officer j and on the
INTERROGATORIES,
215
refusal or neglect of such person or persons to comply with its
mandate endorsed on or annexed to the said subpoena, and return-
ed to the superior or inferior court, as the case may require, of the
county in which such person or persons reside, he, she, or they,
shall be subject for such neglect or refusal, to all the pains and
penalties, to which such person or persons would have been sub-
ject for a similar default, in cases pending in the courts of this
state. M. & C, 212.
Directions for executing and returning Interrogatories, to be used
in this State.
You will first fill up the blank left for that purpose in the dedi-
mus (or commission) with the names (plainly written) of the com-
missioners present, who mufet 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, respecta-
ble 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 sufficiently large ; But they must not be in the hand writing of
any of the parties, or of any attorney engaged in -the case, nor
must they be previously written by any such person, and then
transcribed.
You first state the case exactly as it is stated at the head of the
interrogatories ; not omitting to put down (besides the names of
the parties) the title of the action, (as trover, ejectment, or what-
ever 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 honour-
County. ^ able 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 com-
mission annexed ; deposeth and answereth, as follows:
To the first interrogatory he answers,
* Except the interrogatories are to be used in a magistrate's court.
INTERROGATORIES*
To the second, he answers. And so on of the rest. A. Hi
Answered, subscribed and sworn to before us this day of
C. D. com. (seal)
E. F» com. (seal)
G. H. com. (seal)
The answers must then be annexed to the commission, and all
sealed up together in one packet; and it is customary, but not in-
"dispensably necessary, to put as many seals as there are officiating
commissioners : and for the name of a commissioner to be written
by himself across each seal. The names of the parties to the ac-
tion should then be written on the back, and the packet directed
to the clerk of the court from which the commission issued.
If the packet is sent by a private hand, the same person who
receives 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 re-
ceived it from the commissioners or one of them, and that it has
been in his possession ever since without being altered pr 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 post-master of the office where
it is received certify on the packet, (taking care to sign his name
officially,) that he received that packet from one of the commis-
sioners; then let the post-master 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 post-master must
follow the same directions as those who receive the packet from
the commissioners.
Where there are several Wit-
nesses.
Sometimes the commission
Cor dedimus) includes several
witnesses, some of the ques-
tions being addressed to one,
and some to another, and
some others to both or all. In
such cases it is best, to have
all the witnesses at hand, that
the examination may be finish*-
ed at one sitting. The cap-
tion may then run in this
form:
[By virtue of a commission
from the honourable the (supe-
rior or inferior) court of
county to us directed,] we have
caused, A. B. J. K. and L. M.
INTERROGATORIES.
217
the persons in the said com-
mission named, to come before
us, and each of them being
duly arid severally sworn, true
Answers to make to such of the
interrogatories to the said com-
mission annexed, as are ad-"
dressed to' himself, they re-
spectively depose and answer
as follows:
The answers of A. B.
To the second interrogatory
he answers.
To the fourth interrogatory
he answers.
The answers off. P.
To the fifth interrogatory he
answers, &c.
The answers of J. K. and L3L
To the sixth interrogatory
they answer, &c.
A. B.
J. K.
L. M.
Answered, subscribed and
sworn to before us, this
day of , 18
C. D. com. (seal)
E. F. com. (seal)
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 examination is completed, all the answers are
to be annexed to the commission sealed up, and returned as be-
fore directed.
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 commis-
sioners, C. D. and E. F. may act in the first instance, and E. F.
and G. H. in the second; provided, one of these two last, has
had the custody of the answers, taken by the two first,
2 E
218
JAIL AND JAILER.
JAIL AND JAILER.
The jail itself is the state's, but the keeping thereof is incidei f
to the office of sheriff, and inseparable from it. 2 Inst. 589. A
jailer in fact, is as much punishable for a misdemeanor as if he
were a rightful jailer. 2 Hawk. 134.
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.
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.
§>uere, whether this is not altered by our insolvent laws.
It seemeth generally in all cases where a mhn is committed to
prison, especially if it be for felony, or upon an execution, or but
for a trespass or otheir offence, every jailer ought to keep such
prisoner in safe and close custody; safe, that he can not escape ;
and close, without conference with others, or intelligence of things
abroad. Dalt. c. 170.
And therefore if the jailer shall licence 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.
And hereupon it is lawful for the jailer to hamper a felon with
irons to prevent hte 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 His-
tory observes, that this liberty even in the case of a felon (much
more in 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 alto-
gether 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
Inst. 381. is express, that by the common law it might not be done.
1 H. H. 601*.
* No jailer shall put any person into irons unless he is confined for a capital
offence, and it is so expressed in the warrant. Clay. Dig. 68.
JAIL AND JAILER.
219
And if a jailer keep the prisoner more strictly than he ought of
right, whereof the prisoner 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 offi-
cer of his, it will be deemed wilful murder in the person guilty
of such duress. 3 Inst. 91. Fost. 321', 322.
If any jailer, by too great a duress of imprisonment, or other
cruel treatment, make or induce a prisoner to become an approver,
or accuse, and give evidence against some other person, or be
guilty of wilful inhumanity or oppression to any prisoner under his
care and custody j such jailer shall be punished by removal from
office, and imprisonment in the penitentiary, at hard labour, or in
solitude, for any time not less than one year nor longer than two
years. P. C.p^ll8.
But if a criminal, endeavouring to break the jail,- assault his
jailer, he may be lawfully killed by him in the affray, 1 Haw. 71*
1H.H. 496. 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 retreat-
ing 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 per-
son 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, should 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.
But forasmuch as the jail is intended, in most cases, for custody
and not for punishment, and confinement itself, especially in such
dismal abodes, as it is to be feared many of the jails are, is sufficient-
ly afflictive and disconsolate ; human nature will plead for those
miserable objects, that their condition be rendered as tolerable as
the case will admit of; particularly with regard to cleanliness,
which is the parent of health ; and wholesome air, which is life
itself. A remarkable effect of want of care in this respect sir Mi-
chael Foster takes notice of in the case of one,Mr. Clarke, who
was brought to his trial at the Old Bailey sessions in 1750. It
220
JAIL AND JAILER.
being a case of great expectations, the court, and all the passages
to it were extremely crowded. The weather also was hotter than is
usual at that time of the year. Many people who were in the court,
were sensibly affected with a very noisome smell. And it appear-
ed soon afterwards, upon an enquiry ordered by the court of al-
dermen, that the whole prison of Newgate, and all the passages
leading thence into the court, were in a very filthy condition, and
had been long so. What made these circumstances to be at all
attended to, was, that within a week or ten days at most after the
sessions, many people who were present at Mr. darkens trial were
seized with a fever of the malignant kind, and few who were
seized recovered. The symptoms were much alike in all the pa-
tients ; and in less than six weeks the distemper entirely ceased.
At the time this disaster happened, there was no sickness in the
jail, more than is common in such places. Which circumstance,
that distinguisheth this from most of the cases of the like kind
which we have heard of, suggests a very proper caution, not to
presume too far upon the health of the jail, barely because the jail
fever is not among the prisoners. For without doubt, if the
points of cleanliness and free air have been greatly neglected, the
putrid effluvia which the prisoners bring with them in their clothes
or otherwise, especially where too many are brought into a crowd-
ed court together, may have fatal effects upon people who are ac-
customed to breathe better air; though the poor wretches, who
are in some measure habituated to the fumes of a prison, may not
always be sensible of any great inconvenience from them. The
persons of chief note who were in the court at this time, and died
of the fever, were sir Samuel Pennant, lord mayor for that year,
sir Thomas Abney, one of the justices of the common pleas,
Charles Clark, esquire, one of the exchequer, and sir David Lam-
bert, one of the aldermen of London. Of less note, a gentleman
of the bar, two or three students, one of the under sheriffs, an
officer of lord chief justice Lee, who attended his lordship in
court at that time, several of the jury on Middlesex side, and
about forty other persons whom business or curiosity had brought
thither. Fost. T4.
The jailer being an officer whose attendance is always necessa-
ry on the court, he should always be careful to certify to the
courts to which the prisoner stands committed, the mittimus, or
wan ant of commitment, in order that the person accused may re-
ceive his trial, and if found not guilty may be discharged.
JAIL AND JAILER. 221
And if a jailer detains a prisoner in jail after his acquittal, un-
less it be for his fees (not for meat, drink, or lodging), this is an
unlawful imprisonment. 2 Inst. 53.
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.
If any sheriff, coroner, keeper of a jail, keeper, or other officer,
or person employed in the penitentiary, having any offender guilty,
or accused of, or confined for any crime in his custody, shall vol-
untarily permit or suffer such offender to escape and go at large,
every such sheriff, coroner, keeper of a jail, keeper, officer, or
other person employed in the penitentiary, constable, or other offi-
cer or person, so offending, shall, on conviction, undergo an im-
prisonment in the penitentiary, at hard labour, or in solitude, for
any time not less than five years, nor exceeding seven; and shall
moreover, if a public officer, be dismissed from office.
If any sheriff, coroner, keeper of a jail, or other officer, shall
wilfully refuse to receive any offender charged with or guilty of
an indictable offence, or committed as a witness on the part of
this state, or having such offender or witness in his custody, shall
voluntarily permit or suffer him or her to escape and go at large,
then every such sheriff, coroner, keeper of a jail, constable, or
other officer or person so offending, shall, on conviction, undergo
an imprisonment in the penitentiary, for a period of time not ex-
ceeding seven years. P. C. p. 120.
But the principal jailer is only fineable for the voluntary es-
cape 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.
But for a negligent escape suffered by his bailiff, the sheriff is
as much liable to answer, as if he had actually suffered it himself;
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.
But it will not be felony if the prisoner be permitted to escape,
when no felony was committed. 2 Inst. 592.
All sheriffs on appointing a keeper of the jail, to require suffi-
cient security of him or them, and such persons appointed, shall,
before he enters on the duties of his or their office, take and sub-
scribe the following oath, before some one of the justices of the
inferior court of said county, to wit: I, A. B. do solemnly swear
222 JUDGMENT.
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. Act. 1811, p. 158. See Prison and Prisoners.
JUDGMENT.
All judgments bind property from their date.
Any verdict or judgment, rule or order of court, which may
have been obtained or entered up, shall be set aside and be of no
effect, if it shall appear that the same was obtained or entered up
in consequence of wilful and corrupt perjury ; and it shall be the
duty of the court in which such verdict, judgment, rule or order
may have been obtained or entered up, to cause the same to be
set aside, upon motion and notice of the adverse party; but it shall
not be lawful for the said court to do so, unless the person charged
with said perjury shall have been thereof duly convicted, and un-
less it shall appear to the said court, that the verdict, j udgment,
rule, or order could not have been obtained or entered up, without
the evidence of such perjured person; saving always to third per-
sons innocent of such perjury, the right which they may have law-
fully acquired under such verdict, judgment, rule or order, be-
fore the same shall have been actually vacated and set aside. P.
C. p. 116. Amended by act of 1818. 193.
If any person shall acknowledge, or procure to be acknowledged
in any of the courts of this state, any recognizance, bail, or judg-
ment, in the name of any other person, not privy or consenting
thereto ; such person, on conviction, shall be imprisoned in the
penitentiary, at hard labour,- or in solitude, for any period of time
not exceeding three years. Ib. p. 118.
JURORS.
223
JURORS.
Manner of selecting, drawing, summoning, and swearing furors
in Justices Courts.
The method of drawing jurors for the trial of appeals, and all
other cases injustices courts in each district shall be as follows :
The justice or justices residing in each captain's district, in con-
junction with the commanding officers of said district, shall once
in every two years, procure or make out a list of all persons lia-
ble to serve as jurors in the superior courts, who may be resi-
dents 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 depend-
ing before them, which names so drawn shall be entered in a book
by the justice presiding at the drawing thereof, and shall be de-
posited 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 alternately ; Provided\ that no justice shall
presume to draw any jury but on a court day and in public, and
by a person not interested in any suit to be tried by said jury j
and any person, so drawn and summoned by a constable 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 shew 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 fill and complete such jury from the bye-stan-
ders ; provided, there shall not be less than three of the original
pannel 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 cost.
That the oath to be administered to the jury on the trial of ap-
peals, 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
224
JURORS.
and C. D. defendant, and a true verdict give accoidingto equity
and the opinion you entertain of the evidenre pp uj<edto jou,
to the best of your skill and knowledge, without tivciir or af-
fection to either party; provided the case is not withdrawn, so
help you God." Act. 1811. p. 11,12.
Manner of selecting, drawing, summoning and swearing Grand
and Petit furors, in the other Courts.
That the clerks of the superior courts of the respective counties,
shall procure from the tax collector of such county, and furnish to
the court (within two months) a list of persons liable and qualified
to serve as grand and petit jurors, agreeable to the qualifications
hereinafter prescribed ; and all free white male citizens abov e the
age of twenty-one years and under sixty years, are declared to be
qualified and liable to serve as petit jurors for the trial of all civil
causes for recovery of debts or damages, to any amount whatso-
ever j but no person shall be capable to be of a jury for the trial
of treason, felony, breach of the peace, or any other cause of a
criminal nature, or of any estate of freehold, or of the right or
title to any lands or tenements, in any court of record within this
state, who shall not be qualified to vote at elections for members of
the legislature; and if any person not qualified as aforesaid, shall
be returned on any jury, he shall be discharged on the challenge
and proof thereof, of either of the parties to such suit, or on his
own oath of the truth thereof: Provided, that no exception against
any juror, on account of his qualification, shall be allowed after
he is sworn.
No grand jury shall consist of less than eighteen or more than
twenty-three, but twelve may find a bill or make a presentment.
The clerk of the court shall annex a pannel of the jury containing
the names of the persons drawn to serve on the grand inquest, ex-
actly transcribed from the minute book, to the precept for sum-
moning such grand jury, and shall annex another pannel contain-
ing the names ©f the persons drawn as petit jurors for the trial of
civil and criminal cases, exactly transcribed as aforesaid^ to the
precept for summoning the petit jurors, in the mandatory part
of which precept shall be written the words following, viz. " The
several persons named in the pannel hereunto annexed," which
precept with the several pannels annexed as aforesaid, shall be de-
livered by the clerk of the court within three days after the draw-
ing of such juries as aforesaid, to the sheriff of the county or his
deputy.
JURORS.
225
The sheriff or his lawful deputy for the time being, upon the re-
ceipt of any precept for summoning grand or petit jurors, shall
cause the several persons whose names are written in the partnel
thereunto annexed, to be served with a summons, at least ten days
before the sitting of the court, for which they are drawn and em-
pannelled; 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 su-
perior court, at the next superior court to be held at the court
house, 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 civil and criminal causes then
and there depending, as the case may be)which shall be signed
by the sheriff or his lawful deputy for the time being: which sher-
iff or lawful deputy aforesaid, shall make return of all such pre-
cepts, 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, on pain of being
fined by the court.
The clerk of the court shall make due entry in the minute book
of such court of the appearance of all jurors, and shall likewise
enter and make report of the names of all such as shall make de-
fault in appearing; that if any person who shall be drawn, empan-
nelled, summoned and returned to, serve as jurors at any court as
aforesaid, shall neglect or refuse to appear, or after appearance
shall refuse to serve, or shall absent himself without leave of the
court, then and in that case, it shall be lawful for the court to fine
such person, if a petit juror, in a sum not exceeding twenty dollars,
and if a grand juror, in a sum not exceeding forty dollars, unless
such juror shall shew good and sufficient cause of excuse, to be
made on oath before any justice of the peace, and filed in the
clerk's office of such court, within thirty days after opening the
said court, the merits of which excuse shall be determined by the
next succeeding court; and when from challenge or otherwise
there shall not be sufficient number of jurors to determine any ci-
vil or criminal cause, the court may order the sheriff or his deputy,
to- summon by-standers or others qualified as herein before requir-
ed, for the trial of such cause or causes, sufficient to complete the
pannel; and when the sheriff or his deputy are disqualified from
2 F
226
JURORS.
acting in the manner herein expressed, jurors shall be summoned
by the coroner, or such other disinterested person as the court may
appoint.
The oath to be administered to petit jurors in civil cases shall
be in the form folloAving: " You (A. B.) shall well and truly try
the cause depending between the parties at variance, and a true
verdict give according to evidence : So help you God." M. & C.
Dig. p. 303, 304, 305.
It shall be the duty of the justices of the inferior courts of each
county ^together with the sheriff and clerk, or a majority of them,
to convene at the court house of their respective counties on the
first Monday in June next, and biennially on the first Monday in
June thereafter, whose duty it shall be to select from the books of
the receiver of tax returns, for their respective counties, fit and
proper persons to serve as grand jurors j and shall make a list of
persons so selected, and transmit it under their hands to the next
superior court of their respective counties; and it shall be the duty
of the judge then presiding, to cause the clerk of the said supe-
rior court to make out tickets with the names of the persons so
selected, which ticket shall be, put in a box to be provided by the
clerk at the public expense, which said box shall have two apart-
ments, marked number one and two ; and the clerk? of said courts
shall immediately after receiving such lists, fairly enter the same
in a book for that purpose, to be provided at his own expense, dis-
tinguishing in separate columns, the persons liable to serve as grand
jurors, and those for the trial of civil and criminal causes as point-
cd out by law; which said box shall be locked and sealed up by
the judge, and placed in the care of the clerk, and the key in the
care of the sheriff, and no grand jury shall be drawn and impan-
nelled, but in presence of the open court, nor shall any clerk of
the court, or other person having the custody of the jury box,
presume, on any pretence whatever, to open the said jury box,
transpose or alter the names, except it be by the direction of the
judge in open court, attending for the purpose of drawing jurors,
under the penalty of being dealt with in the manner pointed out by
law for malpractice in office.
The said judge, in open court, shall unlock and break the seal,
and cause to be drawn out of the apartment of the said box mark-
ed number one, not less than twenty-three, nor more than thirty-
six names to serve as grand jurors, which names so drawn out,
shall, after an account is tal^en of them, at each time of drawing,
JURORS.
227
be carefully deposited in the other apartment of such bos marked
number two ; and when all the names shall be drawn out of the
apartment number one as aforesaid, they shall then commence
drawing from the apartment number two, and return them into
number one, and so alternately; but no name so deposited shall,
on any pretence whatever, be destroyed, except it is within the
knowledge of the judge that the said juror is either dead, removed
out of the county, or otherwise disqualified by law, or the sheriff
certify the same.
If it should so happen, that there should be a failure of the
court in consequence of the non-attendance of the judge, then, and
in that case, the jurors being summoned, shall stand over to the
next succeeding term in the manner as suitors and witnesses do
in like cases; Provided always, that if the said justices, sheriff,
and clerks aforesaid, shall fail to make such selection on the day
aforesaid, that then it shall be the duty of the said justices, sheriff,
and clerk aforesaid, or a majority of them, to make such selection
at or before the next superior court thereafter, which shall be
held in their respective counties. Clay. Dig. p. 272, 273, 274.
Petit jurors have the same qualifications of grand jurors, and
are selected and drawn in like manner.
The judges of the superior courts, the justices of the inferior
courts, and justices of the peace are hereby authorised, on appli-
cation, to excuse ordained ministers of the' gospel from service on
the juries of their different courts, the application to be made irt
writing or otherwise. Clay. Dig. p. 531.
All special jurors shall be taken from the grand jury list of the
county, and struck, in the presence of the court, in the follow-
ing manner; The clerk shall produce, a list of the grand jurors
present and there empannelled; from which the party, plaintiff,
and defendant, or their attorney, shall strike out one alternately,
until there shall be but twelve jurors left„ who shall forthwith
be empannelled and sworn as special jurors to try the appeal
cause ; and in all cases the appellant shall strike first; and in case
of refusal in either, to strike such special jurors, after due notice
given for such special jury to be empannelled, shall, on behalf of
' such absent party or his attorney, proceed in the same way and
manner as if the party absent or refusing had been present or con-
sented to the same. M. & C. Dig. 280.
The oath to be administered to the special jury in all cases of
divorce, shall be in the words following, viz: " You shall well
228
JURORS.
and truly try the cause depending between A. B. plaintiff and C
D. defendant, and a true verdict give according to equity, and
the opinion you entertain of the evidence produced to you, to
the best of your skill and knowledge, so help you God." Clay.
Dig. p. 630.
The oath to be administered to special jurors (except in cases
of divorce) shall be in the words following, to wit:—" You shall
well and truly try each cause submitted to you during the present
term, and a true verdict give, according to equity, and the opinion
you entertain of the evidence produced to you, to the best of your
skill and knowledge, without favour or affection to either party j
provided, you are not discharged from the consideration of the
case or cases submitted ; so help you God." Act. 1811. p. 83.
The justices of the inferior courts for the several counties in
this state, or a majority of them, together with the sheriff and
clerk of the superior courts, in any of their several counties, be,
and they are hereby authorised and required in all cases where
there shall or may have been a failure of the judges of the supe-
rior courts in drawing grand and petit jurors agreeably to law, to
assemble at the court house in their several counties, at any time
which shall be to them convenient, and proceed to open their jury
boxes, and draw from said boxes a sufficient number of names to
serve as grand and petit jurors, for their or either of their said
counties, at their next then depending superior courts ; and the
jury being so drawn, the said box or boxes again to seal and de-
liver, together with the keys, to the proper officer : Provided, that
said assemblage and drawing shall be at least sixty days previous
to the commencement of the superior court, at which said jurors
shall be liable to serve. Act. 1815, p. 102.
Of the Challenge of furors.
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.
Peremptory. This is so called, because a person may chal-
lenge peremptorily upon his own dislike, without showing ol
any cause.
Every person indicted for a felony, or a crime which may sub-
ject him or her to death, or five years imprisonment, or longer in
JURORS.
229
the penitentiary, may peremptorily challenge twenty of the jurors,
impannelled to try him or her. And all other offences, punish-
able with hard labour, the person indicted shall be allowed twelve
peremptory challenges. P. C. p. 137.
Principal challenge to the polls, where cause is shown, but which
if found true, stands sufficient of itself, without leaving any to the
triers.
Causes 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 prin-
cipal challenge j for that the law presumeth that one kinsman doth
favour another before a stranger, and how far remote soever he is
cf kindred, yet the challenge is good. 1 Inst. 157.
Affinity or alliance by marriage is a principal challenge, if the
same continues, or issue be had j 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 before hand,
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.
So likewise, one may be challenged, that he was indictor of the
plaintiff, or defendant, in the same cause : for such a one, it may
be thought, will not satisfy his former oath. Lamb. 554. A grand
juror maybe challenged. Haw. Pla. Cor. book 2, chap. 25, § IS.
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. 309.
If a juror hath been an arbitrator, chosen by the plaintiff or de-
fendant 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.
If he be of counsel, servant, or feed of either party, it is prin-
cipal challenge. 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.
230
JURORS.
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 dis-
pleasure, are causes of principal challenge ; othpr actions which
do not imply malice or displeasure, are but to the favour. 1 Inst.
157.
If either party labour the juror, and give him any thing to give
verdict, this is a principal challenge ; but if either party labour
the jury to appear, and do his conscience justice, this is no chal-
lenge at all, but lawful for him to do it. 1 Inst. 157.
That the juror is a fellow servant with either party, is no prin-
cipal challenge; but to the favour. 1 Inst. 157.
If the juror be attainted, or convicted of treason or felony, or
for any offence to life or member, or in attaint for a false verdict,
or for perjury as a witness, or in a conspiracy at the suit of the
state, or in any suit (either for the state or for any citizen) be ad-
judged to the pillory, tumbrel, or the like, or to be branded or stig-
matised, or to have any other corporal punishment, whereby he
becometh infamous, these and the like are principal causes of chal-
lenge. 1 Inst. 158.
Challenge to the polls for favour. This is when either party
cannpt 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 him favourable or not favourable, and the causes
of favour are infinite; for all 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 be challenged by one party, and after be tried indif-
ferent, it is time enough for the other party to challenge him. 1
Inst. 158.
After challenge to the array, and trial duly returned, if the same
party take a challenge to the polls, he must show cause presently.
1 Inst. 158.
JURORS.
231
If a juror be formerly sworn, if he be challenged, the party
must show cause presently, and that cause must arise since he was
sworn. 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, fo,r the judges,
Instead of triers, to try and decide upon the propriety of all chal-
lenges, which are made to jurors, or persons brought to give evi-
' dence in any of the courts thereof.
By the law of England, a jury, after their evidence given upon
the issue, ought to kept together in some convenient place, with-
out 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 the bailiff ought to be sworn to keep them together, and
not to suffer any to speak with them, nor speak to them himself
unless it be to ask them if they are agreed upon their verdict.
2 H. H. 296.
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 verdict, it is fineable, but it shall not avoid the
verdict: But if before they be agreed 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 de-
fendant, it shall not avoid it j 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.
But with the assent of the justices they may both eat and drink;
as if any of the jurors fall sick before they be agreed on their ver-
diet, then by the assent .of the justices he may have meat or drink,
and also such other things as be necessary for him, and his fel-
lows also, at their own cost, or at the indifferent costs of the parties
if they so agree ; and if they cannot agree, the justices may, in
such case, suffer the jury to have both meat and drink for a time,
to see whether they will agree. Dr. and St. 158.
After their departure they may desire to hear one of the wit-
nesses again, and it shall be granted, so he deliver his testimony
232
JURORS.
in open court; and also they may desire to propound question?
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 depart-
ed 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 w as
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 dis-
charged without the prisoner's consent till they have given a ver-
diet. 2 Haw. 439. Fost. 22. Sir John WedderbourrCs case.
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.
M, 12 G. Hale and Cove, The jury having sat up all night,
agreed in the morning to put two papers into a hat, marked plain-
tiff and defendant, and so draw lots; plaintiff came out, and they
found for the plaintiff, which happened to be according to the evi-
dence and the opinion of the judge j upon motion for a new trial,
it was agreed that the verdict must be set aside ; but the ques-
tion was, whether the defendant should pay costs ? The court in-
clined to give the plaintiff costs, comparing it to the case of a ver-
diet against evidence ; but at last it was agreed that the costs
should wait the event of a new trial. Str. 642.
After they be agreed, they may in causes between party and
party, if the court be risen, give a private verdict, before any of
the judges of the court, and then they may eat and drink ; and the
next morning in open court, they may either affirm or alter their
private verdict, and that which is given in court shall stand. 1
Inst. 227.
But 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.
On every trial for an offence contained in this code, or for any
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 guiltv,"
JURORS.
233
and on the acquittal of any offender, no new trial shall, on any ac-
count be granted by the court. P. C. p. 137.
It hath been adjudged, that if the jury acquit a prisoner of an
indictment of felony against manifest evidence, the court may, be-
fore the verdict is recorded, but not after, order them to go out
again, and reconsider the matter ; but this by many is thought
hard, and seems not of late years to have been so frequently prac-
tised as formerly ; however, it is settled, that the court cannot set
aside a verdict which acquits a defendant of ^ prosecution proper-
ly criminal, as it seems that they may give a verdict that convicts
him, for having been given contrary to evidence and the direc-
tions of the judge, or any verdict whatsoever for a mis-trial. 2
Haw. 442.
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 verdict which is recorded shall stand. 1 Inst.
227.
A verdict finding an impossible matter shall not be void, if at
the same time it find the substance of the indictment; but the sur-
plus shall be rejected. 1 Haw. 77.
Verdict shall not be taken so strictly as pleading, but the sub-
stance of the thing in issue ought to be always found. 3 Salk. 373.
But if the case so happen, that the jury can in no wise 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 appearetfi 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 awarding a
new inquest, or otherwise as they shall think best, by their discre-
tion, 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.
Embracery, is an attempt to influence a jury corruptly to one
side, by promises, persuasions, entreaties, money, entertainments,
and the like. Every embracer who shall procure any juror to
take money, gain, or profit, or shall corruptly influence a juror by
persuasions, promises, entreaties, or by any other means, shall be
punished by imprisonment in the penitentiary, not exceeding three
years ; and the juror convicted of taking money, gain, or profit, or
2 G
234
JUSTICES.
of corruptly being influericed as aforesaid-, shall be sentenced to be
imprisoned in the penitentiary, at hard labour, for any time not less
than three years, nor exceeding five years, and moreover be for ever
disqualified to act as a juror. P. C. p. 122.
No one is liable to any prosecution in respect of any verdict gi-
ven by him, in a criminal matter, either upon a grand or petit
jury j for since the safety of the innocent, and punishment of the
guilty, doth so much depend upon the fair and upright proceed-
ings of jurors, it is of the utmost consequence that they should
be as little as possibie under the influence of any passion whatso-
ever, and therefore lest they should be biassed with the fear of
being harassed by a vexatious suit, for acting according to their
consciences, the law will not leave any possibility for a prosecu-
tion of this kind j and as to the objection that an attaint lies against
a jury for a false verdict, in a civil cause, and that there is as
much reason to allow of it in a criminal one, it may be answered,
that in an attaint in a civil cause, a man's property is only brought
into question a second time, and not his liberty or life. 1 Haw. 191,
L. Raym. 469.
JUSTICES OF THE PEACE.
I. The.ir Jurisdiction in Civil Cases.
II. \n Criminal Cases*
III. Their Fees.
I. Their Jurisdiction in Civil Cases.
The 5th sect, of the 3d art. of the constitution as altered by the
act of 1812, is again proposed to be altered by the act of 1818,
and as that alteration will no doubt take place, I shall insert the
contemplated alteration.
The justices of the peace throughout this state, shall be elect-
ed by the persons residing in their respective districts, entitled to
vote for numbers of the general assembly, under such rules and
regulations as the legislature may by law direct—Acts 1818, 102.
And there shall be two justices of the peace in each captain's dis-
trict, either or both of whom shall have power to try all cases of a
civil nature, within their district, where the debt or liquidated deJ
JUSTICES.
235
mand does not exceed thirty dollars, in such manner as the legisla-
ture may by law direct. 5th Sec. 3d Art. Con.
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 summons or warrant. But no justice of the infe-
rior 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 costs, 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 twenty days after an appeal, on payment of costs,
and giving security within four days ; and in both cases the secu-
rity is liable for the debt and costs.
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 instruments, or where they have been
reduced by giving new bonds or notes, the last as well as the for-
mer case, are within the jurisdiction of a justice of the peace.
The appeal is to be tried by a jury consisting of five persons,
and their verdict is final, (if legal and regular.)
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.
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
leaving 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.
As the law requires ten days notice before trial, it would seem
t(5 imply that the case may be tried at the first term, and as the
object of justices courts is for the speedy collection of small debts,
that would appear to be the reasonable intention of the law.
Where there are joint obligors or promissors living in different
districts or counties, the plaintiff may sue either of them, in which
ever district or county he pleases, and may include the others in
the suit, and obtain judgment against them, by having them serv-
ed 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-
sued.
Wherever a person complains on oath, to a justice of the peace,
that his debtor resides out of the state, or is removing without its
236
JUSTICES.
limits or any county thereof, or absconds or conceals himself, or
stands in defiance of an officer, so that the ordinary process of law
cannot be served on him, he may grant an attachment against said
debtor, which may be levied on his estate, by a proper officer,
wherever the same may be found, or in the hands of any person in-
debted to him or holding any of his effects, and if in the hands of
any one, such person must be summoned to appear at court 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 in-
debted or having effects, the plaintiff may traverse such denial, and
the same shall be tried at the succeeding term, unless there is good
cause for a continuance, by a jury of five persons, in the same man-
ner of appeals. And if found against the garnishee, judgment
shall be entered against him, as against the original debtor. But
before the justice grants the attachment, he jnust take a bond from
the person praying it, in double the sum claimed, payable to the
defendant, for satisfying all costs and damages which he may in-
cur, in case the plaintiff discontinues or is cast in his suit; which
bond is to be returned to the same court of the attachment, sub-
ject to the use of the defendant if he sustains any injury. The at-
tachment 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
required, the attachment must be dismissed with costs. Every
attachment 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 succeeding court.
The property attached, may be replevied by the defendants gi\ -
ing bond and security to the officer levying, conditioned for his
appearance at court and abiding the order thereof. If the pro-
perty 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 balance if any to be returned to the defendant; sales made
pursuant to such order, must be conducted in the manner of con-
stable's sales under execution. Whenever the garnishee deposes
to debts or effects in his hands, j udgment shall he 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
JUSTICES.
237
of the judgment, as if taken under execution. When the property
thus sold, is insufficient to pay the demand, or the same shall be
of the nature of real estate, then the justice shall issue execution
for the judgment, or what remains unpaid.
Where garnishees return debts due the absent debtor, the court
shall order them collected, subject to their order.
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. In cases of mutual debts and sets
off, the justice may give judgment to the defendant for any bal-
ance found to be due him. Cases may be continued three times,
by either party, on good cause shewn on oath. Where property
is claimed upon which an execution is levied, the officer must post-
pone the sale and make return thereof to the next court thereafter.
But the person claiming the property, must first make oath in
writing that it is not liable to the execution, and shall give bond
and security in double the amount thereof, payable to the plain-
tiff, conditioned to pay all costs and damages which he may sus-
tain, in case the claim is frivolous and intended for delay. The
claim is to be tried by five jurors, in the same manner of appeals,
and may be continued one term only, on good cause shewn on
oath.
Justices may hold to bail for debts within their jurisdiction, un-
der the same regulations as in the other courts.
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 costs can only be taxed for two witnesses to the same fact,
and they must attend from term to term until legally discharged.
All fines must be paid over to the inferior court for county pur-
poses. 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 hav-
ing been first served on the adverse party, five days before issuing
the commission. The commission is to be directed to two or more
freeholders, one of them being a justice, to examine on oath the
238
JUSTICES.
Witness ; and the examination 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 re-
ceived it from the commissioners, the testimony when thus re-
turned may be read by either party.
For the manner of drawing jurors in justices courts, See
Jurors.
The oath of the Jury in all trials in a Justices Court.
" You shall well and truly try the cause now pending between
A. B. plaintiff and C. D. defendant, and a true verdict give ac-
cording to equity, and the opinion you entertain 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 with-
drawn, so help you God."
Persons charged with offences before a justice, may be dls-
charged for the want of sufficient cause of complaint, either at
their cost or the cost of the prosecutor, at the discretion of the
justice.
No instrument for money, shall be denied in a justices court,
but upon oath in writing of the party making such denial.
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
district or county to which the defendant has removed, may be
levied by any lawful constable of said county.
Ten days residence in a county or district, will be sufficient to
give jurisdiction to a justice's court.
When a district is without justices, any justice in the adjoining
districts, 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.
Justices may be indicted for mal-practice, and if convicted, may
be fined and removed from office, or either, at the discretion of
the court.
Where a security discharges an execution, the justice must make
an entry to that effect in his docket book, and then let the securitv
JUSTICES,.
239
have the controul of the execution, to make his money off the
principal.
Where suits are commenced in justice's 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, judg-
ment shall go against them as such, and if satisfied by such secu-
rities, they shall have the controul of the execution, to make their
money out of the principal. But the judgment must also have
gone against the principal.
Constables must advertise their sales at two or more public
places in the district, and at one or more public places in the
county, fifteen days before sale, giving a clear and full description,
of the property, and the sales must be on a court day, and at the
place of holding court, between the hours of ten and three
o'clock.
Constables must not levy on negroes, or real estate, unless there
is no other personal property, sufficient to satisfy the debt, in that
case they may levy thereon, and return the same to the sheriff of
the county, who is to sell the same in the manner of real estates.
Judgments obtained injustice's courts, are of equal dignity with
any other judgments, and shall bind property from their date, as
also the property of securities from the time of their entering as
such.
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.
Constables are bound to levy all executions, and serve all war-
rants and summonses, and make return thereof to their court, and
upon failure to make such return, or to pay over money collected
by them, within ten days after receiving it, the justice of their dis-
trict, and if none, then of the adjacent districts, may grant a war-
rant, upon application, against such constables, and upon proof of
their failure to pay over money, may award judgment against them
for the amount detained and costs, and also fine them not exceed-
ing ten per cent, on the amount withheld ; and for failure to serve
and return warrants and other process, may fine them in a sum not
exceeding the debt sued for, and they shall also be subject to in-
dictment for malpractice in like manner of justices of the peace.
Persons instituting suits in a justices court, may settle them at
any time by the payment of costs. And where a defendant is un-
able to pay costs the plaintiff shall.
240
JUSTICES.
Any constable of the county may serve a warrant or summons,
attachment «or subpoena, in any case where a justice of the peace
or constable is a party ; and if there is no constable in the dis-
trict, any constable of the county may act in said district.
Justices may fill the vacancies of constables in their respective
districts, administer to them the oath of office, and take bond and
security of them according to law ; and th4y shall serve until the
next inferior court, and until a successor is duly appointed.
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. See title Constables, in this book, for
their duty ; and also the Acts of 1811, p. 3. for the duty of jus-
tices in civil cases.
II. Their Jurisdiction in Criminal Cases.
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.
And 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 such 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 con-
tentions, while one 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 thai; 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.
The judges of the superior and justices of the inferior courts,
have, as incident to their offices, a general authority to keep the
peace throughout the state, and to award process for the security
of the peace, and to take recognizance for it.
Also every court of record, as such, hath power to keep the
peace within its own precinct. 2 Haw. 32.
JUSTICES.
241
Also every justice of the peace is a conservator of the peace.
Crom. 6.
Also all sheriffs, coroners, and constables, are conservators of
the peace, and may certainly, as it is their duty, to suppress all
fighting, affrays, riots, and other disorders tending to a breach of
the peace, and call upon by-standers or other persons to aid them
in that duty. 2 HaW. 33.
And it is said, that if a constable see persons engaged in art
affray, or upon the point of entering upon it, as where one shall
threaten to kill, wound or beat another, he may imprison the of-
fender of his own authority, for a reasonable time, till the heat
shall be over, and also afterwards detain him till he find surety of
the peace by obligation. 1 Haw, 137.
But it is said that a constable hath no power to arrest a man for
an affray done out of his own view j for it is the proper business
of a constable to preserve the peace, not to punish the breach of
it; nor doth it follow from his having power to compel those to
find sureties who break the peace in his presence, that he hath tho
same power over those who break it in his absence. 1 Haw. 137«
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,
If a conservator of the peace, being required to see the peace
kept, shall be negligent therein, he may be indicted and fined. Ib,
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 goal delivery, or superior court, there to object against them,
lb.
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.
The form of the Commission of the Peace to the Justices.
. f By A. B. governor and commander in
State of Georgia, | ch; J ^ ^ ^ ,5^
To R. I. justice of the peace, for the two hun bred and sixteenth
2 H
242
JUSTICES.
company district of Georgia militia, in the county of Clark, 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 con-
servation of the same, and for the quiet rule and government of
the people in the said 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 Jind
security for the peace, and their good behaviour towards the peo-
pie ; 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, tres-
passes, and all and singular other misdeeds and offences whatso-
ever, committed by negroes, mulattoes or mestizoes, of which jus-
tices of the peace may or ought lawfully to inquire or adjudge:
and likewise in your district to examine, hear, try, judge and deter-
mine all such civil causes of which by the Constitution 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 justices
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 arti-
cles, circumstances, and all other things whatsoever, by whomso-
ever, or howsoever done or perpetrated in the district aforesaid,
or which shall hereafter be done or attempted to be done, in any
wise 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 in-
quiry and determine all and singular the premises, and perform
and fulfil the same, doing therein what to justice appertaineth, ac-
cording to the said laws.
Justice for the district of~\ Here are two considerations; one
is, that the justice cannot act when he js out of the district, only
in such cases as by statute he is particularly authorised: and the
JUSTICES. 543
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 understood with some limitation.
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 recogni-
zances and informations voluntarily taken before him in any place
are good. 2 Haw. 37.
And lord Hale says, that a justice of the peace may do a minis-
terial act out of his county, and of course out of his district, as
examining a party robbed, whether he knows the felons, Etc.; but
that he cannot do a compulsory adt, as committing a person for not
giving recognizance. 2 H. H. 50,51.
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 re-
lating to the peace, and the examination 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 j ustices, 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 co-
ram non judice, or illegal. Dalt. c. 6.
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 jus-
tice alone, he cannot proceed upon it; but he may prefer the cause
at the sessions, and work it to a presentment upon the statute
Dalt. c. 5.
244
JUSTICES.
But besides the statutes relating to the peace, there ire 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 commission of them-
selves, although they be not recited in the commission, and are
to be executed by them, according as the statutes themselves do
{severally prescribe and set down. Dalt. c. 5.
Threaten any of the people in their persons.] 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 opin-
ion, that if one threatens to hurt a man's wife 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 likewise, 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.
To find security.] This is done by recognizance, by a reasona-
ble intendment of law, more than by $ny special law in that case
provided. Crom. 125.
Lord Hale, speaking of the statute of the 34 Ed. 3. c. 1. (on
which Mr. Crompton says, the power of justices to bind to the
good behaviour is grounded) says, that this power of binding,
though expressed generally, and without any time limited, yet is
not intended to be perpetual; but in nature of bail, viz. to appear
on such a day at the sessions, and ip the mean time to be of good
behaviour. 2 H. H. 136.
Trespasses.This is founded on the statute of the 34 Ed. 3.
c. 1. which enacts, that the justices assigned shall have power to
restrain the offenders, rioters, and all other barrators, and to chas-
tise them according to their trespass or offence.
And upon this Mr. Hawkins observes, that the word trespass
is of a very general extent, and in a large sense not only compre-
hends all inferior offences, which are properly and directly against
the peace, as assaults and batteries, and such like, but also all
others, which are so only by construction, as all breaches of the
law in general are §aid to be j yet it hath been of late settled, that
JUSTICES.
24$
justices of the peace have no jurisdiction over forgery or perjury
at the common law—but by statute they have.
Extortions."] The intent of this word is to enquire of those who
have done excessive wrongs ; for wrong done by any one is pro-
perly trespass, but excessive wrong done by any one is called
extortion, and this is more properly in officers, as sheriffs, may-
ors, bailiffs, escheators, and other officers whatsoever, who, by
colour of their office, have done great oppression and excessive
wrong to the good people of the state, in taking excessive rewards
or fees for doing their offices. Crom. 8.
And o f all and singular other misdeeds and offences, of which
justices of the peace may or ought lawfully to enquire.] Which
general words seem to include the vast number of offences over
which they have a jurisdiction given them by many statutes, and
which are not particularly mentioned in the commission.
And of all those who in the said districts have either gone or
ridden, fcfc.] By these words they are to inquire of riots, routs,
and unlawful assemblies. Crom. 8.
Keeping of the peace.] These words seem to give the justices
of the peace the authority which the conservators of the peace
had at common law.
Regularly justices of the peace ought not to execute their office
in their own case, but cause the offenders to be convened, or car-
ried 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.
An order of removal of a poor person from Great Chart to Ken-
nington was quashed, because one of the justices who made the
order was an inhabitant of Great Chart at the time, and charged
to the poor rate there: and by the court no rule of law or reason
is more established, than that a judge ought to stand disinterested.
Bur. Settle. Cas. 194.
Yet in some cases if the justice shall act in his own cause, it
seemethto be justifiable ; as when a justice shall be assaulted, or
fin 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 be-
£46
JUSTICES.
haviour, 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.
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 cognizance, the officer ought not to execute such warrant:
so that the officer is bound to take notice of the authority and ju-
risdiction of the justice. Cro. Car. 394.—10 Co. 76.
In statutes imposing fines on individuals cognizable before a
justice of the peace, the party ought to be heard, and for that pur-
pose ought to be summoned in fact; and if the justice proceed
against a person without summoning him, it would be a misde-
meanor in him, for which an information would lie, 1 Salk. 181.
L. Raym. 1407. Str. 678.
If a justice perceives that he has been deceived or surprised
into any measure, or that he has acted therein illegally or irregu-
larly, he may issue a supersedeas, and prevent any further pro-
ceeding thereon.
If a justice of the peace refuses to proceed in a cause depend-
ing before him, he may be compelled by mandamus from the su^
perior court to proceed therein: or if he will not proceed, or evade
proceeding, to execute any act of assembly inflicting a penalty
which he has cognizance of, especially if such conduct be out of
favour to the offender, he may be indicted, as well as punished for
a contempt of the superior court.
The justices ought to make a record in all cases of conviction
before them, for penalties, where they are empowered to hear and
determine 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 oc-
casion to produce it, if sued for what' he has done in relation
thereto.
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
offenders to that court, and the witnesses: and also may take the
examination of the offender in writing, and send the same to court.
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,
JUSTICES.
247
villain, or the like opprobrious words: or the justiee may commit
him. Str. 617. 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.
A justice of the peace ought not to be proceeded against harsh-
ly, 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.
A justice cannot issue his warrant to break open any man's
house, to search for stolen goods or for a felon, upon a bare sur-
mise.
The arrest, confinement or detention of a free person or citizen,
by the warrant, mandate, or process of a magistrate, being mani-
festly illegal, and shewing malice and oppression, the said magis-
trate shall be removed from office, and such magistrate, and
all and every person and persons knowingly and maliciously con-
cerned therein, shall be punished by fine and imprisonment in the
common jail of the county where the offence may have been com-
mitted- P. C. 102.
Any justice of the peace, charged with malpractice in office, by
using of oppression, tyrannical partiality, or any other conduct un-
becoming his character as an upright magistrate in the adminis-
tration, and under colour of his office, shall, upon conviction, be
sentenced to pay a fine, or be imprisoned in the common jail of
the county, as the court may order and direct, and also be remo-
ved from office. P. ,C. 122.
If any justice or other officer, bound to preserve the public
peace, shall have knowledge of an intention to fight with any dead-
ly weapon given or received, and not use and exert his official au-
thority to arrest the parties and prevent the duel, such justice or
other officer shall, for such neglect of duty, be indicted, and, on
conviction, be dismissed from office. P. C. 124.
248
JUSTICES.
III. Fees of a "Justice of the Peace, subject to an increase of ffty
per cent. by the act of 1818.
In Civil Cases.
s c.
For a warrant or summons - - - - 00 25
For each cause tried by him - - - - 00 25
For affidavit to obtain an attachment or hold to bail and
taking bond - - - - - - 00 50
For each execution, ca. sa. or attachment - - 00 25
For taking interrogatories and certifying the same 1 00
For drawing jury and making out venire - - 00 25
For each cause tried by said jury - - - 00 25
For each subpoena for witnesses - - - . 00 12§
For each affidavit where there is no cause pending 00 25
For every stray horse, mare, colt, filly, ass, or mule,
brought before him, to be paid by the taker up 00 75
For each head of neat cattle, sheep, goats, or hogs 00
For each head of neat cattle advertised - - 00 25
His commissions on all estrays sold by him, five per cent.
In Criminal Cases.
8 C.
For affidavit to obtain a warrant - - - 00 25
For making out a warrant - - - - 00 25
For making out a commitment - - - - 00 25
For making out a recognizance and returning the same
to court 00 25
For each subpoena for witnesses 00 12i
LARCENY.
249
LAHCENY.
^Theft or larceny as contra-distinguished from robbery by vio-
lence, force, or intimidation, consists of
I. Simple theft or larceny.
II. Theft or larceny from the person.
IIL Theft or larceny from the house.
IV. Theft or larceny after a trust of confidence has heen dele*
gated or reposed.
I. Simple theft or larceny.
Simple larceny, is the feloniously taking and carrying away the
personal goods of another.
Simple larceny shall embrace every theft which deprives ano-
ther of his property, or of those means or muniments, by which
the right and title to property may be ascertained.
Horse stealing shall be denominated simple larceny or theft.
The term horse shall include the animal of both sexes, and
without regard to the alterations which may be made by artificial
means.
Under the head of horse stealing, shall be included the theft
of mule or ass, or any-animal, the hoof of which is not cloven.
The offence shall in all cases be charged as horse stealing, but
the indictment shall designate the sex of the animal, and give any
other description by which its identity may be ascertained.
The stealing or theft of a horse, mule, or ass, shall be punish-
ed by imprisonment at hard labour in the penitentiary, for any
time not less than one year, nor longer than five years.
The stealing of horses, mules, or asses, shall be punished by
imprisonment at hard labour in the penitentiary, for any time not
less than two years, nor longer than seven years.
Cattle stealing shall include the theft or larceny of any horned
animal or animals, and all animals having the hoof cloven, except
hogs.
The indictment shall sufficiently describe the animal or animals,
falling under the preceding section, so that it, or they may be as-
Pertained and identified by the owner or owners thereof.
2 I
2 50
LARCENY.
The stealing of one or more animals, under the before given de-
scription of cattle, shall be punished by fine and imprisonment in
the common jail of the county where the offence may have been
committed, as the court may order and direct, for any time not
leSs than six months, nor longer than one year, or at hard labour
in the penitentiary, for a term not less than one year, nor more
than five years.
The stealing of a hog or hogs, shall be punished by confine-
ment in the common jail of the county where the offence may
have been committed, for any time not less than one month
nor longer than six months, or by confinement at hard labour in
the penitentiary for a JLerm not less than one year, nor more than
two years.
If any person or persons, shall alter or change the mark or
brands of any animal or animals before mentioned, with an inten-
tion to claim the same, or to prevent identification by the true
owner or owners thereof, the person or persons, so offending, shall
suffer the same punishment, and the court shall exercise the same
discretion, as is inflicted and given, for the theft of the said ani-
mal or animals.
All other domestic animals or creatures, which are fit for food,
may be subjects of larceny.
The punishment for the theft of such domestic animals or crea-
tures, which are fit for food, shall be by fine or imprisonment, or
both, in the common jail of the county, as the court may order
and direct.
Larceny may be committed of writings relating to real or per-
sonal estate.
If any person shall take and carry away any p.aper or papers,
documents, deeds, or other writings, relating to real or personal
estate,.with an intention to impair, prevent, or render difficult, the
establishment of a title to real or personal estate, or mutilate, can-
eel, burn, or otherwise destroy said papers, documents, deeds or
writings, with the same intention, such person shall be considered
guilty of simple larceny or theft, and punished by imprisonment
in the penitentiary, at hard labour, or in solitude, for any time not
less than one year, nor longer than two years.
The theft of a bond or bonds, note or notes, bank bill or bills,
or any paper or papers, securing the payment of money or other
thing, or of a receipt or receipts, or any paper or papers, ope-
rating as a discharge for the payment of money or other thing, shall
LARCENY.
251
be punished in the same manner as the theft of the money, the said
bond or bonds, note or notes, bill or bills, or other papers, were
meant to secure ; or, of the money the said receipt or receipts, or
other paper or papers were meant to discharge the payment there-
of; the punishment for this larceny shall be imprisonment at hard
labour in the penitentiary, or in solitude for any time not less than
one year, nor longer than three years.
Theft or larceny may be committed of any thing or things,
which in the language of the law, savours of the reality or of any
fixture or fixtures, and the punishment shall be fine or imprison-
ment, or tfoth, in the common jail of the county, as the court may
order and direct.
Plundering or stealing from a vessel in distress or from a wreck,
within the jurisdictional limits of this state, shall be punished by
imprisonment at hard labour in the penitentiary for any time not
less than one year, nor longer than five years.
If an officer or servant or other person employed in a bank de-
riving its charter from the legislature of this state or the United
States, shall steal, secrete, or embezzle, or run away with any note
or notes, bank bill or bills, warrant or warrants, bond or bonds,
deed or deeds, security or securities, draft or drafts, check or
checks, money or effects entrusted with him or the directors of
said bank, such offender shall be punished by, imprisonment at
hard labour, or in solitude in the penitentiary, for any time not
less than three years, nor longer than seven ye^rs.
Any person or persons who shall feloniously take and carry
away a slave, shall be punished by imprisonment at hard labour in
the penitentiary, for any time not less than three years, nor longer
than seven years.
If any person or persons shall by any enticement, or by giving
a pass, or by any other means, induce a slave or slaves to run away
from his, her or their owner or owners with an intention feloniously
to sell said slave or slaves, or otherwise to deprive the said owner
or owners of the services of said slave or slaves, such person or per-
sons, so offending, shall be punished by imprisonment at hard la-
bour for any time not less than three years, nor longer than seven
years.
All larcenies or simple thefts of the personal goods of others,
not mentioned or particularly designated in this code, shall be
punished by imprisonment in the common jail of the county where
the said offences may have been committed; or by imprisonment
252
LARCENY.
in solitude, or at hard labour in the penitentiary; but no imprison-
ment shall be directed or ordered in the penitentiary unless th&
goods stolen shall be of the value of twenty dollars.
In every case of simple larceny or theft, not mentioned in this
code, the person convicted shall be imprisoned in the common jail
of the county, or in the penitentiary, which imprisonment shall in
no case exceed one year.
II. Theft or Larceny from the Person.
Theft or larceny from the person, as distinguished from rob-
bery before described, is the offence of feloniously taking any
money, goods, effects or chattels, or any article of value from the
person of any other, privately without his knowledge, in any place
whatever.
A person convicted of this class of larceny, shall be imprisoned
in the penitentiary at hard labour, "or in solitude for any time not
less than one year, nor longer than five years.
If the goods, money, chattels, or effects, or any article so pri-
vately stolen from the person, do not amount to or are of the value
of twenty dollars, then the person convicted shall be punished by
imprisonment in the common jail of the-county where the offence
may have bfeen committed, for any time not longer than one year,
as the court may order and direct.
If this offence be committed in a public place, or where many
persons are assembled, it shall be considered as greatly adding to
the criminality of the action, and the punishment shall be propor-
tionably increased and enlarged, as the court before whom the con-
viction takes place may order and direct.
Any sort of secret, sudden or felonious taking from the person,
without using intimidation, or open force and violence, shall be
within this class and description of larceny, though some small
force be used by the thief, to possess himself of the property :
Provided, there be no resistance by the owner, or injury to his
person, and all the circumstances of the same shew that the thing
was1 taken, not so much against, as without the consent of the
pwner.
LARCENY.
253
III. Theft or Larceny from the House.
Larceny from the house is the entering or breaking any house
other than a dwelling house or its appurtenances) with an intent
to steal, or after entering, or breaking said house, stealing there-
from any money, goods, chattels, wares, merchandize or any
thing of value whatever.
All and every person and persons, who by night or day, shall in
any store, shop, or warehouse, or any other house or building, pri-
vately and feloniously steal any goods, wares, or merchandize, or
any other article or articles, thing or things of value, though such
store, shop, or warehouse, or other house or building, be not ac-
tually broken open by such offender or offenders, or shall assist,
hire or command any person to commit such offence, shall be pun-
ished by imprisonment at hard labour, or in solitude in the peni-
tentiary, for any time not less than one year, nor longer than five
years.
Any person or persons entering a house or building as before
described, with intent to steal, but is detected and prevented from
so doing, shall be punished by imprisonment at hard labour in the
penitentiary, or in solitude, for any period not less than one year,
nor longer than three years.
Any person or persons breaking any part of a house or building
-as before described, with intent to steal, but is detected and pre-
vented from effecting such intentions, shall be punished by impri-
sonment in solitude, or hard labour in the penitentiary, for any
time not less than one year, nor longer than three years ; but if
the owner of said house or building, or any other person be in the
house at the time of such breaking, and put in fear, then the said
offender or offenders shall be punished by imprisonment at hard la-
bour in the penitentiary, for any time not less than two years, nor
longer than seven years.
Any person breaking and entering a house or building, as be-
fore described, with intent to steal, but is detected and prevented
from carrying such intention into effect, shall be punished by im-
prisonment in solitude, or at hard labour in the penitentiary, for
any time not less than one year, nor longer than three years ; and
any person breaking and entering any house, as before described,
under this class of larceny, and stealing from said house or build-
ing, any goods, wares or merchandize, article or articles, thing or
254
LARCENY.
things of value, shall be punished by imprisonment at hard labour
in the penitentiary, for any time not less than two years, nor longer
than five years.
If the said breaking, entering and stealing, be accompanied by
any violence, menace or threat, or by alarming and putting in fear,
any person in said house ; then the imprisonment at hard labour
shall be extended to the longest period mentioned under this class
of larceny.
Entering or breaking with intent to steal, entering and stealing,
breaking and stealing, breaking and entering with intent to steal,
breaking, enteripg and stealing from any house, building or edi-
fice belonging to the state or a corporate body, or appropriated for
any public purpose, shall be punished in the same manner as if the
offence had been committed in a private house, or building as be-
fore described under this head of larceny.
Accessories or persons assisting, commanding or advising any
person to commit any offence under this class of larceny, shall re-
ceive the same punishment as may be inflicted on the principal
or principals.
Any person entering and stealing from any,hut, tent, booth, or
temporary building, shall be punished in the same manner as if
the offence had been committed by privately stealing from a house
or building, as before described under this class of larceny.
IV. Theft or larceny after a trust has been delegated, or a corifi-
dence reposed.
Any- servant, officer or person employed in any public depart-
ment, station, or office of the goverment of this state, or any county
of this state, or to any office of a corporate body, who shall em-
bezzle, steal, secrete, or fraudulently take and carry away, any mo-
ney, goods, chattels, effects, bond or bonds, promissory note or
notes commonly called, bank bills, or notes or any other security
for the payment of money of whatever description it may be, be-
ing the property of said state, county, or corporate body, shall be
punished by imprisonment at hard labour in the penitentiary,
or in solitude, for any time not longer than five years. P. C. p.
104, to 110.
Felonious. Felony is always accompanied with an evil intention,
and therefore shall not be imputed to a mere mistake or misani-
mad version j as where persons break open a door in order to ex-
LARCENY.
2 55
ecute a warrant, which will not justify such a proceeding, for in
such a case there is no felonious intention. 1 Haw. 65. For it is
the mind that makes the taking another's goods to be felony, or a
bare trespass only; but because the variety of circumstances is so
great, and the complications thereof so mingled, that it is impos-
sible to prescribe all the circumstances evidencing a felonious in-
tent, or the contrary, the Same must be left to the due and atten-
tive consideration of the judge and jury, wherein the best rule is,
in doubtful matters rather to incline to acquittal than conviction.
Only, in general it may be observed, that the ordinary discovery
of a felonious intent is, if the party doth it secretly, or being charged
with the goods denies it. 1 H. H. 509.
But nevertheless doing it openly and avowedly doth not excuse
from felony. So where a man came to Smithfield market to sell a
horse, and a jockey coming thither to buy a horse, the owner deliv-
ered his horse to the jockey to ride up and down to try his paces,
but instead of that, the jockey rode away with the horse: this was
adjudged felony. Kel. 82.
So where a person came into a seamstress's shop, and cheap-
ened goods and ran away with the goods out of the shop,
openly in her sight j this was adjudged to be felony, Raym. 276.
So where a man comes into a house, by colour of a writ of exe-
cution, and carries away the goods ; or sues out a replevin to get
another man's horse, and then runs away with him ; this is felony
under colour of law. 2 Ventr: 94. Kel. 83.
Taking, All felony includes trespass, and every indictment
must have the words feloniously took, as well as carried away :
From whence it follows, that if the party be guilty of no trespass
in taking the goods, he cannot be guilty of felony in carrying them
away. 1 Haw. 89.
And from this ground it has been holden, that one who finds
the goods which I have lost, and converts them to his own use,
with intent to steal them, is no felon ; and a fortiori therefore, it
must follow, that one who has the actual possession of my goods
by my delivery, for a special purpose, as a carrier who receives
them in order' to carry them to a certain place j or a taylor who
has them in order to make me a suit of clothes j or a friend who is
intrusted with them to keep for my use cannot be said to steal
them by embezzling them afterwards. 1 Haw. 89.
But yet it hath been resolved, that if a carrier open a pack and
take out part of the goods j or a weaver who has received silk to
250
LARCENY.
work, or a miller who has corn to grind, take out part thereof with
intent to steal it, it is felony. 1 Haw. 90.
So where a man's goods are in such a place, where ordinarily
they are or may be lawfully placed, and a person takes them with
intent to steal them, it is felony, and the pretence of finding must
not excuse. 1 H. H. 506.
So if a man's horse be going upon a common where he has a
right to put him, and another take the horse with intent to steal
him, it is no finding, but a felony. 1 H. H. 506.
So also, if the horse stray into a neighbour's ground or com-
mon, it is felony in him that so takes him. But if the owner of
the ground takes him doing damage, yet, here is not a felonious
intention, and therefore cannot be felony. 1 H. H. 506.
If one man's sheep stray into another man's stock, and that
other person drives it along with his flock, or by bare mistake
shears it, this taking is not felonyJ but if he knew it to be ano-
ther's, and marks it with his mark, this is an evidence of felony.
1 H. H. 507.
Lord Hale says, if one man take another man's hay or corn,
and mingles it with his own heap or stock, or take another man's
cloth, and embroider it with silk or gold, such other person may
retake the whole heap of corn, or cock of hay, or garment and
embroidery also ; and this retaking is no felony, nor so much as a
trespass. 1 H. H. 513.
It seems generally agreed, that one who has the bare charge, or
special use of goods, but not the possession of them ; as a shep-
herd who looks after my sheep, or a butler who takes care of my
plate, or a servant who keeps a key to my chamber, or a guest
who has a piece of plate set before him in an inn, may be guilty
of felony, in fraudulently taking away the same. 1 Haw. 90.
Carrying axvay. It seemeth, that any the least removing of the
thing taken from the place where it was before, is sufficient,
though it be not quite carried off: and upon this ground, the
guest, who having taken off the sheets from his bed, with an in-
tent to steal them, carried them into the hall, and was appre-
hended before he could get out of the house, was adjudged guilty
of larceny: so also was he, who having taken a horse in a close,
with an intent to steal him, was apprehended before he could get
out of the close. 1 Haw. 93.
A wife may be,guilty of felony by stealing the goods of a stran-
ger, but not by stealing the goods of her husband. 1 Haw. 93.
LARCENY.
2 57
It is said by Mr. Dalton, and others, that it is no felony for
one reduced to extreme necessity, to take so much of another's
victuals as will save him from starving ; but lord Hale says, that
this rule by the law of England is false ; and therefore, that if a
person being under necessity for want of victuals or clothes, steals
another man's goods, it is felony. 1 H. H. 54.
If one stealeth another man's goods, and afterwards another
stealeth the same from him, the owner may charge the first or se-
cond felon at his choice. Dalt. C. 162.
An alien, whose sovereign is in amity with the United States,
residing here and receiving the protection of the law, oweth a local
allegiance to the state during the time of his residence; and if
during that time, he committeth an offence, he shall be liable to be
punished for the same, even as a natural born subject.
For his person and personal estate are as much under the pro-
tection of the law as the natural born subject's j and if he is injured
in either, he hath the same remedy at law for such injury. Fost.
185.
So also an alien whose sovereign is at enmity with us, living here
under the state's protection, committing offences, may be proceed-
ed against in like manner; for he oweth a temporary local allegi-
ance, founded on that share of protection he receiveth. Ib.
So also, a prisoner of war, although he is not properly subject to
the municipal laws of this country, yet, if he commits any offence
against the law of nations or the light of nature, and the fundamental
laws of all society, he is liable to answer in the ordinary course of
justice as other persons offending in like manner are. As in the case
of Peter Molieres, a French prisoner, who was indicted at the jail
delivery for the city of Bristol, in August, 1758, before sir Mi-
chael Foster, for privately stealing in the shop of a goldsmith and
jeweller, a diamond ring valued at £20, Sir Michael says, he
thought it highly improper to proceed capitally upon a local statute
against a prisoner of war j and therefore advised the jury to ac-
quit him of the circumstance of stealing in the shop as by the stat-
ute, and to find him guilty of simple larceny, to the value laid in
the indictment. Accordingly he was burnt in the hand, and sent
to the prison appointed for French prisoners. Ib. 188.
Also it is said, there may be felony in taking goods, the owner
whereof is unknown ; in which case, the state shall have the goods,
and the offender shall be indicted for taking the goods of a person
unknown j and it seems, that in some cases the law will rather feign
2 K
258
LAW.
a property, where in strictness there is none, than suffer an offen-
der to escape. 1 Haw. 94.
And it hath been adjudged, that he who takes off a shroud from
a corpse may be indicted as having stolen it from him who was
the owner thereof when it was put on ; for a dead man can have
no property. 1 Haw. 94.
LAW.
Law is a rule of civil conduct prescribed by the supreme pow-
er in a state, commanding what is right, and prohibiting what is
wrong. Bla. Com. 44, and is susceptible,(in this state, of the fol-
lowing division:
1st. The constitution of the United States and the acts of con-
gress made in pursuance thereof, and all treaties made under the
authority of the United States, are the supreme law of the land.
Const. U. S. Art. 4.
2d. T|ie next in order and authority is the constitution of this
state.
3d. Acts of assembly passed by the legislature of this state, both
before and since the revolution.
4th. After the late revolution and the establishing of a new
form of government, in order to ascertain what statutes and parts
of the common law were -in force here, the assembly enacted, in
the year 1784, that all and singular the several acts, clauses, and
parts of acts, that were in force and binding on the inhabitants of
this province, on the fourteenth day of May, in the year of our
lord one thousand seven hundred and seventy-six, so far as they
are not contrary to the constitution, laws and form of government
now established in this state, shall be, and are hereby declared to
be in full force, virtue, and effect, and binding on the inhabitants
of this state, immediately from and after the passing of this act,
as fully and effectually, to all intents and purposes, as if the said
acts, and each of them, had been made and enacted by this gene-
ral assembly, until the same shall be repealed, amended, or other-
wise altered by the legislature. And also the common law of
England, and such of the statute laws as were usually in force in
the said province, except as before excepted.
LIBEL.
259
And all fines, penalties and forfeitures inflicted or made payable
by any of the aforementioned acts to the king of Great Britain,
are hereby directed to be paid into the public treasury of this state,
for the use of the same. And that all authorities given and en-
joined by any of the said acts to any public officer, are hereby gi-
ven and enjoined to such public'officers appointed under the con-
stitution or form of government established in this state, and agree-
able to the same. M. & C. Dig. 404.
5th. The common law, which originated in a general custom re-
ceived and approved of by the people from time immemorial, and
is founded upon principles of justice, and handed down to us in
juridical records, and adjudications thereupon, made by former
judges from time to time ; which adjudications, and the reasons
upon them, are contained in reports made of them at the time, and
transmitted to jis in books of reports. In respect to this law, it is
an established rule to abide by former precedents, which are not
evidently against reason or the divine law, where the same points
come again in litigation; and this is in order to keep the law stea-
dy, and not liable to waver with every new judge's opinion. For
where the law is uncertain, the people are slaves to the judges ;
depending for every thing they are permitted to enjoy, upon their
whims and caprices, their enmities or good liking,
Lewdness. See Vice and Immorality
LIBEL.
A libel is a malicious defamation expressed either by printing or
writing, or signs, pictures and the like, tending either to blacken
the memory of one who is dead, or the honesty, virtue, integrity,
or reputation of one who is alive, and thereby exposing him Kto
public hatred, contempt, or ridicule ; every person convicted of this
offence, shall be sentenced to pay a fine not exceeding one thou-
sand dollars, and undergo an imprisonment in the common jail of
the county for any time not exceeding one year, as the court may
order and direct.
260
LIBEL.
In all cases of indictment for a libel^ the person prosecuted shall
be allowed to give the truth in evidence. P. C. p. 125.
A malicious defamation. And the scandal which is expressed
in a scoffing and ironical manner, is as properly a malicious defa-
mation as that which is expressed in direct terms ; as where a
person proposes one to be imitated for his courage, who is known
to be a great statesman but no soldier; and another to be imitated
for his learning, who is known to be a great general but no scholar,
and the like : which kind of writing is as well understood to mean
only to upbraid the parties with the want of these qualities, as if
it had directly and expressly done so. 1 Haw. 194.
And from the same foundation it hath also been resol\ ed, that a
defamatory writing, expressing only one or two letters of a name,
in such a manner, that from what goes before and follows after,
it must needs be understood to signify such a particular person,
in the plain, obvious, and natural construction of the whole, and
would be perfect nonsense if restrained to any other meaning, is
as properly a libel, as if it had expressed the whole name at large;
for it brings the utmost contempt upon the law to suffer its justice
to be eluded by such trifling evasions: and it is a ridiculous ab-
surdity to say, that a writing which is understood by every the
meanest capacity, cannot possibly be understood by a judge and
jury. 1 Haw. 194. Where a writing inveighs against mankind in
general^ or against any particular order of men, as for instance,
men of the gown, this is no libel; but it must descend to particu-
lars and individuals to make it a libel. 3 Salk. 224.
Expressed either in printing, or -writing, signs and pictures.
A libel is either in writing, or without writing : in writing, when
an epigram, rhyme, or other writing is published to the contumely
of another, by which his fame or dignity may be prejudiced.
Without writing may be by pictures, as to paint the party in any
shameful and ignominious manner; or by signs, as to fix a gal-
lows, or other reproachful and ignominious signs at a man's door
5 Co. 125.
Or the memory of one that is dead. For the offence is the same,
whether the person libelled be alive or dead. 5 Co. 125.
It is certain, that not only he who composes a libel, or procures
another to compose it, but also he who publishes, or procures ano-
ther to publish it, are in danger of being punished for it: and it
is said not to be material, whether he who disperses a libel know
any thing of the contents or effects of it or not; for nothing would
LIBEL.
261
be more easy than to publish the most virulent papers with the
greatest security, if the concealing the purport of them from an
illiterate publisher would make him safe in dispersing them. 1
Haw. 105.
Also, it hath been said, that if he who hath either read a libel
himself, or hath heard it read by another, do afterwards mali-
ciously read or repeat any part of it, in the presence of others, or
lend or show it to another, he is guilty of an unlawful publication
of it. 1 Haw. 195.
Also, it hath been holden, that the copying of a libel shall be a
conclusive evidence of the publication of it, unless the party can
prove that he delivered it to a magistrate to examine it. 1 Haw.
195.
And it hath been ruled, that the finding a libel on a bookseller's
shelf is a publication of it by the bookseller; and that it is no ex-
cuse to say, that the servant took it into the shop without the
master's knowledge ; for the law presumes the master to be ac-
quainted with what the servant does. Sess. C, v.l. p. 33. K. and
Dodd. 10. G.
And it seems to be the better opinion, that he who first writes
a libel dictated by another, is thereby guilty of making it, and
consequently punishable for the bare writing; for it was no libel,
till it was reduced to writing : for the essence of a libel consisteth
in the writing of it; for if a man speaks such words, unless the
words be put in writing, it is no libel. 2 Salk. 419. 1 Hawk. 195.
Also, it hath been resolved, that the sending of a letter full of
provoking language to another, without publishing, it, is highly
punishable, as manifestly tending to the disturbance of the peace.
1 Haw. 195.
But it hath been resolved, that he who barely reads a libel in
the presence of another knowing it before to be a libel, or who is
only proved to have had a libel in his custody, shall not, in res-
pect of any such act, be adjudged the publisher of it.
But the having in one's custody a rvritten copy of a libel
publicly known, is an evidence of the publication of it. 1 Haw.
196.
262
LIMITATIONS
LIMITATIONS.
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 return-
ing from beyond seas. By the same act, personal actions were
limited as follows: actions upon the case, (other than for slander,)
actions for accounts, trespass upon the case, debt, detinue, re-
plevin for goods and cattle, and trespass quare clausum fregit,
within four years after the cause of action. Actions of trespass
vi et or mis, assault, battery, wounding, imprisonment or any of
them within two years, and the action upon the case for words
within six months.
By the act of 7th. December, 1805, the act of 1767 was repealed,
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
judgments) within four years j actions upon judgments obtained
in courts (other than the courts of this state) within five years, af-
ter 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 seas,
and that the action should be brought within one and two years
after the other disabilities should be removed j and it also placed
actions of debt on specialties, and simple contracts upon the same
footing. It further exempted persons removing their property,
or absconding from the benefit of the act.
The act of 26th June, 1806, allowed a plaintiff, who was non-
suited 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.
LIMITATIONS.
Z6o
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 men-
tioned in the act of 1767, (except those who were beyond 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 pass-
ing of this act, shall be of the same dignity with specialties, and
subject to the same limitations of specialties ; all other acts mili-
tating against the intent and meaning of this act were repealed.
The act of 13th of 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 acknowledg-
ments under the hand of the party to six years, and all actions
upon open accounts to four years from the time such account ac-
crued.
The act of 2d December, 1813, declares that no person or per-
sons 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 per-
son or persons claiming under him, her or them, hereafter recover
any such parts thereof as may have been since granted, from any
person or 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.
No saving or exception in any statute of limitations in this state
providing for the claims of persons resident beyond seas, shall
operate or be so construed as to benefit any persons whose grants
have issued prior to the revolutionary war, and who are novv sub-
jects of the crown of Great Britain or other foreign nations.
264
LUNATIC.
And by the act of the 18th December, 1817, it is'provided, thai
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 per-
mitted to construe said act against ideots, lunatics or infants as
heretofore construed j 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 dis-
abilities of such persons are removed, or from the time of the ar-
rival of such infants to the age of twenty-one years: any law, cus-
torn, or usage to the contrary notwithstanding.
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 pri-
vilege, right, or exemption, to any person or persons who may re-
side in either of the United States or the territories thereof, or be-
yond seas or elsewhere, other than those enjoyed by the citizens re-
sident within the limits of this state.
LUNATIC.
A lunatic or person insane, without lucid intervals, shall not be
found guilty of any crime, with which he or she may be charged.
Provided, the act so charged as criminal, have been committed in
the condition of such lunacy or insanity.
An idiot shall not be found guilty or punished for any crime or
misdemeanor, with which he or she may be charged.
Any person counselling, advising, or encouraging, an infant
under the age of nine years, lunatic or idiot, to commit ah offence,
shall be prosecuted for such offence when committed as principal,
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. P. C. p. 92, 93. See
Executors and Administrators.
MAIM.
265
MAIM.
In all cases the killing or maiming a slave or person of colour
shall be put upon the same footing of criminality as the killing or
maiming a white man or citizen.
Mayhem shall consist in unlawfully depriving a person free or,
slave, of a member, or disfiguring or rendering it useless.
If any person shall unlawfully cut out or disable the tongue, put
out an eye, silt the nose, ear, or lip, or cut off or disable a limb or
^member, with an intention in so doing to maim or disfigure such
person, or shall voluntarily, maliciously, and of purpose, pull or
put out an eye or eyes, while fighting or otherwise, every such per-
son shall be guilty of mayhem.
A person convicted of cutting out or disabling the tongue, with
the intention as expressed in the previous section ; shall be pun-
ished by confinement and hard labour in the penitentiary for a
term not less than two years nor longer than seven years.
A person convicted of putting out an eye, with the intention or
voluntarily or maliciously, as before expressed, in fight or other-
wise, shall be punished by confinement and hard labour in the
penitentiary for any time not less than one year nor longer than
five years. And a person convicted of putting or pulling out the
eyes of another, or the eye of another, having but one eye, with a
similar intention, or voluntarily or maliciously while fighting or
otherwise, shall be punished by solitary confinement and labour,
for and during the term of his natural life.
A person convicted of biting, slitting, or cutting off the nose,,
ear, or lip of another, with tjie intention as before expressed,
shall be-punished by confinement at hard labour in the peniten-
tiary, for a term not less than one year nor longer than three
years.
A person convicted of cutting off or disabling any limb or mem-
ber of another, not herein designated, with intention as before ex-
pressed, shall be punished by imprisonment and labour in the peni-
tentiary for a term not less than one year nor longer than five
years. P. C. p. 98 to 100.
2 L
266
MALICIOUS MISCHIEF
MALICIOUS MISCHIEF.
If any person or persons shall maliciously or without authority
cut down, remove, or destroy any beacon or beacons, buoy or
buoys, erected by any commissioner of pilotage, or other person or
persons, duly authorised for that purpose, shall be punished, on
conviction, by confinement in the penitentiary, for any time not
less than three years nor more than five years.
Any person or persons, who shall wilfully and maliciously set
fire to, or burn any stack or stacks of corn, grain, straw, or hay,
shall on conviction be sentenced to pay a fine equal to twice the
value of the stack or stacks so set fire to or burnt, and to undergo an
imprisonment in the penitentiary at hard labour for any time not
exceeding three years.
If any person shall wilfully and maliciously set on fire or cause
to be set on fire, any woods, lands, or marshes within this state,,
so as thereby to occasion loss, ^damage, or injury to any person,
he or she shall on conviction be sentenced to be imprisoned in the
common jail of the county or in the penitentiary.
If any person shall wilfully and maliciously set fire to any fence
or fences, inclosure or inclosures, or cause and procure the same
to be done ; he or sjie, on conviction, shall be sentenced to pay a
fine not exceeding five hundred dollars, and be imprisoned at the
discretion of the court.
If any person shall unlawfully and maliciously break down,
open, cut through, injure or destroy any bridge, river or meadow
bank, rice-dam, mill-dam, or other dams or banks, every such per-
son so offending, shall, on conviction, be sentenced to pay a Jine
or be imprisoned at the discretion of the court.
If any person shall maliciously maim, or kill any horse, bull,
steer, ox, cow, calf, heifer, or any animal or animals falling under
the description as before given of horses or cattle, or shall mali-
ciously kill a hog or hogs, any such person so offending, shall, on
conviction, be sentenced to pay a Jine, or be imprisoned at the dis-
cretion of the court.
If any person shall maliciously injure or destroy any turnpike
gate or gates, or any post or posts, rail or rails, wall or walls, or
any chain, bar or other fence, belonging to any turnpike gate, or
MAL-PRACTICE.
2 67
any hou.se or houses, to b,e erected for the use of any such turn-
pike gate or gates, or shall wilfully and maliciously injure and de-
stroy locks or other works erected to protect and secure the navi-
gation of rivers, every such person so offending, shall on convic-
tion be sentenced to imprisonment in the penitentiary at hard la.-
bour, for any time not exceeding three years.
If any person shall wilfully and maliciously burn, or set fire to
any ship, boat or other vessel, above the value of two hundred
dollars, along side of any wharf, or at anchor in any river of this
state, or within any of its waters, or if any person shall wilfully
and maliciously make, or be assisting in the making any hole in
the bottom, side, or any other part of any ship, boat, or vessel,
above the value aforesaid, or do any other act tending to the loss
or destruction of such ship, boat or vessel at anchor or lying as
aforesaid; every person so offending shall* on conviction, be sen-
tenced to pay a fine not exceeding one thousand dollars, and un-
dergo an imprisonment in the penitentiary at hard labour for any
period of time not exceeding ten years.
All other acts of malicious and fraudulent mischief not here
enumerated, but standing upon the same footing of reason and
justice, or which are indictable offences by the laws in force in this
state, shall be punished by fine or imprisonment in the commg^i
jail of the county. P, C. p. 131 to 133,
MAL-PRACTICE.
Any justice of the peace charged with mal-practice in office, by
using of oppression, tyrannical partiality, or any other conduct un-
becoming his character as an upright magistrate, in the adminis-
tration, and under colour of his office, shall upon conviction be
sentenced to pay a fine, or be imprisoned in the common jail of
the county, as the court may order and direct, and also be removed
from office, P. C. p. 122,
Manslaughter, See Homicide♦
268
MARRIAGE.
MARRIAGE.
The clerics of the courts of ordinary, in the several couuties, shall
grant marriage licences, directed to any judge, justice of the inferior
court, justice of the peace, or minister of the gospel, to join persons
of lawful age and authorised by the Levitical degrees, to be joined
together in matrimony ; and where such persons intending to marry
shall have the banns of marriage published three times in some pub-
lie 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 j and any person marrying any couple without such
license or publication of such banns, shall forfeit five hundred dol-
lars, 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. M. & C. Dig. p. 220.
It shall be the duty of all ministers of the gospel, judges, jus-
tices of the inferior courts or justices of the peace, who shall
hereafter join together any persons in the bonds of matrimony, to
make a return on the marriage license of the actual inter-marriage
of the parties, and the day in 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 ask and receive the sum of twenty-five cents,
which shall be paid when such license shall be granted; which re-
gister, or a certified copy thereof, shall be admitted as evidence of
such marriage in any court where the solemnization of such mar-
riage shall be called in question. Clay. Dig. p. 261.—For form of
marriage see Appendix, title Matriage.
MISDEMEANOR.
269
MILLS.
All owners or occupiers of mills shall well and sufficiently grind,
or cause to be well or 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 witness, forfeit and pay
a sum not exceeding fifteen shillings to the party injured, recover-
able with costs before a justice of the peace of the county where
such offence shall be committed: Provided always, That every
owner or occupier of a mill, may grind his or her own grain at
any time. M. & C. Dig. p. 363.
If any person shall unlawfully and maliciously break down,
open, cut through, injure or destroy any bridge, river, or meadow
bank, rice dam, mill dam, or other dams or banks, every such per-
son so offending, shall, on conviction, be sentenced to pay a fine,
or be imprisoned at the discretion of the court. P. C. p. 132.
MISDEMEANOR.
This word, in its usual acceptation, is applied to all those crimes
and offences for which the law has not provided a particular name,
and they may be punished according to the degrees of the offence,
by fine or imprisonment, or both. Barl.
A crime or misdemeanor shall consist in a violation of a public
law, in the commission of which there shall be an union or joint
operation of act and intention, or criminal negligence. P. C. p. 92.
If any person shall be charged with voluntary or involuntary
manslaughter, happening in consequence of an unlawful act, it may
be lawful for the attorney or solicitor general to waive the felony
by leave of the court, and to proceed against and charge such per-
son with a misdemeanor, and such person, on conviction, for said
270
MISDEMEANOK.
misdemeanor, shall be punished by paying a fine, to be appropri-
ated as the court may direct, not exceeding one thousand dollars,
or be imprisoned in the common jail, or both; and the attorney or
solicitor general may, without obtaining leave of the court, charge
the felony and misdemeanor in the same indictment, and the jury
by whom the said person shall be tried, may find said person guil-
ty of either charge. Ib. p. 99.
If any person shall rescue another in legal custody on criminal
process, such person shall receive the same punishment as the per-
son rescued would, on conviction, be sentenced to receive, and if
the person so rescued, shall not have been tried or shall have been
acquitted, it shall be lawful to charge the person rescuing, as for a
misdemeanor, and upon conviction, he shall be imprisoned in the
common jail of the county for any period of time not exceeding one
year, as the court shall or may order and direct. Ib. p, 119.
If the principal thief or thieves cannot be taken, so as to be pro-
secuted and convicted, it shall and may be lawful to prosecute any
person buying or receiving any goods stolen by such principal
thief or thieves, knowing the same to be stolen, as for a misde-
meanor, although the principal thief or thieves be not before con-
victed, or whether he or they are amenable to justice or not; and
on conviction, ever/ person so buying or receiving stolen goods,
knowing them to be stolen, shall undergo an imprisonment in the
penitentiary, at hard labour, or in solitude, for any time not ex-
ceeding five years ; and this prosecution and punishment shall ex-
empt the offender from being tried and punished as accessory, if
such principal thjef or thieves shall be afterwards taken, and con-»
victed. Ib. p. 121.
If two or more persons assemble, for the purpose of disturb-
ing the public peace, or committing any unlawful act, and do not
disperse upon being desired or commanded so to do, by a judge,
justice, sheriff, constable, or other public officer, persons so offend-
ing, shall be guilty of a misdemeanor, and on conviction, shall be
fined or imprisoned in the common jail of the county, as the court
may order and direct. Ib. p. 123.
NUISANCE.
211
MISPRISION OF TREASON.
Treason, in the second degree, shall consist in the knowledge
and concealment of treason, without otherwise assenting to or par-
ticipating in the same. The punishment of treason in the second
degree, shall be solitary confinement, or hard labour in the peni-
tentiary, for any term not less* than three years, nor longer than
seven years, P. C. p. 95.
Mittimus. See Commitment.
Murder. See Homicide.
Mute. See Arraignment.
NUISANCE,
Nuisances are the doing a thing to the annoyance of all the cit-
izens, or the neglecting to do a thing which the common good re-
quires.
Common nuisances are such inconvenient or troublesome of-
fences 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 giv-
ing 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 obstructions, or by want of reparations, for both of these
the person so obstructing, or such persons as are bound to repair
272
NUISANCE.
ajid cleanse them, may be indicted and fined, and distrained
to amend and repair them.
Where a house is erected, or inclosure made tipon any part of
the public lands, or of a road or common street, or public water,
it is called pur presture.
All those kinds of nuisances, which, when injurious to a private
man, are actionable, are, when detrimental to the public, punish-
able by public prosecution, 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, gam-
ing houses, booths, and stages for rope dancers, mountebanks, and
the like, are public nuisances, and may upon indictment be sup-
pressed and fined. Inns or ordinaries in particular, may be in-
dieted, suppressed, and the keeper thereof fined, for refusing to en-
tertain a traveller without a very sufficient excuse.
Also eaves droppers, or such as listen under walls or windows
or the eaves of a house, to hearken 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 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 any thing out of his house into the street or common
highway, to the damage of any individual or to the common nui-
sance of the citizens ; for he hath the superintendance and charge
of all his household.
All nuisances not herein mentioned, which tend to annoy the
community, or injure the health of the citizens in general, or to
corrupt the public morals, shall be indictable and punishable by
fines or imprisonment, at the discretion of the court. And any
nuisance which tends to the immediate 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 removed or 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, who shall be summoned,
sworn and impannelled for that purpose, which order shall be di-
rected to and executed by the sheriff of the county or his deputy;
and if the nuisance exist in a town or city under the government
OATHS.
273
of a mayor, intendant, aldermen, wardens, or a common council,
such nuisance, by and with the advice of said aldermen, wardens
or council, may be removed or suppressed by order of said mayor
or intendant; which order shall be directed to, and executed by
the sheriff or marshal of said town or city, or his deputy, and rea-
sonable notice shall in every case be given to the parties interested,
of the time and place of meeting of such justices and freeholders,
or of such mayor, intendant and aldermen, wardens or council.
P. C. p. 127.
OATHS.
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 engagement to speak the truth as he hopes to be saved
in the way and method of salvation pointed out in that blessed
volume ; apd in further token that if he should sjverve from the
truth, he may justly be deprived 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 4 So help me God,' shall
kiss the holy gospels as a seal of confirmation to the said engage-
ments.
Where persons are conscientiously scrupulous of taking a book
oath, they may affirm ; for which see Affirmation.
All officers civil and military who may be appointed after the
first day of January next in this state, shall take and subscribe the
following oath, in addition to the oath heretofore prescribed : I,
A. B. do solemnly swear in the presence of Almighty God, that
I have not since the first day of January, 1819, been engaged in a
duel either directly or indirectly, either as principal or second, or
in any other character whatever in this state. Act. 1818, p. 193.
2 M
OATHS
Oath of the Governor.
" 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 abilities, preserve, protect, and defend
the said state, and cause justice to be executed in mercy there-
in, according to the constitution and laws thereof." M. 8t C. Dig.
26.
Oath of a fudge of Superior Court.
" I do solemnly swear (or affirm), 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 the duties incumbent on me as a judge of the superior
courts of this state according to the best of my abilities and un-
derstanding, and agreeable to the laws and constitution of this
state and the constitution of the United States. So help me
God."
Oath of a fustice of Peace.
You do swear that in the office of a justice of peace in and for
the 216th district, in the county of Clark, in all and eVery the ar-
tides in the commission of the peace enjoined and to you direct-
ed, you will do equal right to the poor and rich according to your
knowledge, and the laws, statutes, and acts of assembly of force
in the said state. You shall not be of counsel to any person in
any quarrel depending before you: and you shall according to the
directions of the several acts of assembly, truly account for and
pay or cause to be paid all the fines and forfeitures Which shall be re-
covered before you. You shall not spare any one for any gift or other
cause, nor take any thing for doing the business of your office of
justice of the peace, but the fees and allowances accustomed and
fixed by act of assembly : You shall not direct nor cfause to be di-
rected any warrant by you made to the parties themselves, but to
the constables of the said parish or other the stateVofficers or in-
different persons to execute the same : And in all things you
shall well and truly do and execute the office of a justice of peace
OATHS.
2 75
Oath of Sheriffs.
" I do solemnly 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 all things well and truly and without malice or par-
tiality perform the duties of the office of sheriff of during my
continuance in office; and take only my lawful fees: So help me
God." M. & C. Dig. 305.
Oath of Constables.
" I do solemnly swear for affirm) that I will duly and faithfully
perform all the duties required of me as constable of the county
of —r— according to the best of my abilities and understanding."
M. & C. Dig. 2p2. '
Oath of Receiver of Tax Returns.
" I A. B. do solemnly swear (or affirm) that I will truly and
faithfully perform the duties of receiver of returns of taxable pro-
perty in the county to which I am appointed, as required of me
by this act, and will not receive any return but on oath or affirma-
tion." Clay. Dig. 230.
Oath of Tax Receiver.
"I, A. B. appointed collector of tax for the county of , do
solemnly swear that I will faithfully discharge the duty required
of me bylaw." Ib. 231.
Oath of persons giving" in Taxable Property.
" I do swear (or affirm, as the case may be) that the ae-
count which I now give in, is a just and true account of all the
taxable property which I was possessed of, held or claimed on the
first day of January last, or was interested in or entitled unto
either in my own right or the right of any other person or per-
sohs whatever, as parent, guardian, executor, administrator, agent
or trustee, or in any other manqer whatever, according to the best
276
OATHS.
Of my knowledge, information, or belief, and that I will give a
just and true answer to all lawful questions that may be asked
me touching the same, and all this I declare without any equivo-
cation or mental reservation whatever; so help me God.1' Ibid.
232.
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 any wise been altered, and that the
owner to me is unknown. Ib. 7.
Oath of a valuer of Strays.
You do swear that you will well and truly view and appraise
the stray (or strays, as the case may be) in the summons to you
directed, without favour or partiality, according to your skill and
ability. So help you God.
Oath of Clerks.
" I do solemnly swear (or affirm) that I will truly and faithfully
enter and record all the orders, decrees, judgments and other pro-
ceedings of the superior (or inferior) court of the county of ,
and all other matters and things which by 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 under-
standing." M. & C. 302.
Oath of Members of the Legislature.
" I, A. B. do solemnly swear, (or affirm, as the case may be,,
that I have not obtained my election by bribery, treats, 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 and 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 ahd prosperity of this state, and
OATHS.
277
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 j and that I will support the con-
stitution of the United States." M. & C. 23.
Oath to the United States.
I, A. B. do solemnly swear, (or affirm, as the case may be,)
that I will support the constitution of the United States. Act
of Congress, 1st June, 1^89.
Oath of Insolvent Debtors.
" 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 con-
tracts whatsoever, my wearing apparel, bedding for myself and
family, and the working tools or implements of my trade or calling,
together with the necessary equipments for a militia soldier ex-
cepted, other than are contained in this 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, es-
tates, 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." Clay. Dig. 22.
Oath of a Witness to prove a Will.
A. B. You swear that you saw C. D. sign, seal, publish, and de-
clare this writing to be and contain his last will and testament.
That at the time thereof, he was of sound disposing mind and
memory. And that he did it freely, without compulsion, to the
best of your knowledge. So help you God.
Oath of Executors and Administrator.
" I do solemnly swear that this writing contains the true last
will of the within named A. B. deceased, so far as I know or be-
lieve, and that I will well and truly execute the same, by paying
278
OATHS.
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 wilt make a true and perfect inventory of
all such goods and chattels. So help me God."
" I do solemnly swear (or affirm) that A. B. deceased died with-
out any will, as far as I know or believe, and that I will well and
truly administer on all and singular the goods and chattels, rights
and credits of the said deceased, and pay all his just debts, as far
as the same will extend and the law requires me ; and that I will
make a true and perfect inventory of all and singular the goods
and chattels, rights and credits, and a just return thereof when
thereunto required. So help me God." M. 8c C. Dig. 222.
Oath of Appraisers.
u You A. B. C. D. E. F. do swear that you will make a just
and true appraisement of all and singular the goods and chattels
(ready money only excepted) of G. H. deceased, as shall be pro-
duced by I. K. the executor or administrator of the estate of the
said G. H. deceased, and that you will return the same, certified
under your hands, unto the said I. K. executor or administrator,
within the time limited by law."
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. de-
fendant, and a true verdict give according to equity, and the opin-
ion you entertain 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." Act.
1811. p. 13.
Orphans. See Executors.
Overseer. See Roads.
Partition. See Executors.
PATROLS.
Z79
PATROLS.
Every captain or commanding officer of a company of foot
militia throughout this province is hereby authorized, empowered
and required, severally and respectively, to summons together his
inferior officers if any such there be; and they shall in concert sub-
divide and distinguish his company district, into as many other
convenient patrol divisions, as they shall think most proper and
consistent with the extent and situation of their general company
district, and so as the riding over any such patrol division may
not exceed twelve miles in extent, which said sub-divided divi-
sion severally and respectively, shall thenceforth be the patrol di-
visions, unless the same shall be thought necessary to be altered
by the officers as aforesaid, and wherein the owners of settled plan-
tations, as well as the other inhabitants of any such patrol division,
as well alarm-men as others of horse and foot between the age of
sixteen and sixty years, shall be subject to the patrol duty of that
division, and shall either by themselves in person, or by others
employed for that purpose do their patrol duty regularly and sue-
cessively according to the true intent and meaning of this act;
and in case any captain or commanding officer shall omit or fail to
sub-divide and distinguish his company district in manner herein
before enjoined, or afterwards at any muster day, or within five
days after such muster day, shall neglect to prick off the several
patrols as is hereinafter directed, that then every such captain or
commanding officer so failing, shall respectively be subject to and
pay the penalty of five pounds sterling, to be recovered by war-
rant of distress under the hand and seal of any justice of the peace
for the district where such offence shall be committed, and sale of
the offender's goods; and which sum shall be paid to the com-
missioners of the roads within such district, and by them applied
towards repairing the bridges and cause-ways within the same ;
and that the owners of settled plantations and inhabitants within
each company district, may the better know to what patrol divi-
sion they severally belong, the captains and commanding officers
as aforesaid, shall within ten days after making out the same, cause
copies thereof signed by them to be affixed at the church and
meeting house doors, or other public places in their several dis-
280
PATROLS.
tricts, and shall cause another copy thereof to be entered in a book
by the clerk of their company, that any person concerned may
from time to time have recourse to the same. And as all persons,
as well women as men, who are or maybe owners of settled plan-
tations in any district, ought in justice to contribute to the service
and security of such district. Be it therefore enacted, by the au-
thority aforesaid, That the captains or commanding officers of
each company of foot militia, shall in their districts make out and
keep from time to time, a special patrol list for every sub-divided
and distinct patrol division, in which list shall be inserted the names
of all owners of settled plantations being within the same, as well
women as men, and as well alarm men as others, as also the
names of all the male white inhabitants: Provided,, that every per-
son having several plantations settled in this province shall not be
' subject to or obliged to do patrol duty in those divisions where
such plantations lie, other than in such in which he or she shall
usually reside : Provided also, that the masters and omployers of
all white male servants who by this act are obliged to do patrol
duty, shall and they are hereby directed and obliged to furnish
such servants with a horse and furniture for such service, and
that under the penalty of one pound, to be recovered and applied
in like manner as the penalties on captains or commanding officers
in this act before mentioned.
All persons, male and female, whose names shall be enlisted as
aforesaid, shall be liable to perform the patrol duty of their re-
spective divisions severally, successively, and in turns; and on
every muster day the captains or commanding officers of the se-
veral companies of foot militia shall, out of every patrol list made
out as aforesaid, prick off the names of any rfumber not exceeding ten
persons, as well women and men, inhabitants and owners of and
residing upon plantations as aforesaid, all of whom shall by them-
selves or others employed and provided for that purpose, seve-
lally and respectively do and perform the patrol duty herein di~
rected, from such muster day until the next ensuing muster day,
regularly, equally, and successively, the said captains or com-
manding officers as aforesaid, always choosing, and they are here-
by directed to choose the nearest set of inhabitants set down in
the patrol list as aforesaid to do the duty together, that they may
be enabled to meet and assemble with the better conveniency and
expedition: Provided always, that it shall and may be lawful for
any person or persons liable to do and perform the patrol duty
PATROLS.
,281
(prescribed by this act, and who may not choose to do duty in person,
to employ a sufficient person to do, perform, and undertake such
duty on his, her, or their behalf, when their names shall be prick-
ed off as aforesaid ; Provided, that any person liable to do and
perform patrol duty as prescribed in the above recited act, who
shall refuse or neglect to do and perform the same, shall forfeit
and pay a sum not exceeding five dollars for each offence, to he
adjudged by a majority of the militia officers of the company dis-
trict where the offence shall be committed, and levied by distress
and sale of the offender's goods under the hand and seal of the cap-
tain or commanding officer of such company, to be paid over to
the inferior court for the use of the poor of the county where such
offence shall be committed, unless sufficient excuse be made to the
officers of such company on their next ensuing muster day. And
it shall be the duty of the commanders of patrols to make a just
and true return of all defaulters in their respective districts to the
captain or commanding officer of the company on the muster' day
after they shall have been appointed.
The captain or commanding officer of every company shall have,
power in their several districts from time to time to appoint one
good and discreet person from among the persons so pricked off to
do patrol duty as aforesaid, to be their commander, as soon as
their names shall be so pricked off as aforesaid ; and if any per-
son shall have been regularly appointed to command the patrol,
agreeably to the above recited act, who shall refuse to accept of
such command, or after acceptance thereof shall refuse or neglect
to do his duty, such person so offending shall for every such of-
fence forfeit and pay a sum not exceeding ten dollars, to be ad-
judged by a majority of the officers of the company and levied by
distress and sale of the offender's goods, under the hand and seal
of the captain or commanding officer of the company, and paid
over to the inferior court for the use of the poor of the county
where such offence shall be committed.
Every person pricked off, or appointed, or undertaking as a
proxy for any other person liable to serve in the said patrol, in pur-
suance of or by virtue of this act, shall provide for himself and
keep always in readiness and carry with him on his patrol service,
one good gun or pistol in order, with six cartridges suitable for
such gun or pistol, and one good cutlass, under the penalty of a
sum not exceeding ten shillings, for want of any such arms or am-
munition, at such times and places as they shall be appointed by
2 N
282
PATROLS.
their respective commanders, in their several divisions? to whose
orders they shall on all occasions be respectively obedient during
their time of service, on pain of incurring a fine not exceeding
twenty shillings, to be levied by warrant under the hand and seal
of the captain or commanding officer of the company from which
such patrols shall be pricked off, as is herein before mentioned.
Every patrol shall go to and examine the several plantations in
their divisions at such times as they in their discretion shall see
fit, one night in fourteen at least, and may and shall take up all
slaves which they shall see without the fences, or cleared ground
of their owner's plantations who have not a ticket or letter, or other
token to shew the reasonableness of their absence, or who have
not some white person in company to give an account of his, her,
or their business ; and such patrol may correct every such slave
or slaves by whipping with a switch, whip, or cowskin, not exceed-
ing twenty lashes: Provided, That if any patrol man not having
sufficient cause, shall beat and abuse any slave peaceably and
quietly being in his master's plantation, or found any where out
of the same, having lawful or other token as is herein before di-
rected, such patrol man shall for every such offence forfeit and
pay the sum of five shillings, and in case of such slave being
maimed, disabled, or killed, shall be subject to the several penal-
ties inflicted for such offence, by the act entitled " An act for the
better governing negroes and other slaves in this province, and to
prevent the inveigling or carrying away slaves from their mas-
ters or employers." And the said patrols shall have full power
to search and examine all negro houses for offensive weapons and
ammunition, and on finding any such, contrary to the before re-
cited act, shall proceed as is therein directed j and if any patrol
shall see any fugitive slave or slaves endeavouring to avoid them,
by hiding or running into, or shall hear' of any such being har-
boured in any dwelling house of a white person, the commander
shall ask leave of the owner of the said dwelling house, or of some
white person then there, to search for, examine and apprehend the
said fugitive slave, or that the said owner should deliver up such
slave or slaves; and in case the said owner or other white person
so entreated shall refuse to deliver up such fugitive slave or slaves,
or to suffer search to be made for them, the said patrol or any other
white person having seen such slaves enter, such person so re-
fusing shall forfeit the sum of five pounds for every such of-
fence.
PATROLS.
283
Any person whatever who shall be drunk during the time of his
service on the patrol, shall be subject to the penalty of a sum not
exceeding ten shillings to be recovered by warrant from any jus-
tice of the peace upon oath first made thereof, the same to be ap-
plied to the use of the highways in the respective districts where
the offence shall happen.
The field officers of each respective regiment of foot militia
within this province, or any of them, shall be and they are hereby
directed and empowered, to give such directions and orders, from
time to time, to the several captains and other officers commanding
companies in the regiments to which such field officers belong, as
they shall judge necessary for the more effectually doing and per-
forming the several duties by this act required by them to be done
and performed, and on failure thereof by the said several captains
and officers commanding companies aforesaid, the said field offi-
cers, or any of them, are hereby directed and enjoined to cause
the several fines and penalties mentioned in this act to be strictly
levied, and applied in the manner herein before mentioned.
If any captain or other officer, constable, patrolman or other
person, shall be sued, arrested or impleaded for any matter or
thing which he shall do or cause to be done, by virtue of or in
pursuance of- this act, it shall and may be lawful for every such
captain or other officer, constable, patrolman or other person, to
plead the general issue, and give this act and the special matter in
evidence on the trial j and if a verdict shall pass against the plain-
tiff or plaintiffs, or that such plaintiff or plaintiffs shall suffer a
non-suit, or discontinue his or their action or suit, then, and in
every such case, the court, where such action shall be depending,
shall tax and allow to the defendant, his or their double costs in
every such suit or action: Provided always, That this act and
every thing herein contained, shall continue and be in force only
for the term of three years, and from thence to the end of the
next session of the general assembly, and no longer.
It shall not be lawful for any slave, unless in the presence of
some white person, to carry and make use of fire arms, or any of-
fensive weapon whatsoever, unless such slave shall have a ticket
or license in writing from his master, mistress, or overseer, to
hunt and kill game, cattle, or mischievous birds, or beast of prey,
and that such license be renewed once every week, or unless there
be some white person of the age of sixteen years or upwards in
the company of such slave, when he is hunting or shooting, or
284
PATROLS.
that such slave be actually carrying his master's arms to or from
his master's plantation, by a special ticket for that purpose, or un-
less such slave be found in the day time actually keeping off birds
within the plantation to which such slave belongs, lodging the same
gun at night within the dwelling-house of his master, mistress, or
white overseer: Provided, always, That no slave shall have liberty
to carry any gun, cutlass, pistol, or other offensive weapon, abroad,
at any time betwTeen Saturday evening after sunset, and Monday
morning before sunrise, notwithstanding a license or ticket for so
doing.
In case any or either of the patrols established, or to be estab-
lished within this province, by virtue of the said act, on searching
and examining any negro house for offensive weapons, fire arms
and ammunition, shall find any such, or in case any person shall find
any slave using or carrying fire arms or other offensive weapons,
contrary to the intent and meaning of this act, such patrol, or per-
son or persons, may lawfully seize and take away such offensive
weapon, fire arms and ammunition ; but before the property thereof
shall be vested in the person or persons who shall seize the same,
such person or persons shall, within three days next after such
seizure, go before a justice of the peace, and shall make oath of
the manner of taking thereof, and if such justice of the peace af-
ter such oath made, or upon due examination, shall be satisfied
that the said fire arms, offensive weapons, or ammunition, shall
have been seized according to the directions and agreeable to the
true intent and meaning of this act, the said justice shall by cer-
tificate under his hand and seal, declare them forfeited, and that
the property is lawfully vested in the person or persons who seized
the same: Provided always, That no such certificate shall be grant-
ed by any justice of the peace, until the owner or owners of such
fire arms or other offensive weapons so dbized as aforesaid, or the
overseer or overseers who shall or may have the charge of such
slave or slaves from whom such fire arms or other offensive weap-
ons so taken or seized, shall be duly summoned to show cause
why the same should not be condemned as forfeited, or in case of
non-appearance, until three days after the service of such sum-
mons, and oath made thereof before the said justice.
No person whatsoever shall permit or suffer any slave under his
or their care or management, and who lives or is employed in any
town in this pi o\ ince, to go out of the limits of the said town or
towns, or any such slave who lives in the country to go out of the
PATROLS.
285
plantation to which such slave belongs, or in which plantation such
slave is usually employed, without a ticket signed or subscribed
by the master or other person having the care or change of such
slave, or by some other person by his or their order, direction
and consent; and every slave who shall be found out of any
town in this province, if such slave lives or is usually employed
there, or out of the plantation to which such slave belongs, or in
which such slave is usually employed, if such slave lives in the
country, without a ticket as aforesaid, or without a white person in
his or her company, shall be punished with whipping on the bare
back, not exceeding twenty lashes.
If any person or persons shall presume to give a ticket or li-
cence to any slave who is the property or under the care or charge
of another, without the consent of the owner or other person hav-
ing the charge of such slave, he, she or they shall forfeit to the
owner a sum not exceeding five pounds over and above the dam-
age that may accrue to such owner by the absence of such slave.
It shall and may be lawful for any justice assigned to keep the
peace in this province, within his respective parish, upon his own
knowledge, or information received, either to go in person, or by
warrant or warrants, directed to any constable or other person, to
command their assistance, any number of persons as they shall see
convenient, to disperse any assembly or meeting of slaves, which
may disturb the peace, or endanger the safety of the citizens ; and
every slave which shall be found and taken at such meeting as
aforesaid, shall and may, by order of such justice, immediately be
corrected without trial, by receiving on the bare back not more
than twenty-five stripes with a whip, switch or cowskin, and such
justice, constable, or person as aforesaid, are hereby authorised
and empowered to search all suspected places for arms, ammuni-
tion, or stolen goods, and to apprehend and secure all such slaves
as they shall suspect to be guilty of any crimes or offences what-
soever, and to bring them to speedy trial, according to the direc-
tion hereafter given by this act. And in case any constable or
other person shall refuse to obey or execute any of the warrants or
precepts of such justices, or any of them, within their several
parishes, or shall refuse to assist the said justice or constable, or
any of them when commanded and required, such person and per-
sons shall forfeit and pay for every such offence, a sum not ex-
ceeding five pounds sterling, to be recovered by a warrant under
the hand and seal of any other justice of the peace.
286
PATROLS.
It shall not be lawful for any slave to carry and make use of fire
arms, or any offensive weapon whatsoever, unless there be some
white person of the age of sixteen years or upwards, in the com-
pany of such slave when he is hunting or shooting, or unless such
slave be found in the day time actually keeping off birds or killing
beasts of prey within the plantation to which such slave belongs,
lodging the same gun at night within the dwelling house of his
master, mistress, <?r white overseer; and in case any person shall
find any slave using or carrying fire arms or other offensive wea-
pon, contrary to the true intention of this act, such person may
lawfully seize and take away such offensive weapon or fire arms j
but before the property thereof shall be vested in the person who
shall seize the same, such person shall within forty-eight hours
next after such seizure, go before the next justice of the peace and
shall make oath of the manner of the taking thereof, and if such
justice of the peace, after such oath shall be made, or if upon any
other examination' he shall be satisfied that the said fire arms or
other offensive weapons shall have been seized according to the
directions and agreeable to the true intent and meaning of this act,
the said justice shall, by certificate under his hand and seal, de-
clare them forfeited, and that the property is unlawfully vested in
the person who seized the same. Provided always, That no such
certificate shall be granted by any justice of the peace until the
owner or owners of such fire arms or other offensive weapon so
seized as aforesaid, or the overseer or overseers who shall or may
have the charge of such slave or slaves from whom such fire arms
or other offensive weapon, so taken or seized, shall be duly sum-
moned to shew cause why the same should not be condemned as
forfeited, or until forty-eight hours after the service of the said
summons, and oath made of the service thereof before the said
justice.
As it is absolutely necessary to the safety of this province, that
all due care be taken to restrain the wandering and meeting of
negroes and other slaves at all times, and more especially on Sa-
turday nights and Sundays, and other holy days, and their using
and carrying mischievous and dangerous weapons, or using and
keeping of drums, horns, or other loud instruments, which may
call together or give sign or notice to one another of their w icked
designs and intentions, and that all masters, owners, and others,
may be enjoined diligently and carefully to prevent the same, Be
it enacted, That it shall he lawful for any person whomsoever, to
PEDLARS.
287
apprehend and take up any negro or other slave that shall be
found out of the plantation of his or their master or owner, at
any time, especially on Saturday nights, Sundays, or other holy
days, not being on lawful business, and without a ticket from their
master, or not having a white person with them, and the said
slave or slaves met or found out of the plantations of his or their
master or mistress, though with a ticket, if he or they be armed
with such offensive weapons aforesaid, him or them to disarm,
take up and whip ; and whatsoever master or owner or overseer
shall permit or suffer his or their slave or slaves, at any time here-
after, to beat drums, blow horns, or other loud instruments, or
whosoever shall suffer and countenance any public meeting or
feasting of strange slaves in their plantations, shall forfeit thirty
shillings sterling for every such offence, upon conviction or proof
as aforesaid: Provided an information or other suit be commenced
within one month after forfeiture thereof.
No men slaves exceeding seven in number shall hereafter be
permitted to travel together in any high road in this province,
without some white person with them; and it shall and may be
lawful for any person or persons, who shall see any men slaves
exceeding seven in number without some white person with them
as aforesaid, travelling or assembled together in any high road, to
apprehend all and every such slaves, and may whip them not ex-
ceeding twenty lashes on the bare back, M. & C. from p. 419 to
433. See Slaves.
PEDLARS.
It shall be the duty of every pedlar, or itinerant trader, who
shall wish to vend any goods, wares, or merchandize in this state,
to apply to the clerk of the inferior court of each county in which
he may be disposed to vend goods, and procure a license under
the seal of the county court, and such license shall entitle him or
them to the privilege of vending any goods, wares, or merchan-
dize, for the term of twelve months, within the limits of said
county; and shall pay for every such license the sum of twenty
dollars in each county, (one half for county purposes, the other
half for the use of the state,) the one half of which sum or sums,
288
PEDLAkS.
when so collected, shall be paid over by the cleric to the treasurer
of this state within six months ; they shall also pay to such clerk
the sum of two dollars for his own use : Provided nevertheless,
That there shall be one license for every wagon, cart, or other
vehicle employed or used in vending such goods, wares, or mer-
chandize j which license they shall be bound to show to any she-
riff, deputy sheriff, justice of the inferior court, justice of the
peace, or constable of this state, whenever demanded, and on fail-
ure or refusal thereof shall forfeit and pay the sum of thirty dol-
lars,—which fine shall be collected as all other fines or penalties
are.
On oath being made before any justice of the inferior court or
justice of the peace, that a violation of this law has been commit-
ted, it shall be his duty to issue a warrant from under his hand,
directed to any sheriff, deputy sheriff, or constable, commanding
them and each of them, to arrest the offender or offenders, and
seize him or them and their property, and bring him or them and
their property 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 unfound-
ed, 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 one 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 may have been committed; and
on facing to give such security shall 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 one hundred dollars for each
and every violation of this law j and the party so offending shall
stand committed until such fine or fines be paid : Provided never-
theless, That this act shall not prevent the corporation of any town
or village from exacting from such pedlar, or other itinerant trader,
a sum not exceeding five dollars per day j And provided, That
riothing herein contained shall prevent any person from trading on
the manufactures of this state. Act. 1817, p. 17, 18.
PERJURY.
289
PERJURY.
Perjury by the common law, seemeth to be a wilful false oath,
by one who, being lawfully required to depose the truth in any
judicial proceeding, swears absolutely in a matter material to the
point in question, whether he be believed or not. 1 Haw. 172.
3 Inst. 164.
If any person shall wilfully and corruptly commit perjury, or
shall by any means procure or suborn any person to commit wil-
ful and corrupt perjury on his oath or affirmation, legally admin-
istered in any judicial proceeding, matter or cause which may be
depending in any of the courts of this state, or before any judge,
justice, mayor, alderman or other magistrate, or before any notary
public, arbitrator or clerk, or in any deposition or affidavit taken
for any purpose whatever, or in any deposition taken pursuant
to the laws of this state, or of the rules, orders and directions of
any court, judge or arbitrator, or if any person in taking any other
oath or affirmation required by any act of the general assembly of
this state, shall be guilty of wilfully and corruptly making a false
oath or affirmation, or if any person shall procure or suborn to
make any such false oath or affirmation, every person so offend-
ing, shall, on conviction, be punished by imprisonment in the peni-
tentiary at hard labour or in solitude for any time not less than
three years nor longer than ten years, and shall moreover be for-
ever disqualified from being a witness in any matter in contro-
versy.
Any verdict or judgment, rule or order of court which may
have been obtained or entered up, shall be set aside and be of no
effect, if it shall appear that the same was obtained or entered up
in consequence of wilful and corrupt perjury, and it shall be the
duty of the court in which such verdict, judgment, rule or order
may have been obtained or entered up, to cause the same to be
set aside upon motion and notice to the adverse party ; but it shall
not be lawful for the said court to do so, unless the person charged
with perjury shall have been thereof duly convicted, and unless it
shall appear to the said court, that the said verdict, judgment,
rule or order could not have been obtained or entered up, without
the evidence of such perjured person, saving always to third
2 O
290
PIRACY.
persons innocent of such perjury, the fight which they may have
lawfully acquired under such verdict, judgment, rule or order,
before the same shall have been actually vacated and set aside.
If any person by wilful and corrupt perjury shall take away
the life of another, or, by such wilful and corrupt perjury, convict
another of any offence which by this code is punishable with death
or perpetual imprisonment, such person shall be punished with
death or perpetual imprisonment. P. C. p. 115, to 117.
PIRACY.
Piracy is a felonious offence against the United States. If any
person shall commit upon the high seas, or in any river, haven,
bason, or bay out of the jurisdiction of any particular state, murder,
or robbery, or any other offence, which, if committed in the body of
a county, would by the laws of the United States be punishable
with death ; or if any captain or mariner of any vessel shall pirati-
cally and feloniously run away with such vessel, or any goods or
merchandize to the value of fifty dollars, or yield up such vessel
voluntarily to any pirate ; or if any seaman shall lay violent hands
upon his commander, thereby to prevent his fighting in defence of
his vessel, or goods committed to his trust, or shall make a revolt
in the vessel; such person shall be deemed a pirate and a felon,
and on conviction, shall suffer death.
If any citizen shall commit any piracy or robbery aforesaid,
or any act of hostility against the United States or any citizen
thereof upon the high seas, under colour of any commission from
any foreign prince or state, or under pretence of any authority
from any person, such offender shall, notwithstanding the pretence
of any such authority, be deemed a pirate, felon and robber, and
on conviction, suffer death accordingly.
Accessories to piracy before the fact, shall suffer as the princi-
pal, and accessories after shall be imprisoned not exceeding three
years, and fined not exceeding five hundred dollars.
If any seaman or other person shall commit manslaughter upon
the hign seas, or confederate or attempt, or endeavour to ccriupt
any commander, master, officer, or mariner, to yield up or to run
POSSE COMITATUS.
291
away with a vessel, or with any goods, wares, or merchandize, or
to turn pirate, or to go over to or confederate with pirates, or in
any wise trade with any pirate, knowing him to be such, or shall
furnish such pirate with any ammunition, stores, or provisions of
any kind, or shall fit out any vessel, knowingly, and with a design
to trade with, or supply, or correspond with any pirate or robber
on the seas: or if any person shall any way consult, combine, con-
federate or correspond with any such pirate or robber on the seas,
knowing him to be guilty of any such piracy or robbery, or if any
seaman shall confine the master of any vessel, or endeavour to
make a revolt in such vessel, such person so offending and being
thereof convicted, shall be imprisoned and fined not exceeding
one thousand dollars. Acts of Congress, 1790.
Polygamy. See Bigamy.
Poor. See Executors.
POSSE COMITATUS.
Posse comitates, is the power of the county, consisting of all
male persons therein, whether freemen or servants, above the age
of fifteen years and able to travel. Lamb. 309.
But clergymen and sick, lame or impotent persons, are ex-
cepted.
Every justice of the peace, upon just cause, may raise this
power, or such a number as in his discretion shall appear neces-
sary, and may likewise direct in what manner they shall be arm-
ed. The persons whose assistance he shall require or command
in the name of the state, must obey upon pain of fine and impri-
sonment.
One justice may take the power of his county to suppress
rioters, without staying for the coming of another justice or the
sheriff.
£92
PRINCIPAL.
And also to pursue and apprehend traitors, murderers, robbeis,
and other felons j all breakers or disturbers of the peace, and all
persons against whom surety of the peace shall be granted. Dolt.
454.
The sheriff or under sheriff may, by the common law, take the
power of his county to execute any lawful writs or process. West,
1.17. and IV. 3. 39.
So he may to execute a justice's precept or warrant to him di-
rected.
And without any writ or precept, the sheriff, by virtue of his
office as conservator cf the peace, may raise the power of his
county to preserve the peace, if broken in his view or presence,
and to apprehend the breakers and all rioters, traitors and felons.
Dalt. 454.
A constable may take the aid of his neighbours or other persons
present, to apprehend a felon, or one who has dangerously hurt
another.
As also to execute a justice's warrant or to keep the peace, if
broken or disturbed in his presence, and to apprehend the offend-
ers and carry them before a justice.
By the common law every judge of record, sheriff, coroner,
constable, or other officer to whose office belongs the conservation
of the peace, may command and take the aid and force of others
to pacify riots or affrays, and to arrest all such who in their pre-
sence and within their jurisdiction shall endeavour to break the
peace by word or deed. 28 Echo. 3. c. 8.
PRINCIPAL.
A man may be principal in an offence in two degrees. A prin-
cipal in the first degree, is he that is the actor or absolute perpetra-
tor of the crime.
And a principal in the second degree, is he "who is present, aid-
ing and abetting the fact to be done. Which presence need not
alwaj s be an actual, immediate standing by, within sight or hear-
ing of the fact. But there may be also a constructive presence.
As vlien one commits a robbery or murder, and another keeps
watch or guard at some convenient distance.
PRISON AND PRISONERS.
293
This rule hath also other exceptions. For, in case of murder
by poisoning, a man may be a principal felon by preparing and
laying the poison, or giving it to another (who is ignorant of its
poisonous quality) for that purpose, and yet not administer it him-
self, nor be present when the very deed of poisoning is committed.
And the same reasoning will hold with regard to other murders
committed in the absence of the murderer, by means which he
had prepared beforehand, and which probably could not fail of
their mischievous effects. As by laying a trap or pitfall for an-
other whereby he is killed ; letting out a wild beast to do mischief,
or exciting a madman to commit murder, so that death thereupon
ensues. In every of these cases the offender is guilty of murder
as a principal in the first degree. For he cannot be called an ac-
cessory, that necessarily pre-supposing a principal. And the poi-
son, the pitfall, the beast, or the madman, cannot be held princi-
pals, being only the instruments of death. As therefore he must
be certainly guilty either as principal or accessory, and cannot be
so as accessory, it follows that he must be guilty as principal. And
if principal, then in the first degree. For there is no other crim-
inal; much less a superior in the guilt whom he could aid, abet, or
assist.
PRISON AND PRISONERS.
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 maintain and keep in good repair at the charge of such coun-
ty, one good and convenient court house, of stone, brick, or tim-
ber, and one sufficient jail with the necessary apartments for the
safe keeping of criminals and debtors, well secured with iron bars,
bolts and locks, and shall cause to be erected contiguous thereto,
one pillory, whipping post, and stocks.
The inferior courts in each county shall have full power and au-
thority at all times to enquire 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
294
PRISON AND PRISONERS.
that purpose, and the said courts shall have full power and autho-
rity to call on all persons, their heirs, executors, or administrators,
in theijr respective counties, who have had or may have county
monies in their hands, collected for the express purpose of build-
ing courthouses and'jails, or for any other county purpose what-
ever; and in case of neglect or refusal to pay the same, the said
court shall and are hereby required to cause executions to be is-
sued for the full amount appearing to be due in the same manner
as the treasurer is authorised by law to issue executions against
the defaulting collectors of taxes in the different counties ; and
such monies when collected, may be applied by such court to the
uses and purposes of building and repairing court houses and
jails.
The said county courts are authorised 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
courts so to do : Provided always, That the tax so to be levied by
such courts as aforesaid, shall not exceed one fourth part of the
general tax, which said monies so assessed and collected as afore-
said, 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
poor and building bridges, and the collectors shall be allowed the
same commissions and fees for such collection as is allowed by
law for the collection 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.
All monies that now are or may hereafter come into the hands
of the clerks of the superior or inferior courts, by fines or forfei-
tures, and all money arising from the sale of estrays, are hereby
made liable and subject to the draught 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 sup-
port of the poor and building bridges, at the discretion of such
courts. M. & C. 171.
No jailer shall put any person into irons unless he is confined
for a capital offence, and it is so expressed in the warrant. Clay.
Dig. 68.
PRISON AND PRISONERS. 295
It shall be the duty of the sheriff of each county, whenever a
criminal or criminals or other person or persons are confined in the
jail of the county of which he is sheriff, to furnish or procure
medical aid w henever the sickness of the person or persons con-
fined 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 of blankets and clothing for the health and comfort of
persons so confined: Provided, the person or persons so confined
have not the 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 consider-
ed as arresting or taking from the corporation of the city of Sa-
vannah, the right and controul over the jail of the county of Chat-
ham, now exercised by them under a special act of this state.
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 want of such
medical aid, fire, blankets, clothes, and cleanliness as above point-
ed out, he shall be subject to indictment for such neglect, and up-
on 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.
The jailers of the several counties of this state shall be allow-
ed to charge the sum of fifty per cent, on all charges heretofore
allowed by law.
Whenever the sheriff of any county shall have incurred any ex-
pence 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 account of the same, who shall pay the same out of any funds
belonging to said county, in preference to all other claims upon said
fund whatever. Act. 1818. p. 160, 1.
296
PUBLIC WORSHIP.
PROSECUTOR.
It shall not be lawful for any magistrate to commit a criminal
to jail for any offence against the state, without first compelling
the prosecutor to give bond and security to prosecute according to
law. Clay. Dig. 148.—See Indictment.
PUBLIC WORSHIP.
If any person or persons whomsoever shall interrupt or disturb
any congregation of white persons assembled at any church, cha-
pel, or meeting house, or any other place for public worship,
during the time of divine service, it shall be the duty of any jus-
tice of the peace, sheriff, constable, or any civil officer of the coun-
ty, 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 im-
pose a fine on such offender not exceeding five pounds, or on de-
fault of payment of the same, to commit him or them to the com-
monjaif 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.
It shall be the duty of the sheriff and other officers who may
collect the fines and forfeitures imposed by this act, to make are-
turn 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 wheiein
such offence shall have been committed. And no congregation
or company of negroes shall, under pretence of divine worship,
assemble themselves contrary to the act for regulating patrols. M.
& C. 396.
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
QUARANTINE.
297
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.
For every offence committed in violation of this act, the offen-
der or offenders shall be subject to the penalty of thirty dollars,
which shall be recoverable after the manner pointed out in the
first clause of the above recited act, which fine shall be put into
the hands of the justices of the inferior court, and become a part
of the county funds where such offence shall have been commit-
ted. Clay. Dig. p. 480.
QUARANTINE.
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, 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 appoint-
ed 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 performed; 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 di-
rections touching quarantine, as shall be made by the authority
directing the same. M. & C. 392.
Any person coming into this state, by land, or water, from any
place infected with a contagious disease, and in violation of qnar-
antine 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
at the discretion of the court. P. C. p. 129.
2 P
298
QUARANTINE.
If any person or persons whatsoever, shall presume to go on
board and return from such ship, or vessel, or boat, required to
perform quarantine, before, or during the time of quarantine,
without a license, as aforesaid, every such offender shall be com-
pelled, and in case of resistance by force and violence, be compel-
led by the person or persons appointed as aforesaid, to return on
board, such ship, or vessel, or boat, and there to remain during
the time of her quarantine, and shall afterwards 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 j and the master of such
ship, or vessel, or boat, is hereby obliged to receive and maintain
such person on board accordingly.
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 vessel, or which shall therewith be found, and to detain the
same until the quarantine shall be performed.
After the quarantine shall have been duly performed, accord-
ing 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 ship,
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 jus-
tice is hereby required 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.
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.
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 distempers being brought into this
state, Or from any port 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 com-
QUARANTINE.
299
mander in chief, by proclamation for that purpose to be issued, to
prohibit all and every person or persons coming from such infect-
ed places to enter into or come within such bounds, limits, or
lines, as shall be in such proclamation described, for and during
such time as shall be therein mentioned, and to appoint boats and
sentinels to put the same in due execution ; and the persons ap-
pointed 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 appoint-
ed 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 persons 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, vessel, or boat performing
quarantine, and to be disposed of as in that case provided.
The pilot or pilots belonging to the several ports of this state
shall, before his or their entering on board any ship or vessel de-
signed for this state, make strict enquiry of every master or com-
mander of the same, whether the plague, small pox, malignant
fever, or any other contagious distemper, be in such ships or ves-
sels, and every such master or commander is hereby strictly en-
joined, without equivocation or reserve, to give just and true an-
swers to all such enquiries of the said pilot or pilots, under the pe-
nalties hereafter mentioned and expressed, and in case the said pilot
or pilots shall upon enquiry as aforesaid, find that the plague, small
pox, malignant fever, or any other contagious distemper, be in
such ship or vessel, such pilot or pilots are hereby strictly forbid-
den and prohibited from entering therein on any pretence what-
ever : the quarantine of any person or vessels, or of their goods,
shall be of such duration and in such places and under such regu-
lations 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 Savan-
nah; and so far as respects other inlets or rivers in this state, un-
der 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, as the case may happen ; and such corpora-
tion, justices, or commissioners, are hereby fully authorised to fix
such sentinels, and guard boats, and to use all and every means in
their power to enforce this law for the purposes intended.
300
QUARANTINE.
On the notification of such corporation, justices or others here-
in 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 accord-
ingly. M. &. C. p. 393 to 395.
The foregoing regulations concerning quarantine, are contained
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 arty port or inlet from Ossabaw to Tybee, including all
inlets, rivers, and creeks within those limits.
It shall and may be lawful to and for the mayor and aldermen
of the said city, and they are hereby vested with full power and
authority to take cognizance of, and enquire into all violations of
the said act, committed within the limits aforesaid; and upon such
enquiry, 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 preferred
against him, her or them in terms of the said act, or they may
proceed against such offender or offenders in a summary manner,
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 j9.il, 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 ; any thing in the
said act contained to the contrary hereof in anywise notwithstand
ing.
QUARANTINE.
301
With respect to the other rivers and inlets of this state, the same
powers which are hereby vested in the corporation of Savannah,
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^nay
happen, and they are hereby authorized to proceed in the same
manner as is herein before mentioned, with respect to the mayor
and aldermen of Savannah.
It shall and may be lawful to and for the said mayor and al-
dermen to remove from the said city, any person or persons who
may be infected with the small-pox or other contagious disorder,
to such place or places without the limits thereof, as they may ap-
point for that purpose.
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 com-
pel 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 certificate of the health officer obtained to that effect. Clay.
Dig. p. 151, 242.
302
RAPE.
RAPE.
Rape is the carnal knowledge of a female, forcibly and against
her will.
Rape shall be punished by an imprisonment at hard labour in
the penitentiary, for a term not less than two years nor longer than
twenty years.
An assault with intent to commit a rape shall be punished by
imprisonment at hard labour in the penitentiary, for a term not
less than one year nor longer than five years. P. C. p. 100, 101.
At present there is no time of limitation fixed, within which a
woman must make information. For the offence being prosecuted
by indictment, the maxim takes place, that no time hinders the
state. But we should rarely give credit to a stale complaint.
A male infant under the age of fourteen years, is presumed by
law, incapable to commit a rape; and therefore it seems cannot
be found guilty of it. For as to this species of felony the law
supposes an imbecility of body as well as mind.
It is felony to force even a concubine or harlot. Because the
woman may have forsaken that unlawful course of life.
The party ravished may give evidence upon oath, and is in
law a competent witness. But the credibility of her testimony,
and how far forth she is to be believed, must be left to the jury,
upon the circumstances of the facts that concur in that testimony.
For instance, if the witness be of good fame; if she presently dis-
covered the offence, and made search for the offender ; if the
party accused fled for it. These and the like are concurring cir-
cumstances, which give greater probability to her evidence. But
on the other side, if she be of evil fame and stand unsupported by
others ; if she concealed the injury for any considerable time af-
ter she had an opportunity to complain; if the place where the
fact was alleged to be commited, was where she might possibly
have been heard, and she made no outcry. These and the like
circumstances carry a strong, but not conclusive presumption, that
her testimony is false or feigned.
If a rape be charged to be committed on an infant under twelve
years of age, she may be a competent \Vitness, if she hath sense
and understanding to know the nature and obligation of an oath
RAPE.
303
and even if she hath not, she ought to be heard without oath, to
give the court information, though that alone will not be sufficient
to convict the offender. But whether the child be sworn or not,
it is to be wished, in order to render her evidence credible, that
there should be some concurrent testimony of time, place, and cir-
cumstances, in order to make out the facts, and that the conviction
should not be grounded singly on the unsupported accusation of
any infant under years of discretion.
There may be therefore, in many cases of this nature, witnesses
who are competent; that is, who may be admitted to be heard, and
yet, after being heard, may prove not to be credible, or such as the
jury is bound to believe. For the jury are triers of the credibili-
ty of the witnesses, as well as of the truth of the faet.
" It is true," says a very learned judge and a good man, " that
rape is a most detestable crime, and therefore ought severely and
impartially to be punished with death. But it must be remem-
bered, that it is an accusation easy to be made, hard to be proved,
but harder to be defended by the party accused, though innocent."
He then relates two very extraordinary instances of malicious pro-
secutions for this crime that happened within his own observa-
tion ; and concludes thus, "I mention these instances, that we
may be the more cautious upon trials of offences of this nature,
wherein the court and jury may with so much ease be imposed
upon without great care and vigilanc^. The heinousness of the
offence many times transporting the judge and jury with so much
indignation, that they are over hastily carried to the conviction of
the person accused thereof, by the confident testimony of some-
times false and malicious witnesses."
304
RECOGNIZANCES.
RECOGNIZANCES.
A recognizance is a bond or obligation of record, testifying the
cognizor to owe a certain sum of money to the state, and the ac-
knowledging the same is to remain of record ; and none can take it,
but only a judge or justice, or officer of record.
If a justice compounds recognizances, and does not return
them to the court, he may be indicted.
As soon as it is taken or acknowledged, and reduced to writing
by a judge or justice, or other proper officer, it is a record.
Whenever any statute or act of assembly gives power to a jus-
. tice or justices to take a recognizance, or to bind over any man
to appear at the county or superior court, or take sureties for any
matter or cause, or where they have this latter power as incidental
to their office, (as in requiring sureties for the peace or good be-
haviour,) or wherever they have authority given them to cause a
man to do a thing, they may bind the party by recognizance, or
send him to jail if he refuses to be bound or will not find suf-
ficient sureties. In cases to be tried, or where the party is to ap-
pear in the superior court, the recognizances must be sent to that
court. In other cases, to the county courts.
The parties bound need not set their names to the recognizance.
A married woman, or an infant under the age of twenty-one
years, may not be personally bound. They must find sureties, or
be committed. Dalt.
If the sureties die, the recognizance is good against their exe-
cutors. But though forfeited, the judges can award no process
upon it. Because these records must be certified into a court.
Whatever is a breach of the peace, is a forfeiture of recogni-
zance, if it be taken for the peace or good behaviour. But of op-
probrious or affronting words and gestures are not a breach, so as
to make a man forfeit his recognizance. For though such words
or gestures may be provocations to break the peace, yet they do
not immediately tend to it, as assaulting and threatening do. 4 Inst
180,181.
If the recognizance is not forfeited, it is discharged by the
death of the cognizor.
If any judge, justice, mayor, alderman, clerk, sheriff, coroner,
or other public officer, or any other person whatever, shall steal,
RECOGNIZANCES.
3.0 5
embezzle, alter, corrupt, withdraw, falsify or avoid any record,
process, charter, gift, grant, conveyance or contract, or shall know-
ingly and willingly take off, discharge or conceal any issue, for-
feited recognizance or other forfeiture, or shall forge, deface or
falsify any document or instrument recorded, or any registry, ac-
knowledgement, or certificate, or shall alter, deface or falsify any
minute, document, book, or any proceeding whatever, of or be-
longing to any public office within this state ; or if any person shall
cause or procure any of the offences aforesaid to be committed, or
be in any wise concerned therein, the person so offending shall be
punished by imprisonment in the penitentiary at hard labour, or
in solitude for any time not less than one year, nor longer than ten
years.
If any officer, after the expiration of the time for which he may
have been appointed or elected, shall wilfully and unlawfully with-
hold or detain from his successor the records, papers, documents,
or other writings appertaining and belonging to his office, or mu-
tilate, destroy, take away or otherwise prevent the complete pos-
session by his said successor of said records, documents, papers,
or other writings, such person so offending, shall be sentenced to
pay a Jine, and to undergo imprisonment in the common jail of
the county, as the-courtmay order and direct.
If any person shall acknowledge or procure to be acknowledged
in any of the courts of this state, any recognizance, bail, orjudg-
ment, in the name of any other person not privy or consenting
thereto ; such person, on conviction, shall be imprisoned in the
penitentiary at hard labour, or in solitude, for any period of time
not exceeding three years. P. C. p. 117, 118,
Record. See Recognizances*
Religious Societies. See Public Worship^
2 Q
RENT.
RENT.
I. Mode of Collecting Rent generally.
II. In Savannah.
III. In Augusta.
I. Mode of Collecting Rent generally.
Any person who may hereafter have rent due, where the same
does not exceed thirty dollars, may make application to any jus-
tice 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, ad-
vertised and sold as in cases of other executions: Provided never-
thelessy That the party distrained shall be entitled to replevy 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.
Where property may be distrained and claimed by a third per-
son, 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.
In no case a preference shall be given to persons distraining for
rent, where there are any judgments against the person or pro-
perty so distrained.
Whe^e any tenant shall refuse to give possession of the pre-
mises at the end of his lease, it shall be lawful for the person leas-
ing the same, to demand of such tenant, monthly, double the sum
that the same was leased for, and recover the same at the expira-
ftfiNT.
S01
tion of every month, or in the same proportion for a longer or
shorter time, by distress in manner pointed out as aforesaid.
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 retake possession of the premises so by him leased or rented.
All contracts for rents, \Vhether verbal or m writing, shall bear
interest from the time the same shall become due, any law, usage,
or custom to the contrary notwithstanding ; and all actions com-
menced 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 re-
turnable, unless good cause shall be shewn for the continuance
thereof, nor shall any such action be continued more than one term
at the instance of either party, any law to the contrary notwith-
standing. A.ct. 1811. p. 152.
! II. In Savannah.
Any person who may hereafter have rent due by any person or
persons within the city of Savannah or the precincts thereof, where
the sum does not exceed thirty dollars, to make application to any
justice of the peace within the said city of Savannah or its pre-
cincts, and obtain from the said 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 or tenants; and the said
constable shall advertise and sell the same, under the same rules
and regulations as other sales under execution j and if the rent
due shall exceed thirty dollars, it shall and may be lawful for the
judge of the superior court, or any one of the justices of the in-
ferior court of Chatham county, to issue a warrant, authorising
the sheriff or any lawful constable of the said city or the precincts
thereof, to distrain on any property belonging to the said tenant or
tenants, and advertise and sell the same as in cases of execution
issuing under and by virtue of the judiciary act: Provided never-
theless, that the said tenant or tenants shall be entitled to replevy
the goods so distrained, by making oath that the same or some
part thereof distrained for, is not due, and give security for the
eventual condemnation money ; and in that case, it shall be the
duty of such officer to return the same" to the court having cogni*
308
RENT.
zance of the same, and the same shall be determined by a jury as
practised in other cases of claims.
Where any property may be distrained and claimed by a third
person, the same shall be claimed on oath, and shall be returned
and determined in like manner, and under the same rules and re-
gulations as are by law pointed out for the trial of the right of
property.
In no case a preference shall be given to persons distraining for
vrent, where there are any judgments against the person or pro-
perty so distrained.
If any person or persons leasing or renting any lot or lots,tene-
ment or tenements within the city of Savannah or the precincts
thereof, shall fail to pay the rent at the time the same shall be-
come due, and shall refuse to deliver possession to the lessor at
the expiration of his lease, it shall and may be lawful for the judge
of the superior court, or any one of the justices of the inferior
court of the county of Chatham, to issue a writ of possession di-
rected to the sheriff or any lawful constable of the city of Savan-
nah or the precincts thereof, commanding the said sheriff or con-
stable to deliver possession of the said lot or lots, tenement or
tenements to the said lessor, which shall be by the said sheriff or
constable forthwith executed and returned.
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 com-
menced in any of the courts within the city of Savannah or the
precincts thereof, for the recovery of rent in arrear, shall be tried
at the term to which the same shall be returnable, unless good
cause shall be shewn for the continuance thereof, nor shall any
such action be continued more than one term at the instance of
either party, any law to the contrary notwithstanding. Act. 1813.
p. 53 to 55.
III. In Augusta.
Any person or persons within the city of Augusta or the pre-
cihcts thereof, where the sum does not exceed thirty dollars, to
apply for and obtain from a justice of the peace, a distress war-
rant for the sum claimed to be due, which warrant shall be found-
ed on the oath, in writing, of the party, his agent, or attorney for
the sum claimed to be due, and it shall and may be lawful for any
RENT.
3Q9
constable, duly qualified, to levy the same on any property belong-
ing to the tenant, or tenants; and it shall be the duty of the
constable levying said distress warrant, to advertise and sell in
the same manner as is pointed out by the judiciary for sales under
execution ; and when the rent claimed to be due, exceeds the sum
of thirty dollars, it shall and may be lawful for the judge of the
superior or justices of the inferior court of Richmond county, to
issue a distress warrant, authorising and directing the sheriff, or
any lawful constable, to distrain any property belonging to the
tenant or tenants, and advertise and sell the same as in cases of
executions—Provided nevertheless, That the said tenant or ten-
ants shall be entitled to replevy the goods and chattels so distrain-
ed, by making oath that the amount claimed as rent, 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
thereof, and the same shall be determined by a jury as practised
in other cases ; and the jury on the trial of all such cases shall
take the following oath :—" You shall well and truly try the case
depending between A. B. distrainer, and C. D. distrainee, and a
true verdict give according to evidence, so help you God."
When any property may be distrained and claimed by a third
person, the same shall be claimed on oath, and shall be returned
and determined in like manner, and under the same rules and re-
gulations, as are by law pointed out for the trial of the right of
property; and the jury shall in all such cases take the following
oath—" You shall well and truly try the cause depending between
A. B. distrainer, and C. D. claimant, and a true verdict give ac-
cording to evidence, and you do further swear, that you will give
to the distrainer such damages against the claimant, as to you
shall seem reasonable and just, provided it shall appear to you
that the claim is frivolous and intended for delay only—so help
you God."
In no case a preference shall be given to persons distraining for
rent, where there any judgments against the person or property
so distrained.
When any tenant or tenants, hold over his or their lease, it
shall and may be lawful for the landlord to demand, collect, and
receive double rent. Act. 1814, p. 17".
From and after the passing of this act, it shall and may be law-
ful in all cases upon the termination of any lease within the city
310
RENT.
of Augusta and its precincts now in existence, (or already eX-
pired, and the tenant holds over,) or which shall hereafter exist,
where the owner of the rented property, or his proper agent or
representative, shall desire to have possession of the same, to de-
mand of the tenant or tenants the possession of the rented proper-
ty; 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 by him or herself, or by his or
her agent or representative, to go before the judge of the supe-
rior court, or any justice of the inferior court, or before the inten-
dant of the city, and make oath that the lease is expired, and that
the tenant refuses, omits, or neglects to give possession ; where-
upon 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 city marshal, requiring and commanding the said sheriff or
marshal, to deliver to the owner, his or her agent or representa-
tive, peaceable, quiet, and full possession of the rented premises,
removing the tenant or tenants, with the goods, furniture, and
other property found thereon belonging to such tenant or tenants
therefrom.
The same fees shall be allowed the sheriff or marshal for exe-
cuting the process aforesaid, as is allowed a sheriff for executing
a writ of possession after a recovery in ejectment, together with
the sum of one dollar for every hundred dollars worth of property,
goods, or effects removed from the rented premises belonging to
the tenant or tenants, which amount shall be paid by the tenant
or tenants, and be levied on his goods for that purpose.
Where the tenant shall declare on oath, that his lease, whether
written or verbal, is not expired according to agreement, he shall
in that case not be removed from the possession, but the sheriff
or marshal shall return the proceedings to the next superior court
of the county, and the fact be there tried, and if determined against
the tenant, or tenants, he or they shall pay four times as much as
the rent reserved, and be moreover liable to be indicted in the
superior court for perjury.
Where any tenant shall make oath that he does not hold under
the party claiming the possession, or any other claiming undei
him, but under a different person or persons, then and in that case
the proceedings shall be returned to the superior court of the coun-
ty for trial, and if found against the tenant, he shall pay two-fold
rent for the time he may have held over, and be turned out of pos-
session as herein before pointed out. Act. 1816, p. 88
RIOT,
311
RESCUE.
i
If any person shall rescue another'in legal custody on criminal
process, such person shall receive the same punishment as the per-
son rescued would on conviction be sentenced to receive, and if
the person so rescued shall not have been tried, or shall have been
acquitted, it shall be lawful to charge the person rescuing as for a
misdemeanor, and, upon conviction, he shall be imprisoned in the
common jail of the county, for any period of time not exceeding
one year, as the court may order and direct.
If any person or persons shall rescue another in legal custody
on civil process, such person or persons shall be indicted, and on
conviction, shall be sentenced to pay a fine equal to the amount of
the debt or demand for which such process was issued, and the
said person or persons shall be imprisoned in the common jail of
;the county, at the discretion of the court. P. C. p. 119.
RIOT.
If any two or more persons, either with or without a common
cause of quarrel, do an unlawful act of violence, or any other act
in a violent and tumultuous manner, such persons so offending,
shall be guilty of a riot, and on conviction, shall be sentenced to
pay a fine or be imprisoned in the common jail, or both, as the
court may order and direct; but if the circumstances attending
the riot shall be of an atrocious or aggravated nature, the offen-
ders may, at the discretion of the court, be fined and imprisoned
in the penitentiary, for any time not exceeding two.years. P. C.
p. 123.
31p
ROADS.
ROADS.
The justices of the inferior courts in and for the several coun-
ties in this state, at the first session or term after the passing of
this act, or as soon thereafter as convenient, shall proceed to define
and point out as many and such districts as to them shall seem
meet and ppoper, having due regard to proportioning said districts
or divisions, so as to divide the labour and expense of the roads,
causeways and bridges, equally among the citizens and hands of
the respective districts throughout the said counties. And on ap-
plication to said court for any new road, or any alteration in an
old road, the said justices shall proceed to appoint three discreet
and proper persons, residing in the neighbourhood where such
road is intended to pass, and in case they find it of public utility,
they may proceed to mark out the same, on oath taken before any
justice, and report to the said court, the clerk of which is hereby
required to notify the commissioners hereinafter named of such
report, and the justices of said inferior courts shall appoint two
or more commissioners, one of which shall be a justice of the
peace, and in case of death, resignation, or removal of the justice,
the other two commissioners are hereby authorized to administer
oaths relative to their duties of the roads, who shall be notified of
such their appointment in writing by the clerks of said court,
within ten days after such appoiutment, under the penalty of forty
dollars for every such default; and if any commissioner or com-
missioners, within ten days after the receipt of such notification,
shall not make his or their resignation to some one of the justices
aforesaid, such commissioner shall be considered as having accept-
ed such appointment, and the commissioners so appointed shall
have full power and authority to proceed to apportion the roads
and hands for the district aforesaid, and in case of refusal, depar-
ture or decease of any such commissioners, the inferior courts in
the counties aforesaid shall have power to fill such vacancy, either
in term-time or vacation.
All male inhabitants, mulattoes and free negroes, and all male
slaves from the age of sixteen to forty-five years, in the counties
aforesaid, shall be, and they are hereby declared to be obliged to
appear with such implements as directed by the overseer, and work
ROADS.
313
on the several roads, causeways, and bridges, within the several
districts to which such male white inhabitants, mulattoes, free
negroes, and male slaves shall have been allotted, pursuant to this
act j or such male white inhabitants, mulattoes, free negroes, and
owners, managers, or employers of such negroes or male slaves,
shall be liable to the fines and penalties in this act defined and ex-
pressed.
The commissioners appointed under this act, or a majority of
them, shall and they have hereby full power and authority to ap-
point one or more person or persons within their several districts
as overseers, to summons all such persons as are obliged to work
within the said districts, at least three days before the time of
working, stating the time and place of meeting, with such imple-
ments as shall be deemed necessary for the repairing of the road,
and at such times of the year, as in his opinion, the roads may re-
quire repairing, (not to exceed five days at any one time of work-
ing, nor to exceed fifteeen days in twelve months unless emergen-
cies require-it,) to repair and work on the roads, causeways, and
bridges, within the same. And the several owners, managers, or
employers of male slaves within the several districts shall, when
summoned as aforesaid, deliver to the person summoning him,
her, or them, a list of all such male slaves as are by this act liable
to work on said roads, in writing signed by such owner, manager,
or employer, under a penalty of three dollars for each hand, which
list the person summoning shall deliver to any one of the com-
missioners in the district in which he was appointed to summons
as aforesaid.
Every male white inhabitant, free negro, or mulatto, who being
duly summoned to work in the respective districts wherein such
male white inhabitants, free negroes, or mulattoes are obliged to
work by this act, shall neglect or refuse to obey such summons,
he shall for each day he should so refuse or neglect to appear and
work as aforesaid, forfeit a sum not less than one dollar, nor more
than three dollars (commissioners aforesaid excepted) for each
hand so in default.
It shall b6 the duty of the commissioners, or a majority of
them, to issue executions against defaulters under their hands and
seals, directed to any lawful constable of the district, for the amount
of all fines by them imposed by this act, unless a satisfactory ex-
cuse be rendered to them on oath within twenty days by the per-
son or persons returned by the overseer as defaulters -f and it
2R
314
ROADS.
shall be the duty of the constable to levy and collect such fines in
the same way and manner as executions issuing from the justices
courts, and when collected the said constable shall within ten
days pay over the amount collected to the commissioners or any
one of them, one half of which shall be paid by the commission-
ers to the overseer, and the remainder, together with any fines
which may be collected from overseers, shall be paid to the Jnfe-
rior court, and applied to the building and repairing bridges in
their counties: Provided, that overseers shall not be witnesses
against defaulters to any other fact than that of summoning to
work on the said roads. *
It shall be the duty of all overseers appointed, or that may
hereafter be appointed to superintend the working on and repair-
ing the road or roads laid out and assigned by the commissioners
to their superintendance, and cause the same to be worked on and
repaired in the best possible manner which the situation of the
land over which said roads shall pass will admit of, and to make
a return to the commissioners, or some one of them, within five
days after every time of working on said roads, a list of all de-
faulters and deficiencies which may have taken place during such
time of working on said road. And When any overseer shall,-at
any time within twelve months after his appointment, neglect or
refuse faithfully to discharge the duties required of him as over-
seer, he shall be subject to a fine not exceeding twenty dollars, and
it shall be the duty of the commissioners to notify such overseer
of any failure of duty, and unless satisfactory excuse be given to
said commissioners, or a majority of them, within twenty days
after such notice being given, they shall issue execution against
such delinquent overseer for the sum for which he had laid him-
self liable as pointed out by this act, directed to any constable in
the district where such overseer may reside for the collection of
said fine.
When any road may be a district line, the commissioners of
each district shall meet and co-operate in appointing overseers on
such roads, and where any dispute may happen relative to district
lines, the commissioners of each district, shall cause the lines to
be plainly marked out and designated.
All overseers shall cause their respective roads to be cleared
out at least thirty feet wide, an4 all cause-ways at least sixteen
feet wide.
When any person shall hereafter make any fence, or cut anv
ROADS.
315
tree, or make other obstructions in or across any public road, the
commissioners may be notified of the obstructions, if the safne do
not come under their knowledge, or any one of them, and, unless
removed in two days, such persons shall, for every such offence,
pay a fine not exceeding twenty dollars, to be recovered by warrant
under the hand and seal of any justice of the peace, to be applied
as is herein directed, and it shall be the duty of the overseer of
the road forthwith to cause the said obstructions to be re-
moved.
All overseers are hereby authorised, to make use of any tim-
bers, for the use of the road upon which they may be required to
work on, except board and shingle timbers.
When it shall be necessary to have bridges over any water
course, which divides one county from another, the inferior court
of each county shall join in appointing commissioners, for the
building of and keeping in repair the same, and the expenses
thereof shall be defrayed by both counties, in proportion to the
amount of the general tax of each, to be estimated by the digest
of the general tax taken next before such contract.
When any public bridge shall require repairing, it shall be the
duty of the commissioners, or any one of them, to give notice in
writing thereof to the undertaker, or one of his securities, stating
the repairs necessary to be made, and requiring the same tb be
made within a reasonable time, to be set forth in the said notice,
and if the same shall not be made within such time, such commis-
sioner or commissioners shall employ some other person or per-
sons forthwith to make such repairs, and shall immediately there-
after issue an execution against such undertaker and his securi-
ties, for the amount given for the said repairs with costs.
When any commissioner appointed for letting any public bridge
under and by virtue of this act, shall undertake the building and
keeping in repaiV the same, or shall become the security for any
other person so undertaking, the powers of such commissioner
shall from thenceforward cease and determine, and the inferior
court of the county shall appoint one other in his room.
In all ca*ses where the justices of the inferior courts have, or
may hereafter appoint commissioners in their respective districts,
according to the provisions of this act, and the commissioners so
appointed shall any time within twelve months after their appoint-
ment, neglect or refuse to discharge the duties required by this
act, and sufficient proof thereof being made to the inferior court,
316
ROADS.
shall be fined in a sum not exceeding sixty dollars, for every such
refusal or neglect of duty; which fines, when collected, shall be
by the inferior court appropriated to the building and keeping in
repair the public bridges within the bounty.
When any of the commissioners as aforesaid shall resign, the
justices of the inferior court, or a majority of them, shall in term
time or vacation, appoint other fit and proper persons in their
stead, who shall be subject to the like services and penalties as
pointed out by this act, and shall also continue to discharge the
duties required of them for the term of one year, from the date of
their appointment, and until they shall signify their resignation to
the justices of the inferior court.
In case where any vacancy may happen by death, removal or
other disability, the justices of the inferior court or a majority of
them, shall proceed to fill such vacancy either in term time or
vacation, and the person so appointed, shall be subject to the like
duties and penalties as all other commissioners are, appointed by
virtue of this act.
The commissioners so appointed, or a majority of them, shall
hear and determine on all cases of default for neglect of duty re-
quired by this act: Provided, Such hearing and determining shall
be within thirty days after such default: Provided, The party in
default shall have ten days notice in writing from the overseer, to
be left at his usual place of residence, of the time and place of
hearing and determining such default.
All moneys collected by virtue of this act, except such as are
otherwise provided for, shall be by the commissioners aforesaid
paid into the hands of thfe clerk of the inferior court, to be ap-
plied to the repairing the public bridges and causeways.
In all cases where commissioners have been or may hereafter
be appointed, for the purpose of reviewing any new road intended
to be laid out, and shall report to the inferior court the propriety
of opening the same, the said court may, if they or a majority of
them deem it advisable, pass an order for opening such road.
In case any commissioner or commissioners appointed by virtue
of this act, shall neglect or refuse to discharge the duties required
of them as pointed out by this act, and information thereof being
lodged with the justices of the inferior court by any person, it
shall be the duty of said court to notify such commissioner or
commissioners of such information, and unless excuse be offered
to the satisfaction of tlm justices of said court, or a majority of
ROADS.
317
them, within thirty days after such notice being given, they shall
direct the clerk to issue execution against any such delinquent
commissioner or commissioners, for the sum for which he had laid
himself or themselves liable, as pointed out by this act, directed to
any constable in the district where such commissioner may reside,
for the collection of said fine, and to return the same at the next
term of the said court, for which services the constable collecting
and returning the same, shall receive from the justices of the in-
ferior court the usual fees out of the money so collected.
From and after the first day of June next, it shall be the duty
of all overseers of roads, leading from the court-house of their
respective counties within this state, in addition to the duties
herein required of them by this act, to measure all that part of the
road to which they may be appointed overseers, commencing at
the said court house, and at the end of each mile to set up a post
or mark on some conspicuous place, which shall designate the
number of miles from thence to the court-house as aforesaid.
Where it shall so happen that in measuring from the court-
house as aforesaid, to the end of the district to which they are ap-
pointed overseer, and the distance shall not be an equal number of
miles, the overseer of the same road in the next adjoining dis-
trict shall be compelled to commence at the last mile post in the
district thus measured, unless such district shall end at some
county line ; then and jn that case, the overseer of such district
shall by some post or mark designate the distance from such county
line to the court-house of their respective counties as aforesaid.
It shall be the duty of all overseers as aforesaid, at the fork of
each public road within their respective districts, to place or post
up in some conspicuous place, a board or other mark designating
on the same the most public place to which each road directs.
All public roads leading from any seaport or other town, shall
be measured from thence until it intercepts the first court-house
or county town.
When any public road as aforesaid shall be altered so as to
make it necessary to remove any post, it is hereby made the duty
of the'overseer of said road to remove such post, or set up others,
in such manner as to answer" the purpose contemplated by this act.
In case any of the overseers should fail or omit to measure,
post, and mark their respective roads as contemplated by this act,
or omit to set up sign boards as above contemplated, he shall forfeit
and pay a sum not exceeding twenty dollars, to be recovered as
318
ROADS.
other fines before recited in this act, and appropriated to the same
purposes.
All public roads shall be laid out the nearest and best way
to the place to which they are intended, and the commissioners
of roads shall be required in all cases to designate the same on
oath, if required by the court.
If any person or persons shall remove or deface the said posts,
boards, or marks, they shall forfeit and pay a sum not exceeding
thirty dollars for each and every offence, to be recovered before
any court having competent jurisdiction of the same, one half to
the county and the other half to the informer; and if the same
offence should be committed by a slave or slaves, or any free
person or persons of colour, he, she, or they shall receive, on
conviction, not exceeding thirty-nine lashes on his, her, or their
bare backs, to be inflicted by the order of any justice of the peace
of the district where the offence was committed.
The justices of the inferior courts of each county in this state,
or a majority of them, shall have power and authority to hear and
determine on all matters which may come before them, relative
to roads, bridges, &c. as are authorized by law, either in term-time,
or while sitting for ordinary purposes, or at any special meeting
held for that purpose.
This act shall not be so construed, so as to cause the justices
of the inferior courts to lay out and designate again those districts
which have heretofore been laid out and designated according to
the requisitions of this act.
The commissioners so appointed shall keep a book, and enter
down in writing all fines which may arise from default, and return
the same annually to the inferior court in order to show the
amount of fines, if any, collected, and in failing to comply with the
requisitions as are herein stated, to be subject to a fine not exceed-
ing one hundred dollars, imposed by the court, collected as other
fines, and paid over to the clerk of the inferior court for county
purposes.
The following counties, to wit: Richmpnd, Burke, Jefferson,
Chatham, Bryan, M'Intosh, Glynn, Camden, Liberty, and Effing-
ham, shall be, and they are hereby declared to be exempted from
the operation of this act.
The inferior courts shall have power to establish ferries, to
rate the toll to be taken, as well of those already established
as any which may hereafter be established within the several
counties in which they may severally reside, and generally
ROADS.
319
all other matters relative to ferries which may in their judg-
ment be of public utility, any law to the contrary notwithstanding;
provided nevertheless, that in all cases where the inferior court
have or shall establish a ferry over any water course, they are
hereby authorized and required to cause every such person to give
bond and sufficient security in such sum as they may think pro-
per, conditioned for their keeping in repair a good and sufficient
flat and attendance.
The second section of an act entitled an act, to empower the
inferior courts of the several counties of this state to order the
laying out of public roads, and to order the building and keeping
in repair the public bridges, passed the 4th day of December
1799, be, and the same is hereby declared in full force and effect,
where the same is not repugnant to any of the provisions of this
act.
The 2d section of the act of 1799 above referred to is in the
following words: " All roads hereafter to be laid out shall be
laid out by three or more commissioners, being freeholders, who
shall take an oath before any justice, to lay out the same to the
greatest ease and conveniency of the inhabitants, and as little as
may be to the prejudice of any private person or persons enclosed
ground. And when any person or persons shall feel, him, her, or
themselves aggrieved by reason of anyroad being laid out through
his, her, or their enclosed ground, it shall be the duty of any
two or more of the justices of the inferior courts, on appli-
cation in writing by the person or persons injured, to issue
a warrant under their hands, directed to the sheriff of the
county, to summon a jury of freeholders, who shall be sworn to
assess such damages ; and that the sheriff shall make and return
a true inquisition thereof, to the next inferior court; and it shall
be the duty of such court to order the amount of damages so as-
sessed to be paid out of the next county tax, or out of any public
monies belonging to the county fund : provided nevertheless, that
where it shall appear to the inferior court that the damages so as-
sessed transcend the utility of that part of the said road, such
court shall order the same to be altered in such manner as to
avoid the enclosed ground so damaged, unless the person com-
plaining shall agree to accept such compensation as shall be deem-
ed just and reasonable by such court." M. & C. Dig. 406.
All road laws heretofore passed from the 16th of December,
' 1811, which militate againstthis law, be, and the same ate hereby
repealed. Act, 1818, p. 134 to 144.
320
SEAMEN.
ROBBERY.
Robbery is the felonious and violent taking of money or goods
from the person of another by force or intimidation.
Robbery by open force and violence shall be punished by im-
prisonment in the penitentiary at hard labour,, or in solitude, for
for any time not less than one year nor longer than five years.
Robbery by intimidation, or without using force and violence,
shall be punished by imprisonment in the penitentiary at hard la-
bour, or in solitude, for any time not less than one-year nor longer
than three years. P. C. p. 104.
Sabbath. See Vice and Immorality.
SEAMEN.
If any seaman or mariner having entered or shipped himself on
board any ship or vessel, within this province, or which shall
come to the same, and having signed an agreement or contract
with the master or commander thereof to proceed upon any voy-
age therein mentioned, shall absent himself from such ship or ves-
sel, for the space of twenty four hours, without leave had and ob-
tained from the said master or commander, or other chief officer
having the command of such ship or vessel, or shall refuse or ne-
gleet to perform his duty on board the same, or refuse to proceed
on the voyage mentioned in such agreement or contract signed as
aforesaid, it shall and may be lawful for any justice or justices of
of the peace within their respective jurisdictions, upon application
being made to him or them by such master or commander, to issue
his or their warrant or warrants to apprehend such seaman or
SfeAMEN;
531
Mariner, and upon proof of such absence without leave had and ob-
tained or of such neglect or refusal as aforesaid, to commit such
seaman or mariner to the jail or work house, for any time not ex*
ceeding thirty days* any law, usage* or custom to the contrary not-
withstanding.
The charge of apprehending, ^committing and maintaining such
seaman or mariner, during his confinement as aforesaid, shall be
paid by the complainant, which charge he is hereby authorised to
deduct out of the wages due or to be due to such seaman or ma-
riner*
If any person or persons whatsoever, after the passing of this
act, shall give credit to or trust any seaman or mariner belonging
to any ship or vessel within this province, having signed an agree*
ment or contract to proceed therein as aforesaid, for any sum ex-
ceeding five shillings* except by leave of the master or command*
er of such ship or vessel, he* she* or they so giving credit to or
trusting such seaman or mariner as aforesaid* shall for every such
offence, lose the moneys or goods so credited or trusted*
If any person or persons whatever, after the passing of this act*
shall willingly and knowingly entertain, retain* harbour* or keep, or
shall directly or indirectly suffer to be entertained, retained, harbour-
ed, or kept* any seaman or mariner belonging to any ship or vessel,
and having signed any agreement or contract as aforesaid, in his*
her or their house, without the leave* privity or consent of the mas-
ter or commander of such ship or vessel, he* she or they So offend-
ing, shall forfeit the sum of forty shillings sterling, for every twen-
ty-four hours such seaman or mariner is harboured, entertained,
retained, or kept in his, her, or their house as aforesaid, and such
fine or forfeiture shall be recovered by distress and sale of the of-
fender's goods by warrant, under the hand and seal of any justice
of the peace of the parish where such offence shall be committed*
which penalty shall be to his majesty for the use of the poor of the
said parish.
All and every keeper or keepers of taverns or tippling bouses*
or any other person or persons whatever, who from and after the
passing of this act, shall sell any wine, punch, beer, ale, cider, or any
spirituous liquors whatever, to any seaman or mariner belonging
to any ship or vessel, and having signed any agreement or contract
as aforesaid, to the amount of more than one shilling and sixpence
in any one day, or shall entertain or suffer any seaman or mariner
as aforesaid, to drink or tipple in his, her, or their house, or furnish
2- S
322
SEAMEN.
such seaman or mariner with any liquor as aforesaid, after the
hours of nine of the clock, unless with the knowledge or by the
leave and consent of the master or commander of the ship or ves-
sel to which such seaman or mariner shall belong, such keeper of
tavern or tippling house, or such person or persons so offending,
shall, upon proof of such offence, forfeit the sum of twenty shil-
lings sterling, to be recovered add applied as in this act is before
directed.
From and after the passing of this act, any and every seaman
or mariner whose agreement or contract entered into with any
master or commander of any ship or vessel within this province,
for the performance of any voyage therein specified, shall be ful-
filled and determined, shall and may demand of and from the said
master or commander a certificate thereof, and of his discharge
from such ship or vessel, which certificate such master or com-
mander is hereby required to give, under the penalty of five pounds
sterling, to be recovered by warrant of distress and sale of the of-
fender's goods, under the hands and seals of any two justices of
the peace for the parish where such offence was committed, and be
to his majesty, and applied one half to the informer, and the other
half to the poor of the said parish; and upon refusal of said mas-
ter or commander to give such certificate without just cause, any
two justices of the peace upon due application and proof thereof,
are hereby empowered to give such certificate, which shall be of
equal force as if given by such master or commander ; and such
justice shall receive for every such certificate so given by them as
aforesaid, the sum of one shilling sterling, to be paid by such mas-
ter or commander, refusing as aforesaid.
No master or commander of any ship or vessel within this pro-
vince, shall hire, receive, entertain or ship any seaman or mariner
belonging to and pretending to be discharged from any other ship
Or vessel, unless such seaman or mariner shall have a certificate of
his discharge as aforesaid, under the penalty of ten pounds sterl-
ing, to be recovered and applied as the penalty in this act inflicted
upon masters or commanders refusing to give such certificate.
If any person or persons keeping or attending any ferry within
this province, shall willingly or wilfully transport or suffer to be
transported over such ferry any seaman or mariner not having a
certificate of discharge as directed by this act, he shall, upon convic-
tion thereof before any one of his majesty's justices of the peace
for the parish where such offence was committed, forfeit five
SEARCH WARRANT. 323
pounds sterling, to be recovered by warrant of distress and sale
of the offender's goods, and be to his majesty to and for the use
of any person or persons informing of and suing for the same. M.
& C. p. 414 to 416.
SEARCH WARRANT.
The right of the peojile to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no warrants shall issue but upon proba-
ble cause, supported by oath or affirmation, and particularly de-
scribing the place to be searched and the persons or things to be
seized. Amend. Con. U. S. Art. 4.
A justice cannot iipon a bare surmise make a warrant to break
a man's house to search for a felon or for stolen goods j for it
would be very inconvenient that it should be in the power of any
justice of the peace, or any other whosoever, upon a bare sugges-
tion, to break the house of any person he pleased, either by night
or by day, upon such surmise.
But if complaint be made on oath of goods stolen, and that the
deponent suspects the goods are in such a house, and will shew
good cause of his suspicion, the justice may grant a warrant to
search in such suspected places as are particularly mentioned in
his warrant j and to attach the goods and the party in whose cus-
tody they are found, and bring them before him or some other
justice to be examined, and to abide such order thereupon as shall
be agreeable to law.
And it is most proper that even such a warrant should be exe-
cuted in the day time, though not absolutely necessary that it
should.
If the door be shut, and if the stolen goods be in the house,
the officer may break open the door if after demand it be refused
to be opened.
If the goods be not in the house, yet the officer is justifiable, but
he that made the suggestion is punishable j for as to him the break-
ing open the door is lawful or unlawful, according to the event,
to wit, lawful if the goods are there, unlawful if not there.
SERVANTS.
As to the goods brought before the justice, if it appear they
were not stolen, they are to be restored to the possessors. If it
appear they were stolen they shall be deposited in the hands of
the sheriff or constable, to the end the party robbed may pro-
ceed, by indicting and convicting the offender, to have restitution.
As to the patty having the goods, if not stolen, he is to be dis-
charged. If stolen, not by him, but by another that sold or de~
livered them to him, if it appears he was ignorant they were stolen,
he may be bound over as a witness against him that sold them,
Jf it appears he knew they were stolen, he must be committed or
bouhcl over to answer the felony to the proper court,
i'elf-defence. See Homicide,
SERVANTS,
All white servants brought into this country under any agree-
jnent or contract made in foreign countries, and who shall not pre-
viously to embarkation therefrom have been indented, shall be
hound to perform the same ; and in case of refusal to indent him-
self, herself, or themselves, on application and demand, it shall be
lawful for the person or persons .with whom such servants have so
agreed or contracted, to apply to any three justices of the county
into which such servants may arrive, one of them to be a judge of
the inferior court thereof, who are hereby empowered and requir-
ed to have the parties brought before them, and decide on the va-
lidity and good faith of such contract, and if they, or a majority of
them, shall judge the same binding and valid, it shall be the duty
of such magistrates or a majority of them, to indent such servants
by an order to be entered up of record in the clerk's office of the
inferior court, which order shall be received and considered as an
indenture, and held to be as binding in law, to all intents and pur-
poses as if the same had been voluntarily entered into by such
servants after such their arrival: Provided nevertheless, that if
SERVANTS.
325
such servants be of the age of nineteen years, they shall not be in*
dented for a longer term than five years, and if under that age, for
a longer period than their arrival at the age of twenty-four years,
and if at the age of fourteen, until they arrive at the age of twenty*
one years ; and the said magistrates are also hereby empowered
to decide on the age of such servants and bind them accordingly 5
which decision shall be entered up of record with such order, in
the clerk's office of the said inferior court.
All indentures made between masters, supercargoes, or owners
of vessels, or other persons in foreign countries, and persons wish*
ing to migrate to this state or the United States, and thus becom*
ing servants as aforesaid, shall be held and received as valid and
binding in law, on their arrival within any port or place within
this state, as if such indentures had been voluntarily entered into
by the parties after such their arrival,
All masters and owners of servants cdming within the intention
of this act, shall find and provide for their servants wholesome
and competent diet, clothing and lodging, in health, and proper and
necessary medicine and attendance in sickness, and shall not at
any time give immoderate correction, or at any time whip such per-
sons naked, without an order from two or more magistrates for
that purpose, after a hearing from both parties, and shall not task
them with immoderate labour j and such servants shall have their
complaints received by any justice of the peace, who, if he finds
cause, may bind the master or owner over until the complaint can
be heard before the inferior court of the county where they shall
reside ; and all complaints of such servants shall and may by vir-
tue hereof, be received by the said court in form of petition with*
out the formal process of an action, and full force and authority
is hereby given to the said court, at their discretion (having first
summoned their masters or owners to justify themselves if they
think fit) to adjudge, order, and appoint what shall be necessary
and proper, as well with respect to the diet, lodging, clothing and
excessive labour, as to the correction of #the servant or servants
complaining; and if any master or owner shall not thereupon com-
ply with the court's order, the said court is hereby authorised and
empowered, upon a second just complaint, to release and acquit
such servant or servants from any future service, by entering an
order to that purport on the records of the court; and in cast it
shall be found upon examination before the said court, or three
justices, that the complaint of such servant Or servants was un-
326
SERVANTS.
founded or malicious, then the inferior court as aforesaid, shall
have power to direct and order any moderate punishment not ex-
eeeding thirty-nine lashes ; and in case such servant shall absent
him or herself from his or her said master's or owner's service,
the said inferior court shall be and hereby is authorised to indent
such servant for such absence, a term not exceeding four dayfe for
every day's absence, more than the time they were originally in-
tended for, by an order entered as aforesaid on the court books.
No master or owner of any servant shall, during the time of
such servant's servitude, make any bargain with him or her for
further service, or other matter or thing relating to liberty or per-
sonal profit, unless the same be made with the approbation of the
inferior court of the county where they so reside ; and if any ser-
vant shall at any time during such service, by gift, or other law-
' ful means acquire any goods or money, such servant shall have the
property thereof to his or her own sole use and benefit. And if
any servant shall, during such servitude, happen to fall sick or
lame, so that he or she becomes of little or no use to his or her
master or owner, the master or owner shall, at his or her own ex-
pense, provide such servant with necessary medicine and attend-
ance during such sickness, and shall not put away such servant,
but shall maintain him or her during the whole time he or she
were obliged to serve ; and if under any pretence of freedom, any
master or owner shall put away any such sick or lame servant, and
such servant shall become chargeable to the county, such master
or owner shall forfeit and pay a sum equal to the maintenance of
such person, to be recovered by distress, monthly or weekly, at
the option of the magistrates superintending the poor rates of such
county.
At the expiration of the time of service, every master or owner
shall supply every such servant with a new and sufficient suit of
clothes, to be approved of by any three or more justices of the
said county, under a penalty not exceeding thirty dollars, to be
recovered in a summary way, by such servant before the said jus-
tices.
All servants imported or migrating and indented as aforesaid,
may be transferred by assignment of the indentures, either by the
persons they originally contracted with or their assigns ; and such
persons to whom such servants may be so assigned, shall be sub-
ject to the clauses and provisions of this act, and to every matter
and thing expressed to be done or performed on the part of the
original owners, importers or contractors. M. & C. Dig. 416.
SHERIFF.
327
SHERIFF.
Sheriffs shall be appointed in such manner as the general as-
sembly may by law direct, and shall hold their appointments for
the term of two years, unless sooner removed by sentence on im«
peachment, or by the governor, on the address of two thirds of the
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. M. & C. p.
29.
The elections for 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,
one thousand eight hundred and fourteen, and on the first Mon-
day in January every second year thereafter, in each and every of
the said counties respectively. Act 1811, p. 127.
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. M. & C. p. 202.
When the sheriffs, clerk of the superior court, or clerk of the
inferior court's office in any county shall be vacated by death, re-
signation or otherwise, the justices of the inferior court or a majority
of them, shall immediately meet at the court-house in the county
where such vacancy may happen, and proceed to fill said vacancy by
appointing a fit and proper person, who shall give bond and security
in the usual amount and in the usual form, and take the usual
oath, and such person shall be liable for the duties of sheriff in the
county for which he was appointed ; and such person shall con-
tinue in office, unless otherwise specially removed, until a succes-
sor is elected and qualified. Act 1817, p. 75.
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,
328
SHERIFF.
Warrants, precepts and processes directed to them, and Issued tin-
der 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 ne-
cessary assistance in the execution of their duty, and to appoint,
as there shall be occasion, one or more deputies, and before any
sheriff shall enter upon the duty of his appointment, and being
commissioned by the governor, he shall be bound for the faithful
performance of his duty, by himself and his deputies before any
of the said judges*, to the governor of the state for the time being
and to his successors in office, jointly and severally, with two good
and sufficient securities, inhabitants and freeholders of the county,
to be approved of by the justices of the inferior court or any three
of them, in the sum of twenty thousand dollars, and the said bond
6hall 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 sU-
perior or justices of the inferior courts, and the same shall be en-
tered on the minutes of the said court before such sheriff shall en-
ter on the duties of his office, to wit: " I do solemnly 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 all 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 sheriff
in like manner.
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
* 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 respec-
tive counties throughout this state, is and are, and by intendment of law Ought td
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. Clay.
Big. p. 112«
SHERIFF.
329
another sheriff be appointed and qualified ; and the defaults and
misfeasance 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 execu-
tor or administrator of the deceased sheriff, shall have the like re-
medy for the misconduct or misfeasance or default in office of
such deputy or deputies, during such intervals, as he would be en-
titled to if the sheriff had continued in life, and in the execution
of his office, until his successor was appointed and sworn.
The sheriff of each county shall at the expiration of his appoint-
ment 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 con-
fined 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 con-
tinued therein, and shall make titles to the purchasers for all the
property sold under execution, and not conveyed by his prede-
cessor.
The sheriff of the several counties in this state, shall have like
powers and authorities, and they and their under sheriffs,and
jailors, constables and other officers belonging to the court, 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 prisoners, 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 practice
in any of the courts of this state, during the time he is in such
office.
2 T
330
SHERIFF.
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, when-
ever 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 exe-
cution, or any moneys collected by virtue thereof.
If any sheriff, or his deputy or under sheriffs, shall be guilty of
extortion, or other mal-practice in the execution of his office, upon
complaint made, on oath, to the state's attorney or solicitors, it
shall be the duty of such attorney or solicitor, to exhibit a bill of
indictment against the person so offering, 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 likewise 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 monies received on such execu-
tions, on his being required by the court so to do, he shall be lia-
ble to an action as for contempt, and may be fined, imprisoned or
removed from office, in the manner prescribed by the constitution.
M. & C. p. 305.
To all civil suits in the superior and inferior courts, a process
is to be annexed and directed to the sheriff, requiring the defen-
dant or defendants, to appear at the court to which the same shall
be made returnable, and shall be served on the defendant or de-
fendants, at least twenty days before the return thereof, by de-
livering a copy of such petition and process to the defendant or
defendants, or leaving such copy at his, her, or their most notori-
ous place or places of residence. And if any process shall be de-
livered to the sheriff, or other officer, whose duty it shall be to
execute the same, so late that it cannot be served in manner afore-
said, twenty days before the sitting of the court to which it shall be
returnable, such process shall not be executed, but the officer shall
return the same with the truth of the case.
That all process issued by the clerks of the said courts respec-
tively, where the sheriff, who ought to execute the same, shall be
any wise interested, shall be directed to the coroner of such county.
SHERIFF.
331
and served and returned by him in the same manner as is required,
of sheriffs. M. 8c C. p. 294.
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
sufficient security or securities, for double the sum sworn tt», 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 excep-
tions taken thereto and entry thereof made at the first term, to
which the said 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 proceed to judgment according to the provisions of
the act herein after mentioned. And in all cases where any defen-
dant 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 com-
mon 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 defen-
dants in some private house: Nevertheless, Such person or persons
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. See
forms, title Bail.
Execution may issue against the principal and bail, or either of
them, or either of their estates, unless the bail shall surrender the
principal at or before entering up final judgment on scire facias,
either in open court in term time, or to the sheriff of the county
in which such principal shall reside, at any time in vacation; and
it shall be the duty of the court to order such principal into the
custody of the sheriff, and the duty of the sheriff in time of vaca-
tion to receive into his custody such principal, and in either case
to commit him, her or them to jail, according to the directions of
this act, any law, usage or custom to the contrary notwithstand-
ing. M. & C. 296.
All executions shall be issued and signed by the clerks of the
several counties in which judgments shall be obtained, and bear
test in t;he name of one of the judges or presiding justices of such
332
SHERIFF.
courts, and shall be directed to all and singular the sheriffs ol tins
state, and may be levied on the estate both real and personal of the
defendant or defendants, or issue against the body of the defen-
dant at the option of the plaintiff"; which execution shall be of full
force until satisfied ; without the same being obliged to be renewed
on the court roll from year to year, as heretofore practised. And
where the defendant shall point out any property on which to lev)
the execution, being in the hands and possession of 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: Provided,,
the same is, in the opinion of the sheriff, sufficient to satisfy such
judgment.
In all cases, where execution shall issue illegally, and the per-
sons against whom such execution may be shall make oath thereof,
and shall state the causes of such illegality, such sheriff shall re-
turn the same to the next term of the court out of which the same
issued, which court shall determine thereon at such term. And
where any sheriff shall levy an execution on property claimed by
any person not a party to such execution, such person shall make
oath to such property, and it shall be the duty of the sheriff to
postpone the sale or future execution of the judgment until the
next term of the court from whence the execution issued, and such
court shall cause the right of property to be decided on by a jury
at the same term, unless special cause be shown to induce the
court to continue the same for one term and no longer: Provided,
The person claiming such property, or his attorney, shall give
bond to the sheriff with security in a sum equal to the amount of
the execution, conditioned to pay to the plaintiff all damages w hich
the jury on the trial of the right of property may assess against
him, in case it should appear that such claim was made for the
purpose of delay.
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
gazettes of the state, of all sales of lands and other property exe-
cuted by him, aad also advertise the same in three of the most
public places in the county where such salts ate to be made, and
SHERIFF.
333
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 plain-
tiff ten days notice thereof, and also to advertise the same in three
or more of the most public places in the county where such pro-
perty may be at least ten days before the sale. M. & C. 301.
The clerk of the court shall annex a pannel of the jury con-
taining the names of the persons drawn to serve on the grand in-
quest, exactly transcribed from the minute book to the precept
for summoning such grand jury, and shall annex another pannel
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 summoning the petit jurors, in the mandatory
part of which precept shall be written the words following, viz.
" The several persons named in the pannel hereunto annexed,"
which precept with the several pannels annexed as aforesaid, shall
be delivered by the clerk of the court within three days after the
drawing of such juries as aforesaid, to the sheriff of the county
or his deputy.
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 pannel
thereunto annexed, to be served with a summons at least ten dAys
before the sitting of the court for which they are drawn and em-
pannelled; 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 su-
perior court, at the next superior court to be held at the court house
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 den
pending, as the case may be)which shall be signed by the sher-
iff 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 hot have summoned, together
with the reasons why they were not summoned, on pain of being
fined by the court. M. & C. 304.
334
SHERIFF,
It shall be the duty of the sheriff of the respective counties of
this state, and they are hereby authorised and required when a
sale shall have taken place under and by virtue of an execution is-
sued by the treasurer of this state, under the directions of this act,
against any defaulting tax collector, and the property of such de-
faulting tax collector shall have been sold for moneys due the state,
to deliver the possession of the property so sold to the purchaser
or purchasers thereof; and if the said defaulter or any other per-
son 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 de-
faulting tax collector, or any other person or persons who may be
in possession of the property sold, and deliver the same to the pur-
chaser 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 assistance, who is hereby required to order out the same.
Clay. Dig. 239.
It shall hereafter be the duty of the sheriffs of the several coun-
ties in this state, when they levy any execution on land, to leave
a written notice of the said levy with the owner if in the county,
or tenant, if in possession of any, or transmit the same to him, her,
or them, in five 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; any thing in any law to the contrary notwithstand-
ing.
It shall be the duty of the sheriffs aforesaid, to advertise their
sales in some public gazette within the judicial circuit, where such
sales are intended to be made ; Provided, there is such a gazette
within the same*. Clay. Dig. 454.
Sheriffs shall perform all the duties of their 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.
•This section is repealed as to very many of the counties in the s'ate, and is
undergoing such a change every year, that reference must be had generally
the acts of the legislature for such changes.
SHERIFF.
335
They must make application to the executive for their respec-
tive commissions within twenty days after their having been elect-
ed. Clay Dig. 541.
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,
constable, or coroner, to take security for treble the amount of the
debt on which such execution is founded, for delivery of the pro-
perty so levied on, at the time of sale : (Provided the property so
levied on should be 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 be recoverable in any court of law
or equity in this state, having cognizance thereof.
In all cases where any of the aforesaid officers shall arrest any
person charged with a capital offence, he shall secure so much of
the property of the person so charged, if to be had, as will in his
opinion be of sufficient value to defray the expence incident to such
prosecution, jailor's fees, &c. and make return thereof to the next
superior court of the county, and it shall be the duty of the judge
of said court to order a sale thereof by the sheriff, under the same
regulations as govern sheriff's sales under executions : Provided
nevertheless, that the party charged, or his agent, may replevy
such goods, on putting in sufficient security for the delivery of the
same, or payment of all the expences of said prosecution, convic-
tion, or execution. Act. 1811. p. 141.
All sheriffs on appointing a keeper of the jail to require sufficient
security of him or them. Ib. p. 158.
Sheriffs shall be bound in ten days after they are notified of the
arrival of their commission, to take the oath and give the security
required by law.
If they neglect to take such oath and give such security within
the time aforesaid, it shall and is hereby declared to be the duty
of any three or more of the justices of the inferior court for the
county wherein such neglect or refusal shall have happened, to de-
clare such appointment vacant, and to order another election, by
giving at least twenty days notice in writing, at three or more of
the most public places in the county. Ib. p. 167.
336
SHERIFF.
The several sheriffs within this state who have or may hereat-
ter have in their 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.
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 re-
quired, 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 re-
side, for a rule against such delinquent sheriff to shew cause why
an attachment should not be obtained against him on the usual
term for neglect of duty.
It shall be the duty of the judges of the superior courts, on ap-
plication, to grant such rule and make such order as in their opin-
ion is best calculated to compel the payment of any moneys col-
lected or to be collected by sheriffs as aforesaid, and that all mo-
neys 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.
Act. 1812, p. 92.
In all cases which require the official acts of a sheriff, wherein
he is or may be a party in the case, and no coroner can be obtain-
ed in the 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 authorised to do and perform, in cases where the
sheriff is a party interested. Ib. p. 103.
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 have retired from their respective offices, in
such cases and in like manner as they would have been had they
remained in office. Act. 1813, p. 57.
It shall be lawful for sheriffs, in all cases where a bail or crimi-
nal process is placed in their hands, and the person against -whom
SHERIFF.
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. Act. 1818,
p. 88.
If any officer after the expiration of the time for which he may
have been appointed or elected, shall wilfully and unlawfully with-
hold or detain from his successor the records, papers, documents,
or other writings appertaining and belonging to his office, or mu-
tilate, destroy, take away, or otherwise prevent the complete pos-
session by his said successor of said records, documents, papers,
or other writings, such person so offending shall be sentenced to
pay a fine, and to undergo imprisonment in the common jail of
the county, as the court may order and direct.
If any person shall knowingly and wilfully obstruct, resist, or
oppose any sheriff, coroner, or other officer of this state, or other
person duly authorised, in serving or attempting to serve or exe-
cute any lawful process or order of any court, judge, justice, or
arbitrators, or any other legal process whatever, or shall assault or
beat any sheriff, coroner, constable, or other officer, or person duly
authorised in serving or executing any process or order aforesaid,
or for having served or executed the same, every person so offend-
ing, shall, on conviction, be imprisoned in the common jail of the
county, for any time not exceeding one year as the court may
order and direct; provided, any officer whatever that may or shall
assault or beat any individual under colour of his commission,
without a lawful necessity to do so, shall, on conviction, be im-
prisoned in the common jail of the county for any time not ex-
ceeding one year, as the court may order and direct. P. C. p.
118.
If any sheriff, coroner, keeper of a jail, keeper or other officer
or person employed in the penitentiary, having any offender guilty
or accused of or confined for any crime in his custody, shall
voluntarily permit or suffer such offender to escape and go at large,
every such sheriff, coroner, keeper of a jail, keeper, officer, or
other person employed in the penitentiary, constable or other offi-
cer or person so offending, shall, on conviction, undergo an im-
prisonment in the penitentiary at hard labour, or in solitude, for
any time not less than five'years nor exceeding seven; and shall,
moreover, if a public officer, be dismissed from office.
If any sheriff, coroner, keeper of a jail, or other officer, shall
wilfully refuse to receive any offender charged with or guilty of
2 U
338
SHERIFF.
an indictable offence, or committed as a witness on the part of this
state, or, having such offender or witness in his custody, shall vol-
untarily permit or suffer him or her to escape and go at large, then
every such sheriff, coroner, keeper of a jail, constable or other of-
ficer or1 person so offending, shall, on conviction, undergo an im-
prisonment in the penitentiary, for a period1 of time not exceeding
seven years. P. Ch p. 120.
Sheriff's Fees in Civil Cases.
For serving a copy of a process and returning the original, se-
ven shillings j if more than one defendant, for each additional copy
Served, two shillings and four pence.
Levying execution on the body or property, seven shillings.
Summoning each witness, two shillings and four pence.
On all sums where the execution does not exceed fifteen pounds,
five per centum on the amount of property sold ; on all sums above
fifteen pounds, and where the execution does not exceed one hun-
dred pounds, two and a half per centum ; on all sums where the
execution exceeds one hundred pounds, one per centum ; and that
no commission shall be demanded where property is not actually
sold.
Making out and signing a bill of sale of other property, four
shillings and eight pence: Provided, That fees shall be allowed
only for one bill of sale where the same will be sufficient to con-
vey the property sold to one person or joint purchasers; unless
the purchaser or purchasers shall choose more than one.
Conducting a debtor under confinement before a judge or court,
four shillings and eight pence.
Summoning a jury to try a caveat and attendance, four shillings
and eight pence.
Summoning a special jury and all other services attending trial
of an appeal, four shillings and eight pence.
For a bail bond, four shillings and eight pence.
Making out and executing titles to land, fourteen shillings, (if
wrote by the purchaser, four shillings and eight pence.)
The sheriff shall be allowed for summoning each jury, on a sug-
gestion of fraud in cases of insolvent debtors, the sum of five dol-
lars, to be paid by the creditors who sh^ll require such issue to be
made up.
SHERIFF.
339
In all cases where the treasurer and comptroller general shall
issue executions against delinquent tax collectors, it shall be law-
ful 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, which shall be full compensation for the
trouble and expence of such sheriff or sheriffs in ^collecting and
paying over at the treasury the amount of such execution or exe-
tions as may be placed in their hands as aforesaid: Provided\ that
every sheriff who shall receive said per cent, shall be liable to re-
fund the same to the collector from whom it may be received, if
he does not return the execution and pay over the money collect-
ed thereon for the state at the treasury, on or before the day he
may be required so to do by said execution. Act. 1814, p. 8.
Sheriff"*s Fees in Criminal Cases.
For recommitting any person when a habeas corpus is brought
to his relief, four shillings and eight pence.
Summoning a jury, four shillings and eight pence.
On every copy of a mittimus, one shilling and two pence.
For every mile a prisoner shall be removed on a habeas corpus,
one shilling and two pence.
For removing a prisoner by habeas corpus when no mileage is
paid, per day, four shillings and eight pence.
Executing a criminal, thirty-seven shillings and four pence.
Attending a person taken by a warrant to the judge's chambers,
three shillings and six pence.
Conducting a prisoner before a judge or court to and from jail,
four shillings and eight pence.
Executing a warrant of escape, three shillings and six pence.
Each mile to serve the same, two pence.
Executing and returning a bench warrant, four shillings and
eight pence.
Each mile to serve the same, two pence.
Putting a person in the stocks, two Shillings «and four pence.
For whipping, cropping, or branding a criminal, four shillings
and eight pence.
Apprehending a person suspected, if committed or held to bail,
Pour shillings and eight pence.
340
SLAVES.
For each person, not exceeding two, who may be employed to
guard a prisoner to jail, per day, four shillings and eight pence.
Note.—That the above fees are subject to an increase of 50
per cent, by the act of 1818.
SLAVES.
I. Trial of Slaves.
II. Offences relative to Slaves.
III. Trading -with Slaves.
IV. Duty of Boat owners and PatroonSk
I. Trial of Slaves.
1. By the act of 1811, it is declared, that upon complaint be-
ing made to or information received upon oath by any justice of
the peace, of any crime having been committed by any slave or
slaves within the county where such justice is empowered to
act, such justice shall by warrant from under his hand, cause
such slave or slaves to be brought before him, and give notice
thereof in writing to any two or more of the nearest justices of
the peace of said county, to associate with him on a particular day
in said notice to be specified, not exceeding three days from the
date of said notice, for the trial of such slave or slaves. And the
justices so assembled shall forthwith proceed to the examination
of a witness or witnesses, and other evidence, and in case the of-
fender or offenders shall be convicted of any crime not capital, the
said justices or a majority of them shall give judgment for the in-
flicting any corporal punishment, not extending to the taking away
life or member, as in their discretion may seem reasonable and just,
and shall award and cause execution to be done accordingly. And
in case it should appear to them after investigation, that the crime
or crimes wherewith such slave or slaves stand charged, is a crime
or crimes for which he, she or they ought to suffer death, such
slave or slaves shall immediately be committed to the public jail
of said county, if any, provided it should be sufficient, or to the
custody of the sheriff of said county, or to the nearest sufficient
jail thereto.
SLAVES.
341
2. The said justices shall, within three days next thereafter,
give notice in writing to one of the justices of the inferior court
of said county, of such commitment, with the names of the wit-
ness or witnesses, and such justice of the inferior court shall,
within three days after the receipt thereof, give notice in writing
of such commitment to the justices of the inferior court, or a ma-
jority of them, together with the clerk of said court, requiring
their attendance at the court-house of said county, on a particular
day in said notice to be specified, not exceeding five days from the
date thereof, for the trial of such slave or slaves, and shall also at
the same time direct the sheriff of said county, whose duty it shall
be to summon a jury of twelve free white persons of said county,
to be drawn in the manner hereinafter pointed out, to attend in
like manner,
3. It shall be the duty of such justices, clerk and jurors, to at-
tend accordingly, and the said court when so assembled, shall cause
the clerk of said court to commit the charge or accusation alleged
against such slave or slaves in writing, therein particularly setting
forth the time and place of the offence, and the nature thereof.
4. The said court shall cause twelve persons of those summon- i
ed to be empannelled and sworn (the usual oath on such occasions
made and provided) as jurors, to whom the said charge or accusa-
tion in writing and the evidence shall be submitted.
5. The said jurors by their verdict shall say, whether such slave
or slaves are guilty or not guilty, and if a verdict of guilty should
be returned by such jury, the court shall immediately pronounce
sentence of death by hanging, or such other punishment not
amounting to death: Provided, That the said court by their sen-
tence so to be pronounced as aforesaid, shall not suspend such .
execution for more than thirty days, nor less than five days, next
after .such sentence. Provided nevertheless, That in all cases where
the sentence does not extend to death, the punishment shall be in-
flicted as soon as convenient, at the discretion of said court.
6. The said court so constituted as aforesaid, shall immediately
proceed to such trial, unless it should appear necessary for the
said court, either for the want of sufficient proof or any other suf-
ficient reason, to delay the same, as in their judgment may seem
for the furtherance of justice.
7. It shall be the duty of the clerk to make a record of the pro-
ceedings against such slave or slaves, separate and distinct from
other records of his office, and also issue subpcenas and other writs
342
SLAVES.
necessary to procure the attendance of'a witness or witnesses at
the instance of either party, and that in all cases respecting the ad-
mission of evidence against people of colour, it shall be the same
as heretofore practised in this state.
8. This section is altered and repealed by the 9th section of the
act of 1816, which stands in lieu of it.
9. The owner or manager of such slave or slaves, shall have
the right of challenging seven of the said number summoned, and
the said court five, on the part of the state, and the remaining
twelve shall proceed to the trial of such slave or slaves. Act.
1811. p. 50.
1. By the act of 1816, it is declared, that the following shall be
considered as capital offences when committed by a slave or free
person of colour; insurrection, or any attempt to excite it, poison-
ing or attempting to poison, committing a rape or attempting it
on a free white female ; assaulting a free white person with intent
to murder, or with any weapon likely to produce death; maiming
a free white person ; burglary or arson of any description as con-
tained in the penal code of this state ; murder of another slave or
free person of colour : every and each of these offences shall, on
conviction, be punished with death. And if any free person of
colour commits the offence of inveigling or enticing away any
slave or slaves for the purpose of and with the intention to aid and
assist such slave or slaves leaving the service of his or their own-
er or owners, or in going to another state ; such person so offend-
ing, shall for each and every such offence, on conviction, be con-
• fined in the penitentiary at hard labour for one year, and at the
expiration of their imprisonment to be sold to the highest bidder
as a slave, for and during the term of their natural lives.
2. All other offences committed by a slave or free person of
colour, either against persons or property, or against another slave
or person of colour, shall be punished at the discretion of the
court before whom such slave or person of colour shall be tried;
such court having in view the principles of humanity in passing
sentence, and in no case shall the same extend to life or limb.
3. In every case of conviction for a capital felony, the owner of
the slave, or guardian of the free person of colour convicted, may
apply to the court before which the conviction shall have taken
place, and obtain a suspension of the execution of the sentence,
for the purpose of applying to the governor for a pardon ; and it
shall be in the power of the governor to grant said pardon, or to
SLAVES.
343
commute the punishment of death for that of imprisonment for
life in the penitentiary, or for such a period of time as he may
think proper to order and direct*.
4. And on conviction for any other offence not punishable with
death, the court may at its discretion grant a suspension of th$
execution of the sentence, for the purpose of enabling the owner
of a slave, or guardian of a free person of colour, to apply to the
governor for a pardon or commutation of the punishment in such
manner and upon such terms and conditions as he may think pro-
per to direct.
5. On the trial of a slave or free person of colour, any witness
shall be sworn who believes in God and a future state of rewards
and punishments.
6. Every slave or free person of colour charged with any offence
contained in this act, shall be arrested and tried, pursuant to an
act, entitled, an act to establish a tribunal for the trial of slaves
within this state, passed the 16th day of December, 1811, and the
7th, 8th, and 9th sections of this act, and shall receive sentence
agreeably to the requisitions contained in this act.
7. From and after the first day of March next, when any jus-
tice of the inferior court shall have received notice of the com-
mitment of any slave or slaves, or free persons, or persons of co-
lour, (under the description of a free negro or negroes, mulatto or
mustizo) to jail in pursuance of the second section of an act, en-
titled an act to establish a tribunal for the trial of slaves in this
state, passed the 16th day of December, 1811 ; that it shall be the
duty of the said justices of the inferior court, within three days
after the receipt thereof, to give notice in writing of such commit-
ment to the justices of the inferior court, or a majority of them,
together with the clerk of said court, requiring their attendance at
the court house of such county where such slave or slaves, or per-
son or persons of colour as aforesaid, may have been committed,
on a particular day in said notice to be specified in writing, not ex*-
feeding ten days from the date of said notice.
8. Where any jury may find a verdict of guilty against any such
slave or slaves, or person or persons of colour, as aforesaid, in
pursuance of the 5th section of the act referred to in the preced-
* The latter part of this section is repealed by the 1st section of tire act of
1817; which see after.
044
SLAVES.
ing section, it shall and may be lawful for the said court to suspend
the passing sentence against such slave or slaves, or person or
persons of colour as aforesaid, for any term of time not exceeding
two days.
9. So much of the 8th section of the before recited act as re-
quires the justices of the inferior courts in this state to draw a
jury of thirty-six, at their regular terms for the trial of such slave
or slaves, person or persons of colour as aforesaid, shall be, and
the same is hereby repealed, and in lieu of such regular drawing
of jurors, it shall be the duty of such justices or a majority of
them forthwith after being notified of such commitment as afore-
said, to cause to be drawn fairly and impartially from the jury
box, the names of persons subject to serve as jurors not less than
twenty-six, nor more than thirty-six jurors, who shall be summon-
ed according to the requisitions of the before recited act, to attend
at the time and place pointed out for the trial of such slave or
or slaves, or person or persons of colour, by the said justices of
the inferior court. Act. 1816, p. 15.
1. The above act of 1816 was amended by the act of 1817, in
which last act it is declared, that so much of the third section of
the above recited act as authorises the governor to commute the
punishment of death, for that of imprisonment in the penitentiary,
be and the same is hereby repealed.
2. In all cases where the jury on the trial of any slave or free
person of colour, shall return a verdict of guilty, the coi^rt shall
pass the sentence of death on such slave or free person of colour,
agreeably to the requisitions and subject to the same restrictions
as are required by the before recited act, or proceed to inflict such
other punishment as in their judgment will be most proportionate
to the offence, and best promote the object of the law, and operate
as a preventive for like offences in future.
3. In all prosecutions for a capital offence against any slave or
free person of colour, the clerk of the inferior court shall act as
the prosecuting officer in behalf of the state. Act. 1817, p. 66.
The said justices or any of them are hereby authorised, empow-
ered, and required to summon and compel all persons whatsoev-
er, to appear and give evidence upon the trial of any slave, and if
any person shall neglect or refuse to appear, or appearing shall
refuse to give evidence, or if any master or other person who has
the care and government of any slave shall prevent and hinder
any slave under his charge and government from appearing and
SLAVES.
345
giving evidence in any matter depending before the justices and
jury as aforesaid, the said justices may, and they are hereby fully
empowered and required, upon due proof made of such summons
being served, to bind every such person offending as aforesaid,
by recognizance with one or more sufficient sureties, to appear at
the next superior court to answer such their offence and contempt,
and for default of finding sureties, to commit such offenders to
prison, for any term not exceeding the space of two months.
In case the master or other person having charge or govern-
ment of any slave who should be accused of any capital crime,
shall conceal or convey away any such slave, so that he cannot be
brought to trial and condign punishment, every master or other
person so offending shall forfeit a sum not exceeding two hundred
pounds sterling, if such slave be accused of a capital crime as
aforesaid; but if such slave be accused of a crime not capital,
then such master or other person shall only forfeit a sum not ex-
ceeding twenty pounds stealing, to be paid to the treasurer for the
use of the public. 'M. & C. 431,432.
II. Offences relative to Slaves.
It shall not be lawful, except in the cases herein authorised
and allowed, for any person or persons whatsoever to bring, im-
port or introduce into this state, to aid or assist, or knowingly to
become concerned or interested in bringing, importing or intro-
ducing into this state, either by land or by water, or in any man-
ner whatsoever, any slave or slaves ; and each and every person
or persons so offending shall be deemed principals in law, and
guilty of a high misdemeanor, and may be arrested and tried in
any county in this state in which he, she or they may be found,
and on conviction, shall be sentenced to pay a fine of five hundred
dollars each, for each and every slave so brought,imported or intro*
duced, and to undergo an imprisonment in the penitentiary at hard
labour, for any period of time not less than one year, nor longer than
three years. Provided always, That this act shall not extend to any
citizen of this state residing or domiciliated therein, nor to any citi-
zen of any other state coming into this state with intent to settle
and reside, and who shall on so coming in, actually settle and reside
therein, who shall bring, import or introduce into this state any
slave or slaves, for the sole purpose of being held to service ©r
2.X
54a
SLAVES.
labour by the peison or persons so bringing, importing or intro-
ducing such slave or slaves, his heirs, executors or administrators,
and without intent to sell, transfer, barter, lend, hire, mortgage,
procure to be taken or sold under execution, or other legal pro-
cess, or in any other way or manner, to alien or dispose of such
slave or slaves, so as to vest the use and enjoyment of the labour
or service of such slave or slaves, in any other person or persons
than the person or persons so bringing, importing or introducing
such slave or slaves, or in his or her heirs, executors, administra-
tors or legatees, whether such sale, transfer, barter, loan, hiring,
mortgage, procurement of levy, or sale under execution, or other
legal process, or alienation or disposition of such slave or slaves,
shall be for the life or lives of such slave or slaves, or for any other
period of time. And provided further, that any person or persons
hereby authorised to bring, import or introduce any slave or slaves
into this state, shall, before such slave or slaves is or are actually so
brought, imported or introduced therein, go before the clerk of the
superior court of some county in this state, and make and subscribe
an affidavit in writing, which shall be lodged with such clerk,
stating that he or she is about to bring, import and introduce into
this state a slave or slaves in terms of this act, particularly describ-
ing such slave or slaves by their names, age, and qualifications;
that he or she is the true and lawful owner of such slave or slaves;
that the said slave or slaves is or are about to be brought, import-
ed or introduced into this state, for the sole purpose of being held
to service and labour by him or her, his or her heirs, executors, ad-
ministrators or legatees, and without any intent to sell, transfer,
barter, lend, hire, mortgage, procure to be taken or sold under
execution, or other legal process, or in any way or manner to alien
or dispose of said slave or slaves, so as to vest the use or enjoy-
ment of the labour or ser ice of such slave or slaves in any other
person or persons, either for the life or lives of said slave or
slaves, or for any other period of time, or in any way or manner
to defeat, avoid, or elude the true intent and meaning of this act;
and a similar oath stating the actual importation of such slave or
slaves, shall be made by such person before the clerk of the supe-
rior court of the county where such person resides, or intends to
settle and reside, of which a certificate shall in each case be granted
by such clerk; and it is hereby further provided,, that no person
whatever shall be exempted from the penalties of this act, who
shall fail or neglect to comply with the requisites of the foregoing
SLAVES.
<54 7
section, or making and subscribing the said affidavits in manner
and form as is therein specified and set forth; and in all cases of
prosecution under this act, it shall be sufficient in the indictment
to allege, that the slave or slaves was or were brought, imported
or introduced into this state contrary to the true intent and mean-
ing of this act j and any person or persons claiming an exemption
from the penalties thereof, shall plead specially such his defence,
and shall be held to due proof thereof; and the jury shall be
specially charged, to enquire into the intent of such person or
persons, which intent may be inferred from the circumstances of
the case ; but any sale, transfer, barter, loan, hiring, mortgage,
procurement of levy or sale under execution, or other legal process,
or other alienation or disposition of such slave or slaves for the
life or lives of such slave or slaves, or for any other period of
time, or any offer to sell, transfer, barter, lend, hire, mortgage,
procure to be levied or sold under execution, or other legal pro-
cess, or in any way or manner to alien or dispose of such slave or
slaves, for the life or lives of such slave or slaves, or for any other
period of time, so as to vest the use or enjoyment of the labour or
services of such slave or slaves, for the life or lives of such slave or
slaves, or for any other period of time, in any other person or persons
than the person or persons so importing or introducing such slave
or slaves into this state, his or her heirs, executors, administrators
or legatees, contrary to the true intent and meaning of this act, if
made within one year after such slave or slaves shall have been
brought, imported or introduced into this state, shall be conclu-
sive evidence of such unlawful intent in violation of this act.
And provided further, that this act shall not extend to prevent
any person travelling into this state, from bringing therein any such
slave or slaves as may be needful for his comfortable and usual at-
tendance upon his journey, nor to any person or persons bringing
into this state any slave or slaves found on board any ship or
vessel which may be taken as a prize of war, or seized for an in-
fraction of any law of the United States, and brought into this
state in such ship or vessel at the time of such capture or seizure;
but it shall notbe lawful to sell, or in any manner contrary to this
act to dispose of said slave or slaves within this state ; and such
sale or other disposition of such slave or slaves, in any way or
manner forbidden by this act, or offer so to sell or dispose of the
same, shall be conclusive evidence of an intent to bring such
slave or slaves into this state, contrary to the meaning of this act*
346
SLAVES.
and shall subject the party so offending to the line and imprison,
ment herein before specified and set forth : and the same obliga-
tions shall be imposed upon any person or persons claiming an ex-
emption, under this section, from the penalties of this act. The
same rules shall obtain as to the pleadings and evidence, and the
jury shall exercise the same power of judging of the fairness of the
intent, as is given and are provided in the preceding part of this
section j and if any person or persons whatsoever, shall at any
time from and after the first day of February next, purchase, hire,
receive, or get into his or her possession, any slafve or slaves,
knowing the said slave or slaves to have been imported or intro-
duced into this state illegally and contrary to the true meaning and
intent of this act, each and every person or persons so offending
shall be deemed principals in law, and guilty of a high misde-
meanor; and on conviction thereof, shall be subject to the same fine
as herein before specified and set forth, against persons bringing,
importing, or introducing any slave or slaves into this state, contrary
to the provisions of this act; and it shall be the duty of all and every
civil and militia officer in this state to aid and assist in carrying
this law into effect; and this act shall not be construed to extend
to prevent any person or persons from giving, hiring, or loaning
any negro or negroes to their legal child or children for one year
or more, and who shall retain him, her, or them, or shall be sub-
ject to the penalties of the aforesaid act.
It shall be the duty of every clerk of the superior court, before
whom any oath required to be taken by this act shall be made, to
keep a bound book, in which shall be recorded the affidavits re-
quired to be made, and the certificates necessary to be given
agreeable to the provisions of this act, previous to the introduc-
tion of any slave or slaves into this state ; and also to record in
said book all other instruments of writing or statements which
may be necessary to be given by him, or may be necessary to be
made to him, for carrying the intentions and provisions of this act
into effect; and every such clerk shall receive as a compensation
for the services rendered necessary to be performed by him by
virtue of this act, the sum of two dollars, to be paid by the person
for whose interest such services may be performed.
If any person shall conceal, harbour, hide, or cause to be con-
cealed, harboured, or hidden, any slave or slaves, to the injury
of the owner or owners thereof, such persons so offending
^hall on conviction be sentenced to be imprisoned in the peniten-
SLAVES.
349
tiary at hard labour for any period of time not exceeding two
yesrs : Provided, nevertheless, that on the trial for this offence, the
person charged with it shall be acquitted, if he or she had an ap-
parent well-founded claim to the slave or slaves so harboured and
concealed j and on every conviction for concealing or harbouring
a slave or slaves, the owner or owners of such slave or slaves may
recover damages by a civil suit for the loss of the labour and ser-
vices of such slave or slaves, notwithstanding the said convic-
tion.
If any person shall remove or carry, or cause to be removed and
carried away out of this state, any slave or slaves, or out of the
county where such slave or slaves may be, without the consent of
the owner or owners of said slave or slaves, any person so offend-
ing, shall, on. conviction, be sentenced to undergo an imprisonment
in the penitentiary at hard labour, for any period of time not ex-
ceeding seven years.
Any person except the owner, beating, whipping, or wounding
a slave, or person or persons beating, whipping, or wounding a
free person of colour without sufficient cause or provocation be-
ing first given by such slave or free person of / colour, may be in-
dieted, and, on conviction, shall be fined or imprisoned, or both,
at the discretion of the court j and the owner of such slave, or the
guardian of such free person of colour, may, notwithstanding such
conviction, recover in a civil suit, damages for the injury done to
such slave or free person of colour..
Any owner or owners of a slave or slaves, who shall cruelly
beat such slave or slaves by unnecessary and excessive whipping,
by withholding proper food and sustenance, by requiring greater
labour from such slave or slaves than he or she, or they, are able
to perform, by not affording proper clothing, whereby the health
of such slave or slaves may be injured and impaired, every such
owner or owners shall, upon sufficient information being laid be-
fore the grand jury, be by said grand jury presented, whereupon
it shall be the duty of the attorney or solicitor general to prose-
cute said owner or owners, who, on conviction, shall be sentenced
to pay a fine or be imprisoned, or both, at the discretion of the
court. P. C. p. 143.
A slave committing a crime, which if committed 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
SLAVES.
found guilty j and it appearing from all the facts and circumstan-
ces of the case that the crime was committed by the threats, com-
tnand and coercion of the owner or the person exercising or as-
suming authority over such slave ; he or she, the said owner or
person, shall be prosecuted for, and if found guilty of the crime,
shall suffer the same punishment as he or she, the said owner or
other person would have incurred, if he or she, or said other per-
son had actually committed the offence with which the slave is
charged. Ib. p. 93.
Exciting an insurrection or revolt of slaves, or any attempt by
writing, speaking or otherwise, to excite an insurrection or revolt
of slaves, shall be punished with death. Ib. p. 95.
Killing a slave in the act of revolt, or when the said slave resists
a legal arrest, shall be justifiable homicide. Ib. p. 98.
Any person who shall feloniously take and carry away a slave
shall be punished by imprisonment at hard labour in the peniten-
tiary for any time not less than three years, nor longer than seven
years.
If any person or persons shall by enticement, or by giving a pass,
or by any other means induce a slave or slaves to run away from
his, her or their owner or owners, with an intention feloniously to
sell said slave or slaves, or otherwise to deprive the said owner or
owners of the services of said slave or slaves, such person or per-
sons so offending, shall be punished by imprisonment at hard la-
bour, for any time not less, than three years, nor longer than seven
years. Ib. p. 107.
If the owner or owners of any slave shall permit such slave, for
a consideration or otherwise, to haye, hold and enjoy the privilege
of labouring or otherwise transacting business for him, her, or
themselves, except on their own premises, such owner or owners
shall, for every such weekly offence, forfeit and. pay the sum of
thirty dollars, except in the cities of Savannah and Augusta, and
the town of Sunbury. Clay. Dig. 133.
III. Trading witfi Slaves.
If any person or persons shall buy or receive from any slave or
slaves, any amount of money exceeding one dollar, cotton, tobac-
co, wheat, rye, oats, corn, rice, or poultry of any description what-
ever, or any other article, commodity or thing, (except such as are
hereinafter enumerated, to wit: brooms, baskets, foot and bed
SLAVES.
mats, shuck collars, and such other thing or things, article or arti-
cles as are known to be manufactured or vended by slaves for their
own use only) without a ticket authorising such slave or slaves to
dispose of said money or other article, which ticket such person so
trading is and are hereby required to keep for his, her or their only
justification, which such slave or slaves may intend to dispose of, spe*
cifying the amount or quantity so intended to be disposed of, from
his, hef or their owner, overseer or employer, such person or per-
sons so offending on information made on oath in writing before any
judge of the superior court, justice of the inferior court, or jus-
tice of the peace, charging the commission of said offence, it shall
then be the duty of such officer before whom such information
shall have been made, to grant and issue his warrant, directed to
all and singular the sheriffs and constables of said state, requiring
them to apprehend the body of the said person or persons so char-
ged, and to take him, her or them before the officer issuing said
warrant, or some other judge of the superior court, justice of the
inferior court, or justice of the peace in the county where the par-
ty so charged may be apprehended, whose duty, it shall be to bind
the persbn or persons so charged, in a bond with good and suf-
ficient security for double the amount of the penalty for the of-
fence, over to .the next superior court in the county where the of-
fence may have been committed, for the personal appearance of
said party, so as aforesaid charged.
If the party so charged, fail to give sufficient security for his,
her or their personal appearance at the next superior court to an-
swer said charge, it shall then be the duty of the officer before
whom such person or persons shall stand charged to commit him,
her or them to the common jail in the county where the offence
shall have been committed ; and should there be no jail in that
county, to the most safe and convenient jail'in any of the adjacent
counties, there to remain till the next superior court in the county
where said offence is charged to have been committed, or until
they shall give bail.
It shall be the duty of the attorney general or solicitor general
in their respective circuits, to cause the party or parties so recog-
nized or held in custody for a violation of this act, to be indicted
for said offence, and on conviction the court shall impose a fine of
not more than five hundred dollars, with the cost of the prosecu-
tion ; and imprisonment in the common jail of the county, or some
352
SLAVES.
other safe and convenient jail, for a period not longer than six
months.
If any slave or slaves shall be found in any store-house or tip-
pling-shop, unless sent by his, her or their owner, overseer, or
employer, after the hour of nine o'clock at night, or before day-
break in the morning, or pn the Sabbath day, it shall be taken and
received as presumptive evidence against the person or persons
owning, or person keeping the store or tippling shop, of a viola-
tion of this act, which presumption may be rebutted by any other
circumstances in favour of the accused.
If any slave or slaves, or free persons of colour, shall purchase
or buy any of the aforesaid commodities from any slave or slaves,
he, she or they, on conviction thereof before any justice of the
peace, contrary to the true intent and meaning of this act, shall
receive on his, her or their bare back or backs, thirty-nine lashes,
to be well laid on by any constable of said county, or other per-
son appointed by the justice of the peace for that purpose : Pro-
vided, That nothing herein contained, shall prevent any slave or
slaves from selling poultry at any time without a ticket in the coun-
ties of Liberty, M'Intosh, Camden, Glynn, and Wayne.
It shall be the duty of the judges at the commencement of every
court, to give in charge to the grand jury the substance and inten-
tion of this act.
If any person should sell or deliver to any slave or slaves, any
goods, wares, or merchandize, or any other thing or things, unless
it be at the time and in exchange for some article or articles, and
which the owner or manager of such slave or slaves may have
authorised him, her or them to trade or deal in, according to the
provisions of this act, such person so offending shall be adjudged,
deemed and held to be guilty of a violation of this law, and may
be indicted for the same, and on conviction shall suffer the same
punishment as is herein pointed out, to be inflicted on persons of-
fending against the provisions of this act. Act. 1818, p. 123.
IV, Duty of Boat Owners and Patroons.
It shall not be lawful for any negro slave or other person of
colour, to have the command of, or to act as patroon of any boat
carrying goods, wares, and merchandize or produce between the
cities of Savannah and Augusta, or from either of the said cities
to the other.
SLAVES.
353
Persons transgressing this act shall be liable to indictment in the
superior courts of this state, and^ on conviction thereof, shall for-
feit and pay the sum of two hundred dollars, one half thereof to
the use of the informer, and the other half to the use of the county
where such conviction shall take place ; and the party so offending
shall moreover be liable for all losses which may happen to the
owners of property on board such boats, the usual dangers of the
river, and other exceptions not excepted. Clay. Dig. 332.
It shall not be lawful for any owner or patroon of a boat to suf-
fer or permit any boat-hand, or negro, being a slave, to put on
board their boat, whereof he is owner or patroon, any corn, cot-
ton, peas, or other article of produce as the property of such boat-
hand, or negro, for the purpose of carrying the same to Savannah
or elsewhere, to market, or for sale j nor shall such owner or pa-
troon suffer the boat-hands, or other negroes, being slaves as
aforesaid, on board of their boat or boats, to barter or trade the
one with the other, in any article of produce as before enumerated,
under any pretext whatever.
Any owner or patroon offending against the provisions of the
first section of this act, shall be subject to indictment in the supe-
rior court of the county in which the offence shall be committed,
and, upon conviction thereof, shall be fined or imprisoned, or both,
at the discretion of the court before whom such indictment shall
or may be tried. Act. 1816. p. 21.
The provisions of the act of 1816 is extended to all the navi-
gable water courses in the state, and the offences against said act
maybe tried and punished in any of the counties adjoining the
water course on which they were committed. Act. 1817. p. 21.
See Free Negroes and Patroons.
354 SODOMY AND BESTIALITY.
SMALL POX.
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 permission from the in-
ferior court of the county where the small pox shall make its ap-
pearance, shall be indicted, and on conviction fined in a sum not
exceeding one thousand dollars, and moreover be imprisoned at
the discretion of the court. P. C. p. 128.
SODOMY AND BESTIALITY.
Sodomy and bestiality shall be punished by imprisonment at hard
labour in the penitentiary, during the natural life or lives of the
person or persons convicted of these detestable crimes, or either
of them. P. C. 101.
An attempt to commit sodomy or bestiality, shall be punished
by imprisonment at hard labour in the penitentiary, for a term
not less than two years nor longer than three. Ib.
For the information of some magistrates it may perhaps be ne-
cessary to observe, that the above terms are the same as buggery,
and this last is defined " to be a detestable and abominable sin
among christians not to be named, committed by carnal know-
ledge against the ordinance of the creator and order of nature, by
mankind with mankind, or with brute beast, or by woman kind
with brute beast." 3 Inst. 58.
For the honour of human nature it is hoped that this crime is
seldom committed. Should a magistrate, however, have to act in
such a case, he can, in his warrant and other proceedings, describe
the offence by barely mentioning the above terms of sodomy and
bestiality, which is considered as a sufficient description.
Stealing. See Larceny.
SUMMONS.
355
Stolen Goods. See Search Warrant.
SUNDAY. See Vice and Immorality.
It shall not be lawful for any sheriff, or other officer, to execute
any writ or other process upon a Sunday, and all such service of
process shall be void; except the process be issued for treason,
felony, riot, rescous, breach of the peace, or upon an escape out
of prison or custody, for such process may be executed at any
time or place.
Surety for the Good Behaviour. See Behaviour,
Surety for the Peace. See Behaviour.
SUMMONS.
It being a principle of justice, that no person shall be condemned
unheard ; whenever a complaint is lodged against an offender, the
magistrate should cause him to be brought before him, either by
warrant or summons j where a statute directs a particular mode
of convening the party, that mode should be strictly pursued ; but
where it is left discretionary with the magistrate, a summons
seems the most proper process. Yet in cases of surety for the
peace, petty larcenies, and other felonies, and generally where the
state is party, and also in cases between party, and party, where
the offender is liable, a warrant is a regular process, and not a
summons.
SUMMONS.
In a summons it is usual and upon many accounts convenient,
to fix not only a day but a particular time of the day for the par-
ty's appearing, but if he shall appear at the time, and the said
justice shall not attend, he is not to go away, but must wait the
remaining part of the day, for many things may happen to pre-
vent the justices, immediate attendance. So in the case of the exe-
cution of a writ of enquiry, where the plaintiff having attended at
the hour appointed, and the sheriff not then attending, went away,
and the writ was executed afterwards on the same day in his ab-
sence, the court held that the execution was regular, and he ought
to have waited j for the sheriff might have prior business to at-
tend to, which may last beyond the hour: and it is never under-
stood that the time on these occasions is to be scrupulously ad-
hered to, Doug. 188.
Swearing and Cursing. See Vice and Immorality.
Swindling. See Cheat*
TAXES.
357
TAXES,
I. Subjects of Taxation.
II. Duty of Receivers.
III. Duty of Collectors.
IV. Duty of Other Officers^ and objects not belonging to the
above heads.
I. Subjects of Taxation.
Table of the rates on land throughout the state.
[Note—the letters C and M in the table, denote cents and mills.]
Quality.
1st 2d 3d
CM C M C M
On each acre of all tide swamp, including isl-
ands - - - - -37237
On all pine lands, adjoining or contiguous to
such tide swamp, or within three miles of
water carriage ----- 6
On every acre of piime or inland swamp - 2 6 1 4 6
On all pine lands adjoining or contiguous there-
to, and all salt marsh - 1§
On all high river, swamp, or low grounds, in-
eluding islands and second low grounds, ly-
ing above Abercorn creek, and as high as the
mouth of M'Bean's creek on Savannah river 19 12 6
On all high river swamp, lying above M'Bean's,
and as high as the mouth of Rae's creek 2 9 19 8
On all high river swamp, lying above the mouth
of Rae's creek, to the mouth of Broad river,
on Savannah river - - - - -15 8| 2|
On all oak and hickory lands including islands
from the mouth of Rae's creek, to the mouth
of Broad river, and within a mile of Savan-
nah river - -- -- - 6 2§1£
Cj 8
TAXES
Quality.
1st 2d 3d
CM C M| CM
On all oak and hickory lands, including islands,
from the mouth of Broad river and up the
Savannah river, in one mile, thereof, and up
Tugalo to the marked line 4% 25 1
On all oak and hickory lands, including isl-
ands from the mouth of Broad river to the
marked line on the head thereof - 4\ 25 1
On all high river swamp, or low grounds, in-
eluding islands, from Fort Argyle to the
mouth of Buck Head creek, on Ogeechee
river - - - - 4 25 15
On all oak and hickory lands as aforesaid, from
the mouth of Buck Head creek, to the head
of Ogeechee river - - - - - 6 25 1 \
On all high, river, swamp, or low grounds, in-
eluding islands, from the mouth of Buck
Head creek, to the head of Ogeechee river 6 7i 15
On all high river swamp including islands,
from Cat Head on the river Altamaha^ to
the mouth of Oconee river - - - 8| 4| 11
On all high river swamp, or low grounds, from
the mouth of Oconee river, along the north-
era stream, to the confluence of the Oconee
and Apalatchee - - - - -12 6 15
On all river swamp as aforesaid, from the
confluence of said last mentioned rivers, up-
wards to the north side of the temporary line 75 5 25
On all other oak and hickory lands throughout
this state ------ 4s 25 H
On all oak and hickory lands, including islands,
above the flowing of the tide, on all rivers
from Cat Head, to the river St. Mary's in-
elusive, to the marked line aforesaid - 25 15 I
On all lands on the Sea islands, or lying con-
tiguous~to the sea shore, usually cultivated
or capable of cultivation in corn, indigo, or
cotton - - - - - - -15 8|4
On all other pure lands throughout the state I
TAXES. 059
The tax on all high river, swamp, and low grounds, on the
south side and adjoining thereto, of the Oconee river, and on the
north side and adjoining thereto, of the river Ocmulgee, the same
assessment as by the above table is levied on lands of the same
quality, on the north side of the Oconee river, and on all other
oak and hickory land, and pine land lying between and in the fork
of said rivers, the same assessment as in the other counties of the
state.
Table of other Property throughout the State.
8 C.
On all free male white persons,, of the age of twenty-
one years and upwards, - -- -- -- -- 31|
On all negroes and other slaves under sixty years, - 31J
On every hundred dollars value of lots, wharves, or
other lands not mentioned, and all other buildings
within the limits of any town, village, or borough, 31*
On all male free negroes, of the age of twenty-one
and under sixty years, besides their other taxable
property, - - - - - - ------- 4 00
On all negroes of the same description, who may have
come into the state since the first day of March,
i 808, for the purpose of settlement ----- 100 00
On every hundred dollars value of stock in trade, to
be computed at prime cost, and returned as the
highest estimation of said stock, at any time within
three months, prior to the first of January in the
year it is returned, - -- -- -- --
On all four wheeled carriages, (wagons excepted)
On all two wheeled carriages (carts and drays excepted)
On all practitioners of law or physic, -----
On all billiard tables,^ --------
On all E. O. tables, or other instruments of like con-
struction, - -- -- -- --
On every hundred dollars value of bank s
On every stallion the season of one mare,
31-1
1
00
1
50
4
00
■ 50
00
1000
00
31*
* For mode of collecting taxes on billiard and E. O. tables, sfie Clay. Dig. p.
228.
860
TAXES.
8 C
On the amount of sales of lottery tickets, upon schemes
of other states, sold or disposed of in this state, to
be paid by the seller of tickets, five per cent.
On all factors and brokers, and on all wares, liquors,
and merchandize, sold or bought by them, - - - 4 00
On every $100 dollars by them sold or disposed of,
to be given in upon oath, - -- -- -- - 18]
II. Duty of Receiver.
There shall be a receiver for each county, throughout this state,
and the mode for taking the returns shall be as follows: the re-
ceiver shall give notice to each captain's district by advertising in
the most public place thereof, giving ten days notice of the day
and place he will attend to receive returns ; such receiver shall
attend in each district as aforesaid, three different days previous
to his making return of defaulters, which days shall not be within
seven days of each other j and the commanding officer in each
district shall give to the receiver, on oath, a list of inhabitants
liable to pay taxes in his district, under the penalty of thirty dol-
lars, in case of failure, to be recovered before any justice of the
peace within the county, one half to the person suing for the same,
the other for the use of the poor of the county. And it shall be
the duty of the receiver, at all times, upon personal application, to
receive the returns not given in at the time and place specially
notified, at any time before he makes a digest of the whole re-
turns. Before entering on his duties the receiver is bound to take
an oathfr—for which see Oaths. Clay. Dig. 230.
All persons liable to pay tax, shall give in a list of their taxable
property, as well as a list of the property of those for whom they
are agent, attorney, executor or administrator, in the county
wherein such representative may reside, describing as near as pos-
sible, from plats, deeds, or other documents, the particular situa-
tion of land, if any, in what county, on what particular water
course, what lands adjoining, for whom surveyed, and to whom
granted ; and the receiver shall make a general digest, and return
the whole of the taxable property received as aforesaid, and also
of the taxable property of non-residents and defaulters within his
county, and shall transmit three copies, one to the collector of the
county, one to the clerk of the inferior court, and the other to the
TAXES.
361
comptroller-general, under the penalty of one thousand dollars for
each offence, including therein his own taxable property : and said
receivers are to be paid seven and a half per cent, on the amount
of property returned and paid by the collectors as hereinafter
mentioned. Clay. Dig. 230.
The receivers shall receive returns until the first day of August
in each year. Act. 1813. 8.
They shall, on or before the first Monday in November, in each
year, deliver the several digests, and perform all other duties re-
quired of them. Ib.
They shall give at least twenty days notice at the muster ground,
in each captain's district, of the time of expiration for receiving of
lists, together with the names of persons who have not then given
in their lists, and immediately after said time has expired, they
shall make out a fair list of the persons in default, and advertise
the same at each captain's muster ground and no where else,
Ib. 9.
They shall not receive from any collector their commissions
until they produce to the collector the comptroller-general's re-
ceipt for the digest required to be deposited in his office, in which
receipt shall be specified the amount of commissions due the re-
ceiver. Act. 1812. 107.
They are authorised and required to receive returns for all
years since 1800, inclusive, where any county is in default for
not having made their returns as required by law, and the taxes
are to be assessed agreeably to the tax laws in force at the time
such default happened. Act. 1813. 11.
They are responsible to the executive department, and amenable
to such rules in conducting the duties of their office as the execu-
tive may think necessary and proper. Clay. Dig. 230.
All persons liable to pay taxes, are bound to give in a true list
upon oath, of all their taxable property to the receivers, and the
latter are bound to administer the oath to such persons in every
case gratis. For the oath, see Oaths. Ib. 232.
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
• 2 Z
362
Taxes.
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. Ib. 233.
Where they shall discover that any taxable property has not
been returned as directed by law, they shall summon three free-
holders, residents of the district where such property may lie or
be, to ascertain the quality of the lands, if any, or other property,
and double the tax thereon. Ib. 234.
If any receiver makes a false return, expressive of more or other
than is to him given in, he shall forfeit and pay to the party ag-
grieved, a sum equal to double the amount of the taxes on the
property so illegally returned. Ib. 237.
And if he shall render an incorrect statement of the taxes due
from his county, he shall be liable for the amount of each deficiency,
whether in favour or against the state } and the comptroller is
authorised to deduct the same from 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. Clay. Dig. 680.
Receivers are bound in ten days after they are notified of the
arrival of their commission, to take the oath required by law, and
upon failure to do so, three or more justices of the inferior court
shall declare such appointment vacant, and order another election,
by giving twenty days notice in writing at three or more public
places in the county. Act. 1811, p. 167.
Receivers, in all cases of default, shall assess a double tax on the
property of the defaulter, and shall be governed as to his proper-
ty by such information as he may be able to obtain from the neigh-
bours of such defaulters, or by the return on the digest in the
clerk's office, made the preceding year, and no person after being
double taxed, shall be allowed to exonerate himself from the pay-
ment of said tax, by making a return of his property to the clerk
of either court or any other person, and the receiver previous to
finishing his digest, shall annex thereto the names of the default-
ers, and the amount of tax assessed in manner aforesaid, due by
each, and he shall be entitled to seven and a half per cent, on the
amount of tax so assessed. Act. pf 1812,-106, and Act. of 1813,
p. 10.
TAXES.
III. Duty of Collectors.
Collectors are responsible to the executive department, and
amenable to such rules in conducting die duties of their respec-
tive offices as the executive may think necessary and proper, and
before they enter upon the duties of their office, must give the fol-
lowing bonds and sufficient security. Clay. Dig. p. 230, 1.
Table of Counties and amount of Collector's Bond for each.
Counties.
Dolls.
Counties.
Dolls.
Camden - - -
8,000
Warren - -
- - 8,000
Glyn - - -
- 4,000
Hancock - -
- - 8,000
MTntosh - - -
- 10,000"
Columbia - -
- - 10,000
Liberty - - -
- 10,000
Lincoln - - •
- - 6,000
Bryan - - - -
6,000
Clark - - -
Effingham - -
- 4,000
Baldwin - - •
- - 5,000
Richmond - -
- 15,000
Greene - - ■
- - 8,000
Bullock - - -
- 4,000
Wilkes - - ■
■ - 15,000
Tatnall - - -
- 4,000
Oglethorpe - *
- - 15,000
Wilkinson - -
4,000
Elbert - - - -
• - 10,000
Scriven - - -
- 4,000
Franklin - - -
8,000
Burke - - - -
Jackson - - -
Montgomery - -
- 4,000
Jefferson - * -
- 6,000
Washington - -
8,000
Wayne - - -
1,000
Upon giving bond they are to take an oath, for which—See
Oaths.
They are bound, in ten clays after they are notified of the arrival
of their commission, to take the oath required by law, and upon
failure to do so, three or more justices of the inferior court shall
declare such appointment vacant, and order another election, by
giving twenty days notice in writing, at three or more public places
in the county. Act. 1811, p. 167.
Collectors shall attend in each district of the county to receive
the taxes, and shall previously give at least ten days notice there-
of, and shall attend at least two days in each district, and not with-
in ten days of each other, and if he shall execute his office with-
364 TAXES.
out the legal qualifications, he shall forfeit double the tax he re-
ceives. Clay. Dig. 231.
The governor is to take the bond and security of the collectors,
and to that end shall transmit a dedimus to the justices of the in-
ferior court, or any two of them, who are to take two or more se-
curities, to be approved by them, and the bond is to be sent to the
executive department. Clay. Dig. 231.
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 to make titles to the persons pur-
chasing the same, and to pay the money (lawful charges deduct-
ed) 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 requir-
ed 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, specially
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 reco-
vered 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. Ib. 233.
If any person shall fail to pay their taxes, the collector shall
proceed against such defaulter by distress and sale (after due no-
tice given of such sale, which in case shall be less than twenty
days advertisement in one of the public gazettes of the state, and
stating the amount of assessment levied, or tax due by such per-
son) 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 be valid,
unless two months notice thereof be given by advertisement, in
one of the gazettes of the state, which shall be regularly until
the day of sale, and in all cases to make titles to the purchasers of
the property sold as aforesaid.
Collectors shall, at 'all sales of land, first offer such parts there-
of as may be reasonably expected to produce the tax due by the
TAXES.
536
owner, and if he shall not have a bid, he may then offer a larger
quantity, until he can produce bids to the amount of the taxes.
And no sales of land, of more than one tract or grant, sold as the
property of one person, or one company or society of persons,
where such tract first sold, shall produce the taxes due, shall be
valid. Clay. Dig. 234.
Collectors shall lay before the grand juries a list of insolvents in
their respective counties, upon oath, who shall allow or disallow
the same. Ib.
Taxes are preferred to all other securities and incumbrances,
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 indi-
vidual 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, al-
though the day of payment has not arrived, unless the person shall
give security, to be approved by him, for the payment thereof.
Clay. Dig. 235.
Where the collector finds no property, of the person in arrears,
to satisfy the tax due, he is empowered and required to sell pro-
perty found in any other county, to the amount of the tax, with-
out further notice than twenty days publication in one of the ga-
zettes of the state. Ib. 236.
Collectors demanding more tax than by law is imposed, shall
forfeit to the party aggrieved, four-fold on the sum received, re-
coverable before any court having jurisdiction thereof. Ib. 237.
The collectors shall pay into the treasury the amount with which
they stand charged in the comptroller general's office, after de-
ducting theirs and the receiver's commissions, and the amount of
their insolvent lists, and shall close their accounts on or before the
first day of December. And if any collector shall fail to close
his account by the time above specified, it shall then be the duty
of the treasurer and comptroller general, immediately to issue ex-
ecution against him and his securities for the balance, which shall
appear by the comptroller general's books to be then due, which
balance shall bear an interest of eight per cent, per annum, and the
execution thus issued shall direct said interest to be collected ac-
cordingly. But in counties where receivers and collectors are
notn-egularly appointed, the treasurer and comptroller shall, pre-
366
TAXES.
vious to charging such collectors with interest, ascertain from the
dates of their appointments, whether they have had the same
length of time to collect the taxes as is allowed collectors regularly
appointed. Act. 1812, p. 107.
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. Ib. 108.
No collector shall be allowed his insolvent list after execution
shall have issued against him, unless he will come before the
comptroller general, and have the same fairly adjusted. Ib. 109,
If any tax collector shall have closed, or may hereafter close his
account at the comptroller general's office, by paying into the trea-
sury the amount due by him, without having been allowed an in-
solvent list, and shall thereafter obtain an insolvent list duly cer-
tified by the grand jury of the county for which he is collector,
and produce the same to the comptroller, to give such collector a
certificate, setting forth that he had filed in his office an insolvent
list, duly certified, and that his account as collector had been pre-
viously settled and closed, without his having been allowed the
amount of said insolvent list, which certificate being presented to
the executive, the collector shall be entitled to a warrant on the
treasurer, payable out of the contingent fund, for the amount of
his insolvent list, as expressed in the comptroller's certificate.
Acts of 1815, p. 13.
If from any cause, it shall have happened or may hereafter hap-
pen, that a collector shall pay into the treasury a greater amount
than that with which he is charged in the comptroller's office,
'and ought to have paid after allowing his proper credits, the
comptroller shall certify the same to the executive, and the col-
lector shall receive a warrant, payable out of the contingent fund
for the amount so overpaid. Ib.
In any county where there shall be a county tax levied, it shall
be the duty of the grand jury in examining the insolvent list, to
deliver to the collector, a list of the amount allowed him on ac-
count of the general tax, and also a separate list of the amount
allowed for the county tax. Ib.
In future, the treasurer shall wait with the collectors for the
amqunt of their insolvent lists claimed by them, where they shall
be prevented from having the same allowed by the grand jury for
want of the session of a superior court: Provided, the collectors^
TAXES,
367
shall pay into the treasury the full amount of money due by them,
to the state, with the above exception, lb.
Collectors shall, within thirty days after the court next after the
time prescribed by law for their settlement with the treasurer, re-
turn to the comptroller's office their insolvent lists, approved ac-
cording to law by the grand jury, or in default thereof, or payment
of the amount, execution shall issue for the same as in other cases
of executions against defaulting collectors. Ib.
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 treasurv, or execution shall issue as herein
♦
pointed out. Ib.
In all cases where there may be a county or poor tax levied by
any law, or by the justices of the inferior court of any county,
and collected by any collector, and not paid over to the proper
authority in each county, the justices of the inferior court, or a
majority of them, may issue execution against such collector and
his securities, for the amount of such county and poor tax. ActS'
of 1815, p. 18.
All the property of tax collectors and their securities, as well for
the county as state tax, shall be bound from the time of signing
such bond. Clay. Dig. p. 601.
No justice of the inferior courts within this state shall hereafter
exercise the duties of tax collector, or receiver of tax returns. Ib.
The fees of the collector are the same of the receiver's, to wit,
seven and a half per cent; and for executions seventy cents.
When the collector shall have his insolvent list credited, the
grand jury shall retain a copy thereof, and direct the collector to
issue executions for the same, and place them in the hands of some
constable of the county for collection, who shall be entitled to the
same fees as he is entitled to for other executions, and* two and
one half per cent., and the balance shall be paid by the said con-
stable to the clerk of the inferior court, whose duty it shall be to
transmit the same to the treasurer. Act. 1812, p. 109.
IV. Duty of other officers, and objects not belonging to the fore-
going heads.
If any person shall neglect to give in a return of his taxable
property, or shall be convicted of fraud in making a false return
368
TAXES.
thereof, he shall be liable to pay to the clerk of the inferior couit
of the county, a fine of ten dollars for every hundred dollars valua-
tion so neglected, one half for county purposes, and the other to
the informer, to be recovered by any court having cognizance of
the same. Clay. Dig. p. 132.
It shall be lawful for any agent to return any property to the re-
ceiver, and pay the taxes due thereon to the collector of the county
in which such agent resides. Acts of 1816, p. 46.
And such agent shall be subject to pay the taxes thereon out of
his own proper estate, notwithstanding he may renounce or dis-
claim 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, 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 su'ch, he shall be liable to pay the taxi Clay. Dig.
p. 232.
Taxes preferred to all other debts whatever, and duty of exec-
utors, &c. Ib. 335.
All deeds of gift, conveyances, mortgages, sales and assignments
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 affect the state's title to any mortgaged property. Ib.
The treasurer is required to prepare the form of a general re-
turn to be made by the receivers, and the same, when approved by
the governor, is to be transmitted to them. Ib.
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 ven-
due master, to be actually disposed of by him or them: and on
failing to comply as aforesaid, it shall and may be lawful for the
collector to proceed against him or them, in like manner as against
persons about to remove out of the county. Clay. Dig. 136.
Taxes are to be paid in specie, bank bills of the United States,
governor's, president and speaker's warrants, and bank bills of the
chartered banks of this state.
TAXES.
36$
^Tax collectors and receivers are appointed by the people in each
county, entitled to vote for members of the legislature, on the first
Monday in January, in each year.
For the duty of sheriff in the collection of the taxes, see S/tf-
riff-
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. Clay. Dig.
454.
There shall be annually levied afid collected upon all stallions
covering horses, let to mares for hire, a tax equal to the season,
or price of one mare let to said stallions. Clay. Dig. 392.
In all cases where any stallion or covering horse shall be sent into
this state, to be let to mares, by citizens or persons without the
state, the collector of the county where such stallion is let to
mares, shall levy and collect said tax, at any time after the com-
mencement of the season and before the close of the same. Ib.
It shall be the duty of all persons bringing stallions into this
state, for the purpose of covering, to make a return of such horse
to the clerk of the inferior court or receiver of tax returns: and
on failure thereof, shall be subject to the same penalty as other de-
faulters. Ib.
When an execution may be issued against any tax collector for
taxes due the state, or any county within the same, and when the
sheriff may levy the same on property claimed by any person not
a party to said execution, the same proceedings shall be had
thereon, as for the trial of the right of real or personal property
within this state. But said trials shall be by the superior courts.
Clay. Dig. 601.
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
be left to his own proper remedy, in any court of law, against the
officers. Clay. Dig. 237.
In all cases where free persops of colour, subject to taxation,
fail or refuse to pay their tax, or shall have no property on which
to levy, the collector may levy on, and hire out said free person
3 A
370
TAXES.
of colour, for such price as will produce the amount due the state
Act. 1815. 18.
There shall be annually paid to the state, a tax of thirty-one
and a quarter cents on every hundred dollars value of bank stock,
operated upon, or employed within this state, which tax shall be
assessed and collected in the manner following, viz:—
It shall be the duty of the president and directors of every bank,
incorporated by the legislature of this state, to cause the cashier
thereof to transmit to the treasurer of the state annually, a return,
sworn to by him, before some justice of the inferior court or of the
peace, in which shall be stated the amount of the capital stock ac-
tually paid in on the first day of January preceding the time of
making such return, and on or before the first day of December
in each year, cause to be paid into the treasury, free of any cost
or deduction whatever, the said sum of thirty-one and a quarter
cents on every hundred dollars of capital stock, returned in man-
ner aforesaid ; and it shall be the duty of the president and di-
rectors, managers or proprietors of every other bank, office of dis-
count and deposit, or office of discount only, now in operation, or
which may be established or go into operation, within this state,
to cause the cashier thereof to transmit annually to the treasurer
of this state, a return, sworn to by him in the manner above point-
ed out, in which shall be stated the amount of capital stock actu-
ally employed or operated upon by such bank, office of discount
and deposit, or office of discount only, on the first day of January
preceding the time of making such return, and on or before the
first day of December in each year, cause to be paid into the trea-
sury, free of any cost' or deduction whatever, the said sum ol
thirty-one and a quarter cents on every hundred dollars of capi-
tal stock returned in manner aforesaid j and on neglect or refusal
of any bank, office of discount and deposit, or office of discount
only, except the officers of the bank of the state of Georgia (a re-
turn of the capital stock of which shall be made, in manner afore-
said, by the principal cashier of said bank), to make return or to
pay the tax in the manner herein pointed out, it shall be lawful
for the treasurer of the state, and it is hereby made his duty, im-
mediately after the first day of December in each year, to issue his
execution against the President and directors, managers and pro-
prietors of any bank, office of discount and deposit, or office of
disccunt only, so neglecting or refusing to make return or
pay the tax aforesaid, which execution shall be directed to the
TAXES.
sheriff of the county in which such defaulting bank, office of dis-
count and deposit, or office of discount only, shall be ; and ^iall
be issued for an amount equal to thirty-one and a quarter cents
on every hundred dollars of the capital stock, actually subscribed
for in the bank of the state of Georgia ; and if any sheriff to whom
any execution issued by virtue of the provisions of this act, may
be directed, cannot find property whereon to levy belonging to
the bank, office of discount and deposit, or office of discount only,
against the president and directors, managers or proprietors of
which such execution may have issued, it shall be lawful for
such sheriff, and it is hereby made kis duty, to levy the same on
the individual property of all or any of the directors, managers,
or proprietors, against whom such execution may be ; and to sell
such property, or so much thereof as will satisfy such execution,
and pay all costs that may be incurred in consequence thereof.
If any sheriff to whom any execution issued as herein required,
may be directed, shall fail to collect the same by the time therein
specified, and pay the amount thereof into the treasury, or deposit
the same in such bank as the treasurer may direct, subject to the
order of said treasurer, it shall be lawful for, and it is hereby
made the duty of any judge of the superior courts of this state,
to whom the treasurer shall make written application for that pur-
pose, during the recess of the courts, to cause such measures to
be taken, to compel an immediate payment by such sheriff of the
amount of such execution, and such other proceedings to be had
thereon, as would be authorised if a rule were obtained against
such sheriff in terna time. Act. 1807. 47.
Tenant, See Rent,
Theft, See Larceny,
372
TREASON.
THREATS AND MENACES.
If any person shall knowingly send or deliver any letter or
writing, threatening to accuse another person of a crime, with in-
tent to extort money, goods, chattels, or other thing, or threaten-
ing to maim, wound, kill, or murder, or to burn his or her house
or other property, (though no money, goods, chattels, or other
valuable thing be demanded) any such person so offending, shall,
on conviction, be sentenced to undergo an imprisonment at hard
labour, or in solitifde, in the penitentiary, for any time not ex-
ceeding two years. P. C. p, 123,
TREASON.
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
treason, but no attainder of treason shall work corruption of blood
or forfeiture, except during the life of the person attainted. Con.
U. S. Ill Art. 3 Seq.
Crimes against the state and the people, shall consist in treason
in the first degree and second degree.
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 elsewhere, and thereof being legally convicted of open deed by
two or more witnesses, or other competent and credible testimony
or voluntary confession: these cases shall be adjudged treason
against the state and people, and when the overt act of treason
shall be committed without the limits of this state, the person
charged therewith may be arrested and tried in any county of
USURY.
373
this state within the limits of which he may he 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 degree shall be punished with
death.
Treason in the second degree shall consist in the knowledge
and concealment of treason, without otherwise assenting to or par-
ticipating in the same. The punishment of treason in the second
degree, shall be solitary confinement or hard labour in the peni-
tentiary, for any term not less than three years, nor longer than
seven years. P. C. p. 94.
USURY.
All bonds, contracts and assurances whatsoever, made after the
29th March, 1759, for the payment of any principal^ or money 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 pounds in the hundred, shall be utterly void,
and that all and every person or persons whomsoever, who shall
after the time aforesaid upon any contract to be made after the
said twenty-ninth day of March, take, accept, and receive by way
or means of any corrupt bargain, loan, exchange, chevisance, shift
or interest, of any wares, merchandize, or other thing or things
whatsoever j or by any deceitful way or means, or by any covin,
engine, or deceitful conveyance for the forbearing or giving day
of payment for one whole year of, and for their money or other
thing above the sum of eight pounds for the forbearing of one
hundred pounds for a year and so after that rate for a greater or
lesser sum, or for a longer or shorter term, shall forfeit and lose
for every such offence the treble value of the monies, wares, mer-
chandize, and other things so lent, bargained, exchanged, or shift-
ed, any law, usage, or custom to the contrary thereof, in any wise
{notwithstanding. M. & C. 270.
374
VAGRANTS,
UNWHOLESOME PROVISIONS.
Any butcher or other person selling the flesh of a diseased ani-,
mal, or other unwholesome provisions, shall be indicted, and on
conviction for the first offence be sentenced to pay a fine at the
discretion of the court, and for the second offence shall be fined
and imprisoned at the discretion of the court.
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 convic-
tion, shall be fined at the discretion of the court; and on convic-
tion for the second offence, such baker, brewer, distiller, mer-
chant or grocer, shall be sentenced to pay a fine and be imprisoned
at the discretion of the court. P. C. p. 128.
VAGRANTS.
Any person wandering or strolling about, able to work or other-
wise to support himself in a reputable way, or leading an idle,
immoral, profligate course of life, shall 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 j and upon his refusal or failure to give such security,
he shall be committed and indicted as a vagrant, and on conviction,
shall be imprisoned in the penitentiary at the discretion of the
court. <
If any person shall be apprehended, having upon him or her
any picklock, key, crow, bit, or other implement with intent felo-
niously to break and enter into any dwelling-house, ware-house,
store, shop, coach-house, stable, or out-house, or shall have upon
him any pistol, hanger, cutlass, bludgeon, or other offensive weap-
on, with intent feloniously to assault any person, or shall be found
in or upon any dwelling-house, ware-house, store, shop, coach-
house, stable, or out-house, with intent to steal any goods or chat-
tels; every such person shall be deemed a rogue and vagabond,
VICE AND IMMORALITY.
375
and on conviction shall be sentenced to undergo an imprisonment
in the common jail of the county, or in the penitentiary at hard
labour. P. C. p. 129.
Verdict. See Jurors and Perjury.
VICE AND IMMORALITY.
No tradesman, artificer, workman, labourer, or other person
whatsoever, shall do or exercise any worldly labour, business, .or
work of their ordinary callings upon the Lord's day or any part
thereof, (works of necessity or charity only excepted,) and that
every person being of the age of fifteen years or upwards, offend-
ing in the premises, shall for every such offence forfeit the sum
of ten shillings. And that no person or persons whatsoever, shall
publicty cry, show forth or expose to sale, any wares or merchan-
dize, fruit, herbs, goods, or chattels, whatsoever, upon the Lord's
day or any part thereof, upon pain that every person so offending,
shall forfeit the same goods so cried or showed forth, or exposed
to sale, or pay ten shillings.
No public sports or pastimes, as bear'baiting, bull baiting, foot-
ball playing, horse racing, shooting, hunting, or fishing, interludes
or common plays, or other games, exercises, sports, or pastimes
whatsoever, shall be used on the Lord's day by any person or per-
sons whatsoever; and that all and every person or persons offend-
ing in any of the premises, shall forfeit for every such offence the
sum of five shillings sterling.
No vintner, innholder, or other person keeping any public
house of entertainment, shall entertain or suffer any person or per-
sons (except strangers or lodgers) in such houses or out-houses
to abide or remain ; nor shall they suffer any person or persons
whatsoever, in their said houses or out-houses, yards, orchards,
or fields, to abide or remain drinking, or in any manner idly spend-
ing their time on the Lord's day, upon the pains and penalties of
five shillings for every person offending, payable by themselves re-
3?6 VICE AND IMMORALITY.
spectively, that shall be found so drinking or abiding in any such
public house, or dependencies thereof as aforesaid, and the like
sum of five shillings, to be paid by the keeper of such house for
every person entertained by them.
The church wardens and constables of each parish respectively,
or any one or more of them, shall once in the forenoon and once
in the afternoon, in the time of divine service, walk through the
town of Savannah, and the respective towns of this province, to
observe, suppress, and apprehend all offenders whatsoever, con-
trary to the true intent and meaning of this act; and they shall
have power and are hereby authorised and empowered, to enter
into any public-house or tippling-house to search for any such of-
fenders ; and in case they are denied entrance, shall have power
and are hereby authorised and empowered to break open, or cause
to be broke open, any of the doors of the said house and enter
therein ; and all persons whatsoever are strictly commanded and
required to be aiding and assisting to any constable or other offi-
cers in their execution of this act, under the penalty of ten shil-
lings sterling for every refusal.
Every justice of the peace within his county or parish, shall
have power and authority to convene before him any person or
persons whatsoever, who shall offend in any of the particulars be-
fore mentioned, and upon his own view or confession of the party,
or proof of any one or more witnesses upon oath, which the said
justices are by this act authorized to administer, the said justice
or justices shall give a warrant under his or their hand and seal, to
the constables or church wardens, or either of them, of the parish
or parishes where such offence shall be committed, to seize the
said goods cried, showed forth, or put to sale as aforesaid, and to
sell the same; and as to the other penalties and forfeitures, to im-
pose the fine and penalty for the same, and to levy the said forfei-
tures and penalties by way of distress and sale of goods of every
such offender, returning the overplus (if any there be) after reasona-
ble charges allowed for the distress and sales. And in case of de-
fault of such distress, or in case of insufficiency or inability of the
said offender, to pay the said forfeiture or penalties, that then the
party so offending be set publicly in the stocks*, for the space of
two hours, and all and singular the forfeitures or penalties afore-
said, shall be employed and converted to the use of the poor of the
* Punishing a person corporally by a justice of the peace, is now contrary to
the constitution.
VICE AND IMMORALITY. 377
parish where the said offences shall be committed, and to be deli-
vered into the hands of the church wardens or overseers of the
poor for that end; saving only that it shall and may be lawful to
and for any such justice or justices out of the said penalties or
forfeitures, to reward any person or persons that shall- inform of
any offence against this act, according to his or their discretion, so
as such reward exceed not the third part of the forfeitures or pen-
alties. Provided, That nothing in this act contained, shall extend
to the prohibiting of dressing of meat in families, or dressing or
selling of meat in inns, victualling houses, or other public' houses,
for such as cannot be otherwise provided; nor to the buying or
selling of milk and fish before nine of the clock in the morning,
and milk after four of the clock in the afternoon. Provided also,
That no person or persons shall be impeached or molested for any
offence before mentioned in this act, unless he or they be prosecu-
ted for the same within ten days after the offence committed.
No person or persons, upon the Lord's day, shall serve or exe-
cute, or cause to be served or executed, any writ, process, war-
rant, order, judgment or decree, except in cases of treason, felo-
ny, or breach of the peace; but that the service of every such
writ, process, warrant, order, judgment or decree, shall be void
to all intents and purposes whatsoever. And the person or per-
sons so serving or executing the same, shall be liable to the suit
of the party grieved, and to answer damages to him for the doing
thereof, as if he or they had done the same, without any writ,
process, warrant, order, judgment, or decree, at all. And in case
any person or persons shall be imprisoned or detained in custody
by any writ, process, warrant, order, judgment or decree, so serv-
ed or executed upon the Lord's day, upon motion or petition made
to the chief justice, or any one of the assistant justices for the time
being, it shall be lawful for the chief justice, or assistant justice
or justices, and he or they are hereby authorised and required
immediately, to order such person or persons to be discharged
out of prison and custody, and to be clear, not only from such
writ, process, warrant, order, judgment, or decree, so served, on
the Lord's day, but also from all and every other writs, process,
warrant, order, judgment or decree, served or executed upon any
person during the time of the said person's being imprisoned or
detained upon the account of any such writ, process, warrant, or-
der,'judgment, or-decree, so served or executed on the Lord's
day, and such person shall be allowed by the said chief justice or
3 B
378 VICE AND IMMORALITY
assistant justices, such reasonable time, as he or they shall think
fitting, to return to his home or habitation, free from any arrest 01
hindrance whatsoever in civil matters.
If any action, suit or information, shall be commenced against
any person or persons for what he or they shall do in pursu-tnre
or execution of this act, such person or persons so sued, ma)
plead the general issue, (not guilty,) and upon issue joined, give
this act and the special matter in evidence. And if the plaintiff or
prosecutor shall become non-suit or suffer discontinuance, or if a
verdict pass against him, the defendant or defendants shall reco-
ver his or their treble costs, for which he or they shall have the
like remedy as in any case where costs by law are given to the de-
fendant. M. & C. 410.
If any public officer shall take a profane oath, he shall forfeit
the sum of five shillings for every such offence. And any other
person or persons whatsoever, not being a public officer, for such
offence shall forfeit two shillings and six pence. Ib. 256.
If any person-shall commit incestuous fornication or adultery,
or intermarry within the degrees of consanguinity or affinity as es-
tablished by law, he or she shall, on conviction, be sentenced to
undergo an imprisonment in the penitentiary, for a period of time
not exceeding two years.
Any man and woman who shall live together in an open state
of adultery, fornication, or adultery and fornication, which will
be sufficiently established by any circumstances which raise the
presumption of cohabitation and unlawful intimacy, or who shall
otherwise commit adultery,fornication, or adultery and fornication,
shall be severally indicted, and on conviction, such man and wto-
man shall be severally sentenced to pay a fine not exceeding five
hundred dollars, and on conviction a second time, a fine of one
thousand dollars, and for every repetition of the offence, a fine in
the same proportion; and moreover may be imprisoned in the
common jail; but it shall at any time be in the power of the par-
ties to prevent or suspend the prosecution by marriage, if such
marriage can be legally solemnized.
If any person shall be guilty of open lewdness, or any notorious
act of public indecency tending to debauch the morals, or keeping
open tippling houses on the Sabbath day, or on the Sabbath night,
he or she shall be indicted, atid on conviction, shall be fined and
imprisoned at the discretion ©f the court.
WARRANT.
379
If any person shall keep and maintain a common ill governed
and disorderly house, to the encouragement of idleness, gaming,
drinking or other misbehaviour, to the common disturbance of the
neighbourhood or orderly citizens, he or she shall, on conviction,
be sentenced to pay a fine or be imprisoned, at the discretion of
the court. P. C. p. 126.
All other offences against the public morals, health, police or '
economy, shall be punished by fine or imprisonment in the com-
mon jail of the county or in the penitentiary. Ib. p. 129.
See Bigamy, Cheats, and Gaming.
WARRANT.
For a warrant to search for stolen goods, see Search Warrant.
If a justice see a felony or other breach of the peace committed
in his presence, he may in his own petson apprehend the felon,
and so he may by word, command any person to apprehend him,
and such command is a good warrant without writing, but if the
same be done in his absence then he must issue his warrant in
writing. 2 H. H. 86.
Concerning which we will show,
I. For what causes it may he granterd.
II. What is to he done previous to the granting of it.
III. How far it is grantable on suspicion.
IV. The form of it.
I. For xvhat causes it may be granted.
There seems to be no doubt but that a warrant may be lawfully
granted by any justice for treason, felony or any other offence
against the peace, also it seems clear that wherever a statute gives
to any one justice a jurisdiction over any offence, or a power to
require any person to do a certain thing ordained by such statute,
it impliedly gives a power to every such justice to make' out a
warrant to bring before him any person accused of such offence,
380 WARRANT.
or compellable to do the thing ordained by such statute, lor it
cannot but be intended that a statute giving a person 'jurisdiction
over an offence, doth mean also to give him the power incident to
all courts of compelling the party to come before him. 2 Haw.
84.
But in cases where the state is no party, or where no corporal
punishment is appointed, it seemeth that a summons is a more
proper process, and for default of appearance, the justice may
proceed, and so indeed oftentimes it is directed by special
statutes.
II. What is to be done previous to the granting of it.
It is convenient, though not always necessary, that the party
who demands the warrant be first examined, on oath, touching
the whole matter whereupon the warrant is demanded, and that
examination put in writing. 1 H. H. 582. 2 H. H. 111.
Or at least it is safe to bind him over to give evidence, lest
afterwards when the offeri"der shall be apprehended, or shall sur-
render himself, the party that procured the warrant be gone
Dalt. c. 169.
III. How far it is grantable on suspicion.
Lord Hale proves at large, contrary to the opinion of Lord
Coke, (4 Inst. 177) that a justice hath power to issue a warrant to
apprehend a person suspected of felony, before he is indicted, and
that though the original suspicion be not in himself, but in the
party that prays his warrant. 2 H. H. 107. 110.
For the justices are judges of the reasonableness of the suspi-
cion, and when they have examined the party accusing, touching
the reasons of his suspicion, if they find the causes of suspicion to
be reasonable, it is now become the justices suspicion as well as
theirs, 2 H. H. 80. ,
And in another place, speaking of this opinion of lord Coke, he
delivers himself seemingly with a kind of warmth not usual to
him: I think, says he, the law is not so, and the constant practice
in all cases hath obtained against it j and it would be pernicious to
the state if it should be as lord Coke delivers1 it; for malefactors
would escape unexamined and undiscovered, for a man may
WARRANT.
381
have a probable and strong presumption of the guilt of a person
wlfom yet he cannot positively swear to be guilty. 1 H. H. 579.
Mr. Hawkins likewise seems to be of the same opinion against
lord Coke, but delivereth himself with his wonted caution and-
candour ; it seems probable, he says, that the practice of justices
of the peace in relation to this matter is now become a law, and
that a justice may justify the granting of a warrant for the arrest
of any person, upon strong grounds of suspicion for a felony or
other misdemeanor, before any indictment hath been found against
him: yet insomuch as justices claim this power, rather by con-
nivance than any express warrant of law, and since the undue
execution of it may prove so highly prejudicial to the reputa-
tion as well as the liberty of the party, a justice cannot well
be too tender in his proceedings of-this kind, and seems to be pun-
ishable, not only at the suit of the state, but also of the party
grieved, if he grant any such warrant groundlessly and malicious-
ly, without such a probable cause as might induce a candid and
impartial man to suspect the party to be guilty. 2 Haw. 85.
But a general warrant, upon a complaint of a robbery, to ap-
prehend all persons suspected and to bring them before a justice,
hath been ruled void, and false imprisonment lies against him
that issues such warrant. 1 H. H. 580. 2 H. H. 112.
IV. The form of it.
Mr. Dalton says, the warrant is the better if it bear date of the
place where it is made. Dalt. c. 169.
And lord Hale says, the place, though it must be alleged in
pleading, need not be expressed in the warrant. 2 H.H. 111.
And Mr. Hawkins sayg, it is safe, but perhaps not necessary,
in the body of the warrant to shew the place where it was made ;
yet it seems necessary to set forth the county in the margin at
least, if it be not set forth in the body. 2 Haw. 85.
It may be directed to the sheriff, bailiff, constable, or to any
indifferent person by name who is ho officer ; for the justice may
authorise any one to be his officer whom he pleases to make such,
yet it is most advisable to direct it to the constable of the precinct
wherein it is to be executed, for that no other constable, and a
fortiori no private person is compellable to seYve it. 2 Haw. 85.
Dalt.c. 169. 2 H.H. 110
WARRANT.
But in the case of an act, if the act directed that a justice shall
grant a warrant and doth not say to whom it shall be directed,^b>
consequence of law it must be directed to the constable ; and it
cannot be directed to the sheriff unless such power is given in the
act. L. Raym. 1192. 2 Salk. 381.
The warrant may be styled in divers manners; as, 1st. In the
name of the state, and yet the teste must be under the name of the
justice that grants it; or, 2d. It may be styled or made only in
the name of the justice ; or, 3dly. It may be made without any
style, and only under the teste of the justice, or only subscribed
by him.
Regularly the warrant, especially if it be for the peace or good
•behaviour or the like, where sureties are to be found or required,
ought to contain the special cause and matter whereupon it is
granted, to the intent that the party upon whom it is to be served
may provide his sureties ready,' and take them with him to the
justice to be bound for him: but if the warrant be for treason,
murder or felony, or other capital offence, or for great conspira-
cies, rebellious assemblies, or the like, it hath been said that it
needeth not contain any special cause, but the warrant of the jus-
tice may be to bring the party before him, to make answer to such
things or matters generally as shall be objected against him on the
state's behalf. Dalt. c. 169. 2 Haw. 85. 2 H. H. 111.
Every warrant made by a justice of the peace, ought to compre-
hend the special matter upon which it proceedeth ; and as for the
form, that is commonly psed to answer to such things as shall be
objected, and suchlike ; they were not fetched out of the old learn-
ed precedents, but lately brought in by such as either knew not
or cared not what they writ. Lamb. 87.
The warrant ought regularly to mention the name of the party
to be attached, and must not be left in general, or with blanks to
be filled up by the party afterwards. 2 H. 114. Dalt. c. 169.
The warrant may issue to bring the party before the justice
who granted the warrant specially, and then the officer is bound to
bring him before the same justice ; but if the warrant be to bring
him before any justice, then il is in the election of the officer to
bring him before what justice of the county he thinks fit, and not
in the election of the prisoner. 1 H. H. 582. 2 H. H. 112.
It ought to set forth the year and day wherein it is made, that
in an action brought upon an arrest by virtue of it, it may appeal
WEIGHTS AND MEASURES.
383
to have been prior to such arrest; and also in case where a statute
directeth the prosecution to be within such a time, that it may ap-
pear that the prosecution is commenced within such time limited ~r
likewise where a penalty is given to the poor of the parish where
the offence shall be committed, or ^he like, it ought to specify the
place where the offence was committed. 2 Haw. 85.
Finally it ought to be under the hand and seal of the justice
who makes it out. 2 Haw. 85.
The execution of a warrant belongs to the title Arrest.
WEIGHTS AND MEASURES,
The standard of weights and measures established by the cor-
porations of the cities of Savannah and Augusta, and now in
use within the said cities, shall be and the same are hereby de-
clared to be the fixed standard of weights and measures within this
state j and all persons buying and selling, shall buy and sell by that
standard, until the congress of the United States shall have made
provision on that subject. ,
It shall be the duty of the justices of the inferior courts, or a
majority of them, in their respective counties, by their clerks or
some other person specially authorised by them for that purpose,
to obtain from the said corporation, or one of them, to be paid out
of the county funds, the standard of weights and measures as fixed
by them, within six months from the passing of this act. And that
the said justices, or a majority of them, shall as soon as they obtain
the standard of such weights and measures, give thirty days no-
tice thereof, at the court-house, and three other public places in
the county. And if any person or persons whosoever, shall sell
or attempt to sell, any article or thing by any other or less weight
or measure than that so established, he, she or they so offending,
shall forfeit and pay three times the value of the articles sold or
attempted to be sold, to be recovered before any justice of the
peace, if it should not amount to more than thirty dollars, and if
above that sum, before any judge of the superior court or the jus-
tices of the inferior court, by action of debt j one half whereof
shall be for the use of the informer or person bringing the action,
384
WEIGHTS AND MEASURES.
and the other for the use of the county in which such act or of-
fence may happen.
It shall be the duty of the justices of the inferior court, or a
majority of them, of the respective counties of this state, to pro-
cure a marking instrument, seal, or stamp, for the purpose of
marking, sealing, or stamping all weights and measures within
their several counties, which marking instrument, seal, or stamp,
shall remain in the clerk's office of the inferior court, by him to
be affixed to any weight or measure, which he may find to corres-
pond with, or not less than the standard established by said cor-
porations of Savannah and Augusta.
The said clerks of the inferior courts shall receive six and one
fourth cents for every weight or measure by them so marked, seal-
ed or stamped, to be paid by the person obtaining the same. Clay.
Dig. 134.
If any person shall sell by false weights or measures, he or she
shall be deemed a common .cheat, and on conviction shall be sen-
tenced to pay a line, and be imprisoned at the discretion of the
court. P. C. p. 131.
JVidows. See Executors and Administrators.
Wills. See Executors and Administrators.
WITNESSES.
385
WITNESSES.
All witnesses going to, attending on, and returning from any of
the said courts,, shall be free from arrest or any civil process. M.
& C. 294.
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 the said courts respectively,
on application, to issue writs of subpoena directed to the persons
whose attendance shall be required, where such persons re-
side 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, and shall be served on such witnesses,
at least five days before the court to which it shall be returnable ;
and which writ shall be served by a sheriff, constable, or some
private person, and the return of a sheriff or constable of such
service, or the affidavit of any private person, shall be sufficient
evidence that such subpoena was duly executed.
Where it shall appear in manner aforesaid, that 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 sufficient excuse
for such non-attendance, which shall be judged of by the court;
but shall nevertheless be subject to the action of the person at
whose suit such witness shall have been summoned, for any dam-
age which he, she, or they may have sustained, by reason of such
non-attendance. Ib. 298.
When a subpoena shall be served on any witness in conformity
to this act, it sh^ll be the duty of such person so summoned, 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. k
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 ex-
hibit his account for attendance, against the person or persons at
whose suit he or they may have been summoned j and the judge,
jr presiding justice, shall examine and certify the same under his
3 C
S86
WITNESSES.
hand, which shall be countersigned by the clerk; whereupon such
account so certified, 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 cost of two
witnesses to any material point in any cause, which shall be spe-
cially certified by the court trying the same j nor shall any party
be allowed to tax costs for different witnesses to different material
points, where the same witnesses shall be sufficient in the opinion
of the court to prove such material points. Ib. p. 299. See Ev
dence and Interrogatories.
Woods. See Malicious Mischief.
APPENDIX.
IT is proper to observe, that in all cases, where an application id
made to a magistrate for a warrant, the party applying should make
oath to the charge which he wishes to prefer, and that oath should be
reduced to writing in the form of a common affidavit, and would be
best in all cases to precede the warrant, that the accused may be ac-
quainted with not only the prosecutor, but see distinctly the nature of
the charge against him ; it should be in the following form, to wit*
Georgia, "1 Before me Robin Goodfellow a justice of the peace
Clarke County. J for said county, personally came John Doe, who
being duly sworn, deposethand saith, that*, Richard Roe of said county,
did on the tenth day of June last past, at Watkinsville, in the county
aforesaid, [here insert whatever offence has been committed plainly
and substantially.]
JOHN DOE.
Sworn to and subscribed before
me, this 4th of July, 1818.
ROBIN GOODFELLOW, J. P.
FOBMS.
|C7=» Should the form sought for, be not found in the appendix, the
reader is desired to look for it under the proper head in the body of the
work ; for interspersed through the work are sundry forms particular-
ly under the heads of Affrays, Assault is? Battery, Attachment, Bail,
Bastardy, Dams, Executors and Administrators, 8jc.
* If the party applying for the warrant has not certain proof to support his
charge, but has such circumstances as will induce a reasonable suspicion} he
may state in his oath, " he has just reasons to believe that Richard Roe, iSfc."
APPENDIX
BEHAVIOUR.
Warrant for the Good Behaviour.
State of Georgia,") To the Sheriff of the said county, and to all lawfuj
Clarke County. J officers.
Forasmuch as I, Timothy Goodfellow, one of the justices of the
peace in and for the said county, am given to understand by the im-
formation, testimony and complaint of many credible persons on oath,
that Peter Badfellowy of the county aforesaid, and Charles Fearnobodyy
of said county aforesaid, are not of good name and fame, nor of honest
conversation, but evil doers, rioters, barrators, and disturbers of the
peace of this state, so that murders, homicide, strife, and other griev-
ances and damages against the citizens of this state, concerning their
bodies, are likely to arise thereby. These are therefore to command
you and every of you, that you do apprehend the aforesaid Peter Bad-
fellow and Charles Fearnobodyy and have t\iem before me or some
other justice of the peace for the said county, as soon as they can be
taken, (or thus, before the superior court to be next holden for the
said county,) to find before me (or the said court) sufficient sureties
for their good behaviour towards this state and all the citizens thereof.
And this you shall in no wise omit, on the peril that shall ensue there-
on ; and have you before me (or the said court) this precept.
Given under my hand and seal at Watkinsville} in the county afore-
said, the twenty-second day of January, in the year of our Lord, 1818.
•
TIMOTHY GOODFELLOW, J. P. L. S.
Form of the oath for one that craves surety of the fieace.
Georgia , 1 You shall swear that you are in fear of death or of
Clarke County. J some bodily hurt to be done or to be procured to be
done to you by Charles Troublesome, of the county aforesaid, (or that
he will burn your house,) and that you do not require surety of the
peace against him out of malice or for mere vexation, but for the
cause aforesaid. So help you God.
Warrant for the peace or Good Behaviour.
Georgia, |Te the Sheriff of the said county and the constables
Clarke County. J thereof, and to all other lawful officers in and for the
said county. Forasmuch as Thomas Goodman, of the county afore-
said, hath personally come before me Tijnothy Goodfellow, one of the
APPENDIX.
389
justices of the peace in and for the said county, and hath taken a cor-
poral oath, that he the said Thomas Goodman is afraid that Charles
Troublesome, of the said county, will beat him, (or wound, maim, kill,)
or do him some bodily hurt, and hath therefore prayed surety of the
peace against him the said Charles Troublesome (or if for the good
behaviour, that Charles Troublesome of the said county hath threatened
to do some bodily hurt to him the said Thomas Goodman, or to burn
the house of him the said Thomas Goodman, and hath therefore pray-
ed surety of the good behaviour against him the said Charles Trouble-
some). These are therefore to command you, jointly and severally,
that immediately upon the receipt thereof, you bring the said Charles
Troublesome before me, to find surety as well for his personal appear-
ance at the next superior court to be held for the said county, as also
for his keeping the peace (or for his being of the good behaviour), in
the mean time towards the state and all the citizens thereof, and
chiefly towards the said Thomas Goodman.
Given under my hand and seal at Watkinsville in the said county,
the twenty-first day of January, in the year of our Lord, 1818.
PETER CAREFUL, J. P. L. S.
Recognizance.
Georgia, "1 Know all men by these presents, That we John Doe
Clarke County. J and Richard Roe are held and firmly bound, unto his
excellency the governor of said state for the time being and his succes-
sors in office, in the just and full 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 of June, 1818.
The condition of this recognizance is such, that if the above bound
John Doe shall personally appear at the superior court to be held for
the said county on the third Monday of March next, to do and receive
what shall then and there be enjoined him by the court; and in the
mean time shall keep the peace (or be of good behaviour) towards
this state and all the citizens thereof, and especially towards Thomas
Goodman of the said county, then the said recognizance shall be void,
or otherwise remain in full force.
Acknowledged before me, JOHN DOE, X. S.
CHARLES GOODFELLOW, J. P. RICH. ROE, X. S,
390
APPENDIX.
Mittimus.
Georgia, "J To John Trueman, one of the constables of the said
Clarke County. J county, and to the keeper of the common jail of and
for the said county. Whereas John Doe of the said county is now
brought before me Charles Goodfellow, one of the justices of the peace
in and for the said county, requiring him to find sufficient sureties to
be bound with him in a recognizance for his personal appearance at
the next superior court to be holden 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 to-
wards Thomas Goodman of the said county. And whereas, he the said
John Doe 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 John Doe 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 John Doe 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 Watkinsville, in the said county,
the twenty-first day of March, in the year of our Lord, 1818.
CHARLES GOODFELLOW, J. P. L. S.
If afterwards, or whilst the warrant is out against him, he finds sure-
ties before a justice of the peace, then the justice issues a supersedeas
thus:
Supersedeas.
Georgia, ") Walter Peace, Esq. one of the justices of the peace in
Clarke County. J and for the said county, to the sheriff, constables and
other the ministers and citizens of the said state.
Forasmuch as John Doe of the said county hath personally been
before me at Watkinsville in the said county, and hath found sufficient
surety, that is to say, Philip Roe of the said county, and Jimmy Jumfis
of the said county, eaqh of whom hath undertaken for the said John
Doe under the pain of Jive hundred dollars, and he the said John Doe
hath undertaken for himself under the pain of two hundred dollarst
that he, the said John Doe, shall personally appear 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) to-
wards the said state and all the citizens thereof, and especially towards
Thomas Goodman of the said county. These are therefore to com-
APPENDIX.
391
mand 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 John Doe, and if you have for the said occasion and
none other, taken and imprisoned him the said John Doe, that then him
you deliver or cause to be delivered and set at liberty without further
delay.
Given at Watkinsville in the said county, under my hand and seal,
the thirtieth day of January, in the year of our Lord, 1818.
WATLER PEACE, J. P. L. S.
BURGLARY.
Georgia, "J To the sheriff of the county, to the said constables
Clarke County. J of the said county, and to all other lawful officers.
Forasmuch as Caleb Broadside of the county of Jackson, hath this
day made oath before me Benjamin Takecare, one of the justices of the
peace in and for the said county, that yesterday, in the night, the
dwelling house of him the said Caleb Broadside, at Jackson aforesaid in
the county aforesaid, was felemously and burglariously broken open
and robbed of the value offifty dollars, of the goods and chattels of him
the said Caleb Broadside, feloniously and burglariously stolen and car-
ried away from thence; and that he hath just cause to suspect, that
David Eager late of Watkinsville in the county of Clarke, the said
felony and burglary did commit. These are therefore to command
you, that immediately upon sight hereof, you do apprehend the said
David Eager, and bring him before me or some other justice of the
peace to answer the premises, apd to be further dealt with according
to law; herein fail not.
Given under my hand and seal the tenth day of May, in the year of
our Lord, 1818.
For Bond, see preceding form under title Behaviour.
For the Mittimus, see Commitment.
BENJAMIN TAKECARE, J. P. L. S.
BURNING, {Warrantfor,)
Georgia, 1 To the sheriff of the said county, and to the consta-
Clarke County. J bles thereof, and to all lawful officers within the same.
Whereas Philip, Pay to ell of Bear Creek of the said county hath this
day appeared before me James Somebody, one of the justices of the
peace in and for the said county, and made oath, that James Nobody,late
392
APPENDIX.
of Jefferson in the county of Jackson, did on the tenth day of June, in the
year of our Lord 1818, maliciously and feloniously set fire to the
dwelling house (barn, or out house as the case may be) of him the said
Philifi Paynvell, with intent to burn and destroy the same, and did con-
sume the same (or consume the same in part) thereby. These are
therefore to command you to apprehend the said James Nobody, and
bring him before me or some other justice of the peace for the said
county to answer the premises, and to be otherwise dealt with accord-
ing to law.
Given under my hand and seal, the tenth day of June in the year of
Lord, 1818.
JAMES SOMEBODY, J. P. L. S.
For the form of the Mittimus, see Commitment.
For form of Bond, see form under Behaviour.
CHEATS,' (Warrant.)
Georgia, "1 To Thomas Careful, constable, and to all lawful ofli-
Clarke County. J cers within the said county.
Whereas, complaint hath been made before me James Trueman
one of the justices of the peace in and for the said county, on the oath
of James Jamieson, that on the tenth day of June, in the year 1818, one
Charles Smyth of Putnam, by a false privy token or counterfeit letter,
or by (as the case may be) falsely and deceitfully obtain and get into
his hands and possession (here mention what) from Thomas Goodman
of Watkinsville. These are therefore to command you forthwith to
bring the said Charles Smyth before me or some other justice of the
peace for the said county, to answer the said complaint, and further to
be dealt with according to law.
Given under my hand and seal, the tenth day of June, in the year of
our Lord, 1818.
JAMES TRUEMAN, J. P. L. S.
Commitment.
Georgia, 1 Thomas Goodman one of the justices of the peace for
Clarke County. J the said county, to the keeper of the common jail of
the county aforesaid.
Whereas, Benjamin Paywell, late of the county aforesaid, has been
arrested for a suspicion of a felony committed by him the said Benja-
min Payivell, in stealing a black mare of the value of forty dollars, the
APPENDIX.
393
I
property of James Goodman, of Clarke, in the said county, on the tenth
day of June last past (or-——, here describe the species of crime or
ft-louy he has committed) : whereupon the said Benjamin Paywell hath
been duly examined by and before me concerning the same, and the
examination before me taken, doth induce a strong presumption that
he is guilty thereof. These are therefore to command you to receive
the said Benjamin PayweUipto your custody in the said jail, there to
remain till he be delivered from your custoYly by the course of law.
Given under my hand and seal, the tenth day of June, in the year of
our Lord, 1818. /
THOMAS GOODMAN, J. P. L. S.
If he is committed for want of Bail, thus :
And upon such examination before me had, he the said Benjamin
Paywell hath been by me required to give security in the sum of five
hundred dollars, and two sureties, each, in the sum of two hundred and
fifty dollars, for his personal appearance before the next superior
court of law to be held for the county of Clarke, at the court house at
IVatkinsville, on the third Monday of March, to answer to the said
charge: and the said Benjamin Paywell, having not given such securi-
ty as aforesaid, but failing so to do, these are therefore, &c. till h&
do give such security as aforesaid, or be otherwise delivered from
your custody by due course of law. Given, he.
CORONER.
Precept to summon a Jury.
Georgia, ") To James Careful, one of the constables of and in the
Qlarke County. J Si*id county.
These are to require you,immediately upon sight hereof, to summon
twenty four good and lawful men of the said county, to be and appear
before me Thomas Stiles, the coroner of the said county, at Watkins-
vide, in the said county, on the tenth day of June ensuing, then and
there to enquire 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 David Pleasant. And be you then there, to certify what
3 D
394
APPENDIX.
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 June, in the year of
our Lord 1818.
THOMAS STILES, {L. S.)
Inquisition of Murder.
Georgia, ") An inquisition indented, taken at Watkinsville, in
Clarke County. J the said county of Clarke, the nin*h day of June,
in the year of our Lord one thousand eight hundred and eighteen,
before Thomas Stiles, the coroner, of and in the said county, upon
the view of the body of David Pleasant, then and there lying
dead, upon the oaths of Abner Bush, Charles Bush, &c., good
and lawful men of the county aforesaid} who, being sworn, and
charged to inquire on the part of the state aforesaid, when, where,
how, and after what manner the said David Pleasant came to his
death, do say upon their oath, that one Adam Malice, late of Clarke
aforesaid, not having the fear of God before his eyes, but being moved
and seduced by the instigation of the devil, on the ninth clay oiJune,
in the year of our Lord one thousand eight hundred and eighteen afore-
said, with force and arms, at Watkinsville, in the county aforesaid, on
and upon the aforesaid David Pleasant, then and there being in the
peace of God and of the said state, feloniously, voluntarily, and of his
malice aforethought, made an assault; and that the*said Adam Malice,
then and there, with a certain sword made of iron and steel, of the va-
lue of onb dollar, which he the said Adam Malice, then and there, held
in his right hand, the aforesaid David Pleasant, in and upon the left
fiart of the belly of the said David Pleasant, a little above the navel of
the said David Pleasant, then and there, violently, feloniously, volun-
tarily, and of his malice aforethought, struck and pierced, and gave to
the. said David Pleasant, then and there, with the sword aforesaid, in
and upon the aforesaid left fiart of the belly of the said David Pleasant,
a little above the navel of the said David Pleasant, one mortal wound,
of the breadth of half an inch, and of the depth of three inches, of which
said mortal wound, the aforesaid David Pleasant, then and there, in-
stantly died ; and so the said Adam Malice, then and there, feloniously
killed and murdered the said David Pleasant; against the peace and
dignity of the state.
And the said jurors further say upon their oath aforesaid, that Adam.
Adams, of Clarke, and Bush Adams, of Jackson, were feloniously pre-
sent with drawn swords at the time of the felony and murder afore-
said, in form aforesaid committed, that is to say, on the said ninth day
of June, in the year one thousand eight hundred and eighteen aforesaid,
APPENDIX.
395
at Watkinsville aforesaid, in the county aforesaid, then and there, com-
forting, abetting, and aiding the said Adam Malice, to do and commit
the felony and murder aforesaid, in manner aforesaid; against the
peace and dignity of the state.
In witness whereof, as well the aforesaid coroner, as the jurors
aforesaid, have to this inquisition put their seals, on the day and year
aforesaid, and at the place aforesaid.
ABNER BUSH, ^
CHARLES BUSH, V Jurors.
PETER BUSH, Uc.)
THOMAS STILES, Coroner.
An inquisition where one hangs himself.
[Begin as above, with the first eight or ten lines, and continue as
follows:] not having the fear of God before his eyes, but being se-
duced and moved by the instigation of the devil, at Clarke aforesaid,
in a certain wood, at Clarke aforesaid, standing smd being, the said
Adam Davidson being then and there alone, with a certain hemfien
cord, of the value of ten cents, which he, then find 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, him-
self, then and there, with the cord aforesaid, voluntarily and feloni-
ously, and of his malice aforethought, hanged and suffocated ; and so
the jurors aforesaid, upon their oath aforesaid, say, that the said Adam
Davidson, then and there, in manner and form aforesaid, as a felon of
himself, feloniously, voluntarily, and of his malice aforethought, him-
self killed, strangled, and murdered; against the peace and dignity of
the state.
An inquisition where one drowns himself.
[Begin as above, but with variations to suit the particular case.] at
Clarke aforesaid, in the county aforesaid, then and there, being alone in
a common river, there called Oconee, himself voluntarily and feloni-
ously drowned; and so the jurors aforesaid, upon their oath aforesaid,
say, that the aforesaid William Dasht in manner and form aforesaid,
then and there, himself voluntarily and feloniously, as a felon of him-
self, killed and murdered; against the peace and dignity of the state.
An inquisition where one dies a natural death.
[Begin and vary it to suit the particular case.] that the said Adam
Sjiears, on the ninth day of June} in the year aforesaid, at Watkinsville,
396
APPENDIX.
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 appeari g on
his body, and died by the visitation of God in a natural way, and no I
otherwise. In witness, &c.
An inquisition ufion one who dies in Jail.
Jurors, who say upon their oa'h, that the aforesaid John Doe, on the
day of the taking of this inquisition, being a prisoner in the jail at Wat-
kinsville, in the county aforesaid, then and there, died of the visitation
of God, and then and there, in manner and form aforesaid, came to his
death; and not otherwise. In witness, &c.
An inquisition on one non compos mentis.
-—who say upon their oath, tjjat the aforesaid Adam Denison, on
the day and year aforesaid, and at the time of his death, to wit, from
the third day of Jane, 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 Adam Denison, being a lunatic, and a person of insane mind as
aforesaid, did, on the fourth day of June, come alone to a certain river
called Oconee, in the said county, and did, then and there, cast himself
into the said river, and drowned himself in the water of said river.
And So the jurors aforesaid, upon their oath aforesaid, say, that the
aforesaid Adam Denison, from the cause aforesaid, in manner and form
aforesaid, came to his death ; and not otherwise. In witness, &c.
An inquisition on one for cutting his throat.
—by the instigation of the devil, at Wat kinsville 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 ma-
lice aforethought, made an assault; and that the aforesaid Anthony
Denison, then and there, with a certain knife, of the value of six cents,
which he the said Anthony Denison, 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 mor-
tal wound of the breadth of four inches, and the depth of one inch ; of
which said mortal wound, the said Anthony Denison, at Watkinsville
aforesaid, in the county aforesaid, languished, and languishing lived,
from the said third clay of June, in the year one thousand eight hundred
and eighteen aforesaid, to the fourth day of June ; and that the said
Anthony Denison, on tb a fourth day of June aforesaid, in the year ova
APPENDIX.
397
thousand eight hundred and eighteen aforesaid, at Watkinsville afore-
said, m the county aforesaid, of that mortal wound died. And so the
'jurors aforesaid, See,
For killing another in his own defence.
—•upon their oaths say, that An thony Kirk, late of Clarke^ at Watkins-
•ville aforesaid, in the said county, on the third day of June, in the year
one tb wttand eight hundred and eighteen, in the peace of God and the
said state, then being } Anthony Malice, late of Jefferson, in the county
of Jackson, at the hour of three in the afternoon of the same day, did
come and upon him the said Anthony Kirk, then and there, of his ma-
lice aforethought, did make an assault, and him the said Anthony Kirk
did, then and there, endeavour to beat and kill, by continuing the as-
sault aforesaid, from the house of one William Hughes, in Clarke
aforesaid, to a certain place called the Grove, in the county aforesaid;
and the said Anthony Kirk seeing, that the said Anthony Malice was so
maliciously disposed, to a certain wall in the said place called Rock-
ling, did flee, and from thence, for fear of death, could not escape;
and so the said Anthony Kirk himself, in preservation of his life,
against the said Anthony Malice, continued to defend ; and in his own
defence, him, the said Anthony Malice, upon the right part of the
breast of him the said Anthony Malice, with a certain sword, of the
price of twenty-five cents, which the said Anthony Kirk, then and there,
held in his right hand, did strike, then and there, giving to the same
Anthony Malice one mortal wound, of the breadth of one inch, and of
the depth of three inches, of which said mortal wound, the said An-
thony Malice, at Watkinsville aforesaid, in the county aforesaid, lan-
guished, and languishing lived, from the said third day oiJune, to the
fourth day of June, from thence next ensuing ; and that the said An-
thony Malice, on the said fourth day of June, in the year one thousand
eight hundred and eighteen aforesaid, at Watkinsville aforesaid, in the
said county, of that mortal wound died j and so the said Anthony Kirk
did, then and there, kill him the said Anthony Malice, in his own de-
fence.
An inquisition where the murderer is unknown.
[The same as before, only say] that a certain person unknown, See.
[and addj And the said jurors, upon their oath aforesaid, further
say, that the said person unknown, after he had committed the said fe-
lony and murder in manner aforesaid, did fly away j against the peace
and dignity of the said state, See.
398
APPENDIX.
Evidence.
Georgia, The evidence of James Lawson, of Watkinsville, in
Clarke County. J the said county, taken at Bear creek, in the said
county, on oath, before me Charles Dodd, one of the coroners, of and
in the said county, and also before the jury, then and there, sworn to
inquire how Anthony Dodge, then and there lying dead, came to his
death, who saith, that^ &c.
JAMES LAWSON.
Taken and subscribed before me theirs* day of January, 1819.
CHARLES DODD, Coroner.
Recognizance for witnesses.
See Bail and Criminals, with this condition :
The condition of this recognizance is such, that if the within bound
Anthony Bush, shall personally appear before the Superior Court, to
be holden at Watkinsville, for the county of Clarke, at the court-house
in Watkinsville, on the third Monday in March next, in the year of our
Lord one thousand eight hundred and eighteen, then and there, to give
evidence in behalf of the state, concerning the death of Anthony
Dodge, and shall not depart the said court without leave; then the
above written recognizance shall be void.
ANTHONY BUSH, (L.S.)
Taken before me Charles Dodd, one of the coroners of and for the
said county, theirs* day of June, in the year of our Lord 1818.
CHARLES DODD.
CRIMINALS.
The examination of a fierson accused of any criminal matter to which
he must not be sworn.
Georgia, "1 The examination of Adam Potters, of Watkinsville,
Clarke County. J in the county of Clarke, taken before me Charles
Goodman, one of the justices of the peace, of and in the said county,
the„/?rs* day of June, in the year of our Lord one thousand eight hun-
dred and eighteen, the said Adam Potters, being charged before me
APPENDIX.
399
by David Evergreen, of Jackson, with [here insert the charge against
him] upon his examination now taken before me, confesseth, that,
&c. or denieth, that, &*c.
ADAM POTTERS.
Taken before me the day and year above written,
CHARLES GOODMAN, J. P.
Information of a witness.
Georgia, ") The evidence of Peter Everall, of Watkinsville, in
Clarke County, j the said county, taken upon oath before me Charles
Dodge, one of the justices of the peace, of and in the said county, the
first day of June, in the year of our Lord gne thousand eight hundred
and eighteen.
The said Peter Everall, of Watkinsville, being sworn by me on the
Holy Evangelists, to speak the truth, the whole truth, and nothing
but the truth, of and concerning the accusation made before me
against Adam Potters, who stands charged by David Evergreen, of
Jackson, with [here insert the charge] saith, that, &c.
PETER EVERALL.
Taken before me the day and year above written. r
CHARLES DODGE, J. P.
For the Recognizance, see Bail.
For the Mittimus, see Commitment.
Recognizance of witnesses for the State.
Georgia, 1 Be it remembered that on the first day olJune, in
Clarke County- J the year of our Lord, one thousand eight hundred
and eighteen, George Huntsville of Watkinsville, in the said county,
came before me Charles Trueman, 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 con-
dition, that if he shall personally appear before the judge of the sup-
erior court, at the next superior court to be holden in and for the
county of Clarke, at the court house in Watkinsville, on the third
Monday in March next, in the year of our Lord, one thousand eight
hundred and eighteen, then and there, to give evidence in behalf of the
state against John Doe, late of Jackson, who, being arrested and sus-
pected of forgery, is now committed to the common jail of and for
the said county, then this recognizance to be void; otherwise of
force.
GEORGE HUNTSVILLE. L. S.
Taken before me, the day and year aforesaid,
CHARLES TRUEMAN, J. P.
400
APPENDIX*
Recognizance to Prosecute and give Evidence.
Georgia, "> Be it remembered that on the first day of June, in
Clarke County. J the year of our Lord, one thousand eight hundrtd
eighteen, George Careful, of Watkinsville, in the said county, person-
ally came before me Charles Goodman, one of the justices of the peace
of and in the said county, and acknowledged 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 the said state, to be
levied of his goods and chattels, lands and tenements, to the use of
the said state, if he the said George Careful shall fail in the condition
underwritten.
CHARLES GOODMAN, J. P. X.
The condition of the above written recognizance is such, whereas
one Adam Adams, late of Jackson, was this present day brought before
the justice within mentioned, at the instance of the above bounden
George Careful, and was by him charged with (here specify the
charge), and thereupon was committed by the. said justice to the com-
mon jail for the county of Clarke. If, therefore, the said George Care-
ful shall and do, at the next superior court to be held for the said
county, on the third Monday in March, in the year of our Lord one
thousand eight hundred and eighteen, prefer or cause to be preferred
one bill of indictment of the said felony against the said Adam Adams,
and shall then also give evidence there concerning the same, as well
to the jurors that shall then enquire of the said felony, as also, to
them that shall* pass upon the trial of the said Adam Adams ; that
then the said recognizance to be void, or else to stand in full force for,
the said state.
If the party be bailable ; then bind him as under bail, and the wit-
hess as above j except, instead of saying, " The criminal is now com-
mitted to the common jail,"—say, " is now bound in recognizance,
then and there, to appear before the said court, to answer the charge*
aforesaid."
Warrant for a Tl itness.
Georgia, *) To John Good, one of the constables of and in the said
Clarke County. J county.
Whereas oath hath been made before me Thomas Good, one of the
justices of the peace of and in the said county, by Ja?ncs Somebody, that
he the said James Somebody was lately robbed of a Gold Watch, and
APPENDIX.
401
that he hath good cause to believe, that George Hinds is a material
witness to provp by whom the said robbery was committed. These are
therefore to require you, to cause the said George Hinds forthwith to
come before me, to give such information and evidence as he knoweth
concerning the said offence; and that such further proceedings may be
had thereon, as to the law doth appertain.
Given under my hand and seal at Watkinsville, in the said county,
the third day of June, in the year of our Lord one thousand eight hun-
dred and eighteen.
THOMAS GOOD, J. P. L. S.
If the criminal be to be committed, see Mittimus under Commit-
rncnt : if to be bailed, see Recognizance under Bail.
DEEDS.
Form of a Deed..
Georgia, "1 This Indenture, made this the tenth day of June, in
Clarke County. J the year of our Lord, one thousand eight hundred and
nineteen, between Charles Smith, of the county and state aforesaid, of
the one part, and Richard Roe, of the same place, of the other part,
witnesseth, that the said Charles Smithy 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 do by
these presents grant, bargain, sell and convey unto the said Richard
Roe, his heirs and assigns, all that tract or parcel of land, situate, lying
and being in the. county aforesaid, (but in the county of Franklin at the
time of surveyjon the North fork of the Oconee river, containing two
hundred and^^ac^es more or less, being part of a nine hundred acre-
tract of land origirfally granted to Samuel Fayne ; said grant being
dated, the J^ouJtf,.-of Mayy in the year seventeen hundred and eighty •
four.
[It Is necessary barely to describe the property plainly and substan-*
tidily, that 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^mit a description by
metes and bounds/] «
To have and to hold said tract or parcel of land, unto'him the said
Richard Roet his heirs and assigns, together with all and singular the
rights, members and appurtenances thereof, to the same in any man"
ner belonging, to his and their own proper use, benefit and behoof Jiar-"
ever, in fee simple.
3 E
APPENDIX.
And the (said Chafes 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.
Ip witness whereof, the said Charles Smith hath hereunto set his
hand and seal, the day and year above written.
CHARLES SMITH. L. S
Signed, sealed, and delivered in presence of
JOHN BRYANT,
CALEB MU RPHY, J. P.
Two witnesses are enough to a deed, and if one of them is a justice
of the peace, it will be admitted to record, without any other or further
probate, but if neither should be a justice, the following is the form of
the probate, which must be inserted on the back of the deed.
Georgia, 1 Personally came before me Caleb Mur/ihrj, who, be-
Clarke County. 5 ing duly sworn, deposeth and saith, that he saw
Charles Smith sign, seal and deliver the within deed for the purposes
therein mentioned, and that he deponent subscribed the same as a wit-
ness, and sawr John Bryant do so likewise.
CALEB MURPHY
Sworn to and subscribed before me,
this twentieth of June, eighteen hundred and nineteen.
ROBERT KEEPPEACE, 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 lie*, and if it lies
on both sides of the division line between two counties, it ought to be
recorded in both of said counties.
It is a practice to join the wife with the husband, in the body of the
deed, with a view to convey her right of dower ; this practice is erro-
neous, and does not legally effect that purpose, for she may alternate's
claim and receive it, if she thinks proper. It can only be done by a
lelinquishjnent in a particular form, which is as follows:
Georgia, "> Aancy Smith, wTife of the within named Charles Sin 1,
Clarke Coupfty. $ did this day appear before me, and being privatelyi
and separate and apart from her said husband, examined by me, did
declare, that she freely, voluntarily, and without any compulsion, dread
or fear of any person w hatever, renounced, released and fur ever relin-
quished unto the said Richard Roe, his heirs and assigns, all her in-
APPENDIX.
403
'.erest and estate, and also all her right and claim of dower of, in, and
to all and singular the premises mentioned in the within deed.
In witness whereof the said Xancy Smith hath set her hand and
seal to these presents, this tenth of July3 one thousand eight hundred
and nineteen.
NANCY SMITH. L. S.
Signed sealed and delivered in presence of
ROBERT KEEPPEACE, J. P.
Form of Mortgage Deed.
Georgia, £ This Indenture made this tenth day of June, in the
Clarke County, y year of our Lord one thousand eight hundred and
nineteen, 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 delivered to the said
Richard Roe, his certain promissory note, subscribed with his hand, and
bearing even d^te 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-ffth of December next ensuing the
date hereof, for value received. Now, for and in consideration of the
sum of fve dollars, by the said Richard Roe to the said Charles
Smith in hand paid, the receipt whereof is-hereby acknowledged, as
well as loi the better securing the payment of the*aforesaid promis-
sory note, the said Charles Smith hath gr mtod, bargained and sold,
and doth by these presents grant, bargain and sell unto the said Rich-
ard Roe, his heirs and assigns, [Here insert whatever property is in-
tended to be mortgaged : if it is land, or houses and lots, describe them
fdainly as in a deed; or if it is personal property, describe it as in a
Bill of Sale."]
To have and to hold said bargained premises (or property) 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 $mith, for him-
self, his heirs, executors and administrators, the said bargained pie-
nuscs (or property) unto the said Richard Roe will warrant and for
ever defend against tlie claim of himoell ai d his heirs, and against tl e
claim of all other persons whatever.
Provided nevertheless, that if the said Charles Smithy his heirs, ex-
ecutors and administrators, shall, and do well and truly pu*/or cause
to be paid unto the said Richard Roe, his heirs and assigns, the afore-
mentioned sum of one thousand dollars on the day and ti no mentiontd
and appointed for the payment thereof, in the said promissory note
mentioned, with lawful interest for the same, acctnlii g to the tenor
of said note, then and from thenceforth, well this present indenture,
404
APPENDIX.
and the right to the property thereby conveyed, as the said pionnssoiy
note, shall cease, determine, and be void to all intents and purposes.
In testimony whereof, the said Charles Smith hath hereunto set hr
hand and seal the day and year above written.
CHARLES SMITH. (L. 5 \
Signed, sealed and delivered in presence of
JOHN BRYANT,
CALEB MURPHY, J. P.
ESCAPE (Warrant for.)
Georgia, "\Abner Bondsman, esq. one of the justices of the
Clarke County. J peace for the said county, to all sheriffs, bailiffs, and
constables within this state.
Whereas John Doe hath made oath before me, that on the third day
of June, Richard Roe was in custody in the common jail of this county,
charged in execution* at the suit of John Stiles, for the sum of one
hundred dollars, which execution issued from the Superior Court for
the county of Clarke ; and that on the said day, the said Richard Roe
escaped from the said jail, and went at large, the said sum of one hun-
dred dollars being not paid or satisfied : You are therefore hereby com-
manded, that every of you, in your respective counties, make diligent
search for the said Richard Roe, and him having found, that you seize
and arrest, and forthwith convey to the common jail of your county,
and him deliver to the sheriff thereof, to be by him therein detained
in safe and secure custody, until he shall thence be discharged by due
course of law. And in case the said Richard Roe be arrested, then,
do you the said sheriff, who shall receive him into your custody, make
known to the Superior Court of this county of Clarke, at the court
thereof, to be held next after the said arrest, how this warrant shall
have been executed. Herein fail not.
Witness my hand and seal, the third day of June, in the year of out
Lord one thousand eight hundred and eighteen,
ABNER BONDSMAN, J. P. (L. S.)
* If the person was in jail on a charge of any criminal offence and escape,
ftfate whatever offence it is, instead of the above.
APPENDIX.
405
EXECUTION.
Form of an execution against the body.
Georgia, ") To all and singular the sheriffs of said Mate) greeting;
Clarke County. J We command you, that you take the body of John
Doe (if to be found in your bailiwick) and him safely keep, $o that you
have his body before the Superior Court, to be held for the county of
Clarke, at the court-house in Watkinsville, on the third Monday in
March next, then and there, to satisfy 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-perform-
ance of certain promises by the Said John Doe before that time made ;
as for his costs and charges by Aim, in his suit, in that behalf expend-
ed; whereof the said John Doe is convicted, and liable, as to us ap-
pears 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 first
day of June, in the year of our Lord one thousand eight hundred and
eighteen.
PETER JONES, Clerk.
Fierifacias, against the property.
Georgia, "1 To all and singular the sheriffs of said state, greeting;
Clarke County. J We command you, that of the goods and chattels,
lands and tenements of John Doe (in your bailiwick) you cause to. be
made one hundred dollars, which Richard Roe, lately in the Superior
Court at Watkinsville, in the county aforesaid, recovered against John
Doe, as well for damages, by reason of the non-performance of cer-
tain 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 tjie said court at Watkinsville aforesaid, on the third
Monday of March next, to render to the said Richard Roe his da-
mages, costs and charges aforesaid. And have you then and there
this writ.
Witness, the Hon. Thomas Stiles, judge of said court, this the third
day of June^ in the year of our Lord one thousand eight hundred and
eighteen.
PETER JONES, Clerk
406
APPENDIX.
FELONY f Warrant for. J
Georgia, ") To Abner Bosivorth, constable, or to any luwfuloffi-
Clarke County. J cer of the said county.
Whereas Ben. Stiles, of Watkinsville, in the county of Clarke, hath
this day made complaint, upon oath, before me Thomas Goodman, one
of the justices of the peace for the county aforesaid, that this present
day, divers goods of him the said Ben. Stiles, to wit, one fdtce of lint n,
&c. have feloniously been stolen, taken, and carried away fiom the
house of him the said Ben. Stiles, at Watkinsvillr aforesaid, in the
county aforesaid, and that he hath just cause to suspect, and doth sus-
pect, that Charles Dodge, late of Clarke., feloniously did steal, take,
and carry away the same. These are therefore to command you, to
take the body of the said Charles Dodge, and Lring him before me, or
some other justice of the peace, of the county aforesaid, to answer the
complaint in the premises as the law directs. Herein fail not.
. Given under my hand and seal the third day of June, in the year of
our Lord one thousand eight hundred and eighteen.
THOMAS GOODMAN* J. P. (L. S.)
LAECENY.
Form of Warrant.
Gebrgia, To John Careful, one of the constables of and in
Clarke County. J said county.
Whereas Ben. Stikes, of Wafkinsville, in the county aforesaid^liath
this day made information and complaint upon oath before ine Charh s
Dodd, one of the justices of the peace for the said county, that this
present day, divers goods of him the said Ben. Siikcs, to wit, one fii-ci
Holland, &c. have feloniously been stolen, taken, and carried away
from the house of him the said Ben. Stikes, at Watkinsville, in the
county aforesaid, and that he hath just cause to suspect, and doth sus-
pect, that John Kirkly, late of Clarke, feloniously did steal, take, and
carry away the same. These are therefore to command you forth with
to apprehend him the said John Kirkly, and to bring him before me
or some other justice of the peace, of the county aforesaid, t> answer
unto the said information and complaint, and to be further dealt with
according to law. Herein fail not.
Given under my hand and seal the third day of June, in the year of
our Lord one thousand tight hundrtd and tig/neen.
CHARLES DODD, J. P.
APPENDIX.
401
MARRIAGE.
A form of Marriage which may be used, having been furnished by one
who has had much experience in the performance of that ceremony.
We are about to celebrate and solemnize a Marriage Contract be-
twixt At B. and C. D. As-such transactions tend greatly to influence
the peace and happiness of society in general, and of families and indi-
viduals in particular, I feel it my duty to enjoin upon all persons pre-
sent, that if they or any of them know any just objection to this mar-
riage, they now declare it, otherwise for ever hereafter hold their
peace.
[The magistrate or minister may then present a short prayer to
the Almighty, expressing gratitude to Him for the Institution of Mar-
riage, and imploring his blessing upon the pair about to be united in
that honourable state. After which he may address the couple about
to be married thus :]
Marriage is an institution of Divine appointment, evidently calcu-
luted to promote the present comfort and future happiness of the
human family* As each of our relations in life has a system of duties
peculiar to itself, on the punctual and proper performance of which
duties our happiness in those relations greatly depends, you will bear
with me, while in a very few words I briefly intimate to you a few of
the most important duties which you will owe to each other when
united in this relation.
In the first place, it will be your duty to love each other with a sin-
cere, pure, and ardent affection. Without this you cannot be happy,
though favoured with the caresses and esteem of all the world besides.
Every prudent method should therefore be pursued by you, to pre-
serve and cultivate that affectionate regard, which has led you to as-
sume your present station.
Another duty of great importance in the married state is, To bear
with each other's infirmities. When either party is at any time ob-
served by the other to be under the influence of irritation, the most
soothing language, or entire silence, should be then adopted; because
reason, revelation, and observation, all concur in teaching us that" a
soft answer turneth away anger, but grievous words stir up strife."
Again, Married persons should cherish each other when under
affliction. Adversity, in some sort or other, is a part of the legacy
entailed by Adam on all his descendants. u A friend in need is always
a friend indeed." Nothing you can do will so effectually conduce to
408
APPENDIX.
endear you to each other afterwards, as a kind, sympathetic attention
towards one another when under distress.
Lastly, Married persons ought to pray for each other. When they
approach the Throne of Grace, to ask for blessings to themselves in
secret prayer, they ought to implore the Father of mercies to crown
their partner with his blessing also—that He would bless their union,
and cause it to terminate in their present, future, mutual and eternal
happiness and advantage.
Thus living, and thus acting, you will have the fairest prospect of
proving an exemplary pattern of conjugal affection, harmony, and hap-
piness, in the circle of society where you may be called to move—in
a word, " you will be lovely and pleasant in your lives, and in your
death you will not be divided."
[He may then cause them to join their right hands, and pronounce
the marriage-covenant, in these words.]
Addressing the man first.
Do you, Sir, take this lady to be your lawful and married wife; and
do you solemnly promise and agree, 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 separated
by death ? Do you ?
[To which the Bridegroom will answer,« I do." Then addressing
the Bride]
" Do you, Madam, take this Gentleman, whom you hold by the
hand, to be your lawful and married Husband ; and do you solemnly
promise and agree, 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 ?
Do you ?
[To which the Bride will answer, " I do."]
[The minister or magistrate may then conclude by saying,]
" Mutual affection and mutual consent are the strongest cement of
the marriage-contract; and as you have now ^publicly and solemnly
professed and promised your affection for and fidelity to each other,
and by this union of your hands given this public testimony and
pleasing pledge of the union of your hearts, I.pronounce you husband
and wife, according to the ordinance of God, and declare you to be
married persons. Whom, therefore, God hath thus joined together,
let not man put asunder.
And may the blessing of God attend you through life, comfort you
in death, and be your lasting felicity beyond the grave, for Christ'
sake. Amen."
APPENDIX.
409
Mortgages, see Deeds.
POWER OF ATTORNEY.
Form of a general Letter of Attorney.
Georgia, "1 Know all men by these presents, That I, Lawrence
Clarke County. J Earl, of the county and state aforesaid, for divers
good causes and considerations me hereunto moving, have made, or-
dained and appointed, and by these presents do make, ordain and ap-
point Ransom Peterson, of the county of Charlotte, in the state of Vir-
ginia, 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 Samuel Wright of the county and state last men-
tioned [<or from all persons whatever who are indebted to the person
giving the letter of attorney3* all such sum or sums of money, debts,
and demands whatsoever, which are now due and owing unto me by
and from the said Samuel Wright [or all persons whatever] and to
have, use, and take, all lawful wafs and means, in my name, or other-
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 attornies under him, for the pur-
poses 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 have hereunto set my hand, and affixed my
seal, this tenth day of June, in the year one thousand eight hundred
and nineteen.
LAWRENCE EARL. ~ (£. S.j
Signed, sealed and acknowledged before me,
CHARLES GOODMAN, J. P.
* If the letter of attorney is to transfer stock, receive a dividend from a bank,
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
distinctly expressed in the power of attorney, instead of the one mentioned in
the foregoing form. And if it is to convey land, the land musi be as particularly
described in the power of attorney, as it would be in^the deed of conveyance^
and the power of attorney ought to be annexed to the deed, and both recorded
together.
410
APPENDIX.
If a letter of attorney be going into another state to be used, it
should have the following certificates.
Georgia, I James Thompson, clerk of the Inferior Court for
Clarke County. J said county, do hereby certify, that Charles Good-
man, whose name appears to the foregoing letter of attorney as a sub-
scribing witness, is a justice of the peace for said county, and 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 June,
one thousand eight hundred and nineteen.
JAMES THOMPSON, Clk. {L. S.)
Georgia, ") I Richard Campbell, one of the Justices of the In-
Clarke County. J 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 to be had and given to his attesta-
tion as such, and that the same is in due form.
Given under my hand and seal, this tenth day of June, in the year
one thousand eight hundred and nineteen.
RICHARD CAMPBELL, J. I. C. (L. S.)
RAPE.
Form of Warrant.
Georgia, 1 To Refer Careful, constable, or some other lawful
Clarke County. J officer to execute.
Forasmuch as Betsy Claybank, spinster, of the said county, hath
complained on oath before me Charles Dodd, one of the justices of the
peace of the said county, that Allen Oman, late of Clarke, on the third
day of June, in the year of our Lord one thousand eightt hundred and
eighteen, at Watkinsville, in the county aforesaid, on and upon the said
Betsy Claybank, violently and feloniously did make an assault, and her
the said Betsy Claybank, against the will of her the said Betsy Clay-
bank, then and there feloniously ravished, and carnally knew. These
are therefore to command you to make diligent search for tl5fe said
Allen Oman, and him being found, that you bring him before me, or
some other justice of the peace for the said county, to be examined,
APPENDIX.
411
touching the premises, and to be otherwise dealt with according to
law.
Given under my hand and seal, the third day of June, in the year of
our Lord one thousand eight hundred and eighteen.
CHARLES DODD, J. P. L. S.
For the form of the examination and mittimus, see Examination and
Commitment.
For the form of recognizance, see Recognizance.
RECOGNIZANCE.
fiorm of a Recognizance with Sureties.
Georgia, 1 Be it remembered, that on the third day of June,
Clarke County. J in the year of our Lord one thousand eight hun-
dred and eighteen, Allen Omant of Watkinsville, in the county afore-
said, and Peter Oman, of Bear Creek, in the county aforesaid, and
Ben. Oman, of the county aforesaid, personally came before me
John Peacemaker, one of the justices of the peace for the county
aforesaid, and acknowledged themselves to owe to his excellen-
cy the governor of said state and his successors in office, that is
to say, the said Allen Oman the sum of one hundred dollars, and the
said Peter Oman and Ben. Oman, each the sum of fifty dollars sepa-
rately, of good and lawful money of the said state, to be made and le-
vied of their goods and chattels, lands and tenements respectively, to
the use of the said state, if the said Allen Oman shall make default in
the condition hereon indorsed (or hereunder written.)
[Insert whatever condition the nature of the charge may require.]
Acknowledged before me,
JOHN PEACEMAKER, J. P.
Recognizance without Sureties.
Georgia, ] Be it remembered, that on the third day of
Clarke County. J June, in the year of our Lord one thousand eight
hundred and eighteen, Allen Oman, of Watkinsville, in the county
aforesaid, personally came before me John Goodman, one of the
justices of the peace for the said county, and acknowledged him-
self to owe to his excellency the governor of said state, and his sue-
cessors in office, the sum of fifty dollars, of good and lawful mo-
ney of the said state, to be made and levied of his goods and
412
APPENDIX.
chattels, lands and tenements, to the use of the said state, if he the
said Allen Oman shall fail in the condition underwritten (or indorsed.)
^Insert the condition required by the charge.3
Acknowledged before me,
JOHN GOODMAN, J. P.
SALE OF PERSONALS.
Form of a Bill of Sale of Personals.
Georgia, "1 Know all men by these presents, that I, Lawrence
Clarke County. J Earl, of the county and state aforesaid, for and in
consideration of the sum oifve hundred dollars to me in hand paid by
John Lovemoney, of the same place, the receipt whereof I do hereby
acknowledge, have granted, bargained, and sold, and by these pre-
sents do grant, bargain, and sell unto the said John Lovemoney, his
heirs and assigns, the following property: \Here insert whatever per-
sonal property is intended to be conveyed, taking care to describe it
plainly and distinctly."] To have and to hold the aforesaid bargained
property to him the said John Lovemoney, his heirs and assigns for
ever. And I the said Lawrence Early for myself, my heirs, execu-
tors and administrators, all and singular the said bargained property
unto the said John Lovemoney, his heirs and assigns, against me and
my said executors and administrators, and against all and every other
person 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 June, one thousand eight hundred and nineteen.
LAWRENCE EARL, L. S.
Signed, sealed, and delivered in presence of
CHARLES GOODMAN, J. P.
SEARCH WARRANT.
Form of a Search Warrant.
Georgia, ") To John Careful, constable, or any other lawful offi-
Clarke County. J cer of the said county.
Whereas it appears to tne Ben. Stiles} one of the justices of the
APPENDIX.
413
peace of and for the said county, by the information on oath of Charles
Dodd, of WatkinsviUe, in the said county, that the following goods, to
wit, one piece Holland, &c., have, within two days last past, by some
person or persons unknown, been feloniously stolen, taken and carried
away, out of the house of the said Charles Doddy at WatkinsviUe
aforesaid, in the county aforesaid} and that the said Charles Dodd hath
probable cause to suspect, and doth suspect, that the said goods, or
part thereof, are concealed in the dwelling house of Peter Badmany in
the said county. These are therefore, in the name of the state, to au-
thorize and require you, with proper and necessary assistants, to enter,
in the day time into the said dwelling house of the Said Peter Badmany
at WatkinsviUe, in the county aforesaid, and there diligently to search
for the said goods; and if the same, or any part thereof, shall be found
upon such search, that you bring the goods so found, and also the body
of the said Peter Badman before me, or some other justice of the
peace of the said county, to be disposed of and dealt with according
to law.
Given at Watkinsvilley in the said county, under my hand and seal,
the third day of Juney in the year of our Lord one thousand eight hun-
dred and eighteen.
BEN. STILES, J. P. L. S.
V A GRANTS. (Warrant against.)
Georgia, ") To Allen Carefuly constable, or any other lawful officer
Clarke County. J to execute.
Forasmuch as Ben. Stilesy of this county, hath made oath before
me Charles JDoddy one of the justices of the peace of and for the said
county, that David Everall is a person who has no apparent means of
subsistence, and neglects applying himself to any honest calling, but is
now seen wandering about within the limits of this county, though
able to work and support himself in a reputable way, endeavouring to
maintain himself by gaming and other undue means, leading an idle,
immoral and profligate course of life. These are therefore to com-
mand you to bring the said David Everally before me or some other
justice of the peace for the said county, to be examined touching the
premises, and to be otherwise dealt with as the law directs.
Given under my hand and seal, the third day of Juney in the year
of our Lord one thousand eight hundred and eighteen.
CHARLES DODD, J. P. L. S.
414
APPENDIX.
Mittimus for want of security for Good Behaviour.
Georgia, ") By Charles Dodd, one of the justices of the peace of
Clarke County. J and for the said county.
To the keeper of the common jail of the said county, greeting:
Whereas David Ever all hath been complained against by Ben.
Stiles, as a vagrant and as a person who hath no apparent means of
subsistence, and who neglects applying himself to any honest calling,
but wanders about, though able to work and support himself in a re-
putable way, and endeavours to maintain himself by gaming or other
undue means, leading an idle, immoral and profligate course of life j
and thereupon the said David Everall hath been brought before me,
and hath been examined and proofs heard by and before me concern-
ing the premises; and upon such proofs, I the said justice have been
convinced of the truth of the said charge, and have required the said
David Everall to provide and produce sureties for his good behaviour
and future industry, and he the said David Everall hath refused and
neglected to produce the same. These are therefore to command
you to receive into your said jail, the said Ddvid Everall, for the
crime aforesaid, 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 third day of June, in the year of
our Lord one thousand eight hundred and eighteen.
CHARLES DODD, J. P. L. S
APPENDIX.
415
THE
CONSTITUTION
OF THE
UNITED STATES OF AMERICA;
rfs firofiosed by the Convention, held at Philadelphia, September 17,
1787, and since ratified by the several States: with the several
amendments thereto.
We, the People of the United States, in order to form a more perfect
union, establish justice, insure domestic tranquillity, provide for
the common defence, promote the general welfare, and secure the
blessings of liberty to ourselves and our posterity, do ordain and es-
tablish this Constitution for the United States of America.
ARTICLE I.
SECTION I.
ALL legislative powers herein granted shall be vested in a Con-
gress of the United States, which shall consist of a senate and house of
representatives.
SECTION II.
The house of representatives shall be composed of members chosen
every second year, by the people of the several states ; and the elec-
tors in each state shal have the qualifications requisite for electors of
the most numerous branch of the State legislature.
No person shall be a representative 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.
Representatives and direct taxes shall be apportioned among the se-
veral states which may be included within this union, according to
their respective numbers, which shall be determined by adding to the
whole number of free persons, including those bound to service for a
term of years, and excluding Indians not taxed, three-fifths of all other
persons. The actual enumeration shall be made within three years
after the first meeting of the congress of the United States, and within
every subsequent term of ten years, in such manner as they shall by
APPENDIX.
law direct. The number of representatives shall not exceed one for
every thirty thousand, but each slate shall have at least one represen-
tative; and until such enumeration shall be made, the state of New-
Hampshire shall be entitled to chuse three, Massachusetts eight,
Hhode-Island and Providence Plantations one, Connecticut five, New-
York six, New-Jersey four, Pennsylvania eight, Delaware one, Mary-
land six, Virginia ten, North-Carolina five, South-Carolina five, and
Georgia three.
When vacancies happen in the representation from any state, the
executive authority thereof shall issue writs of election to fill such
vacancies.
The house of representatives shall chuse their speaker and other of-
ficers, and shall have the sole power of impeachment.
SECTION III.
The senate of the United States shall be composed of two senators
from each state, chosen by the legislature thereof, for six years; and
each senator shall have one vote.
Immediately after they shall be assembled in consequence of the
first election, they shall be divided, as equally as may be, into three
classes. The seats of the senators of the first class shall be vacated at
the expiration of the second year, of the second class at the expiration
of the fourth year, and of the third class at the expiration of the sixth
year, so that one-third may be chosen every second year; and if va-
cancies happen by resignation or otherwise, during the recess of the
legislature of any state, the executive thereof may make temporary
appointments until the next meeting of the legislature, which shall
then fill such vacancies.
No person shall be a senator who shall not have attained to the age
of thirty years, and been nine years a citizen of the United States, and
who shall not, when elected, be an inhabitant of that state for which
he shall be chosen.
The vice-president of the United States shall be president of the se-
nate, but shall have no vote, unless they be equally divided.
The senate shall chuse their other officers, and also a president pro
tempore, in the absence of the vice-president, or when he shall exer-
cise the office of president of the United States.
The senate shall have the sole power to try all impeachments.
When sitting for that purpose, they shall be on oath or affirmation.
When the president of the United States is tried, the chief justice
shall preside s And no person shall be convicted without the concur-
rence of two-thirds of the members present.
Judgment in cases of impeachment shall not extend further than to
removal from office, and disqualification to hold and enjoy any office of
honour, trust or profit under the United States: but the partyconvicted
APPENDIX.
411
shall nevertheless be liable and subject to indictment, trial, judgment
and punishment, according to law.
section iv.
The times, places, and manner of holding elections for senators and
representatives shall be prescribed in each state by the legislature
thereof; but the congress may at any time, by law, make or alter such
regulations, except as to the places of choosing senators.
The congress shall assemble at least once in every year, and such
meeting shall be on the first Monday in December, unless they shall
by law appoint a different day.
section v.
Each house shall be the judge of the elections, returns, and qualifi-
cations of its own members ; and a majority of each shall constitute a
quorum to do business ; but a smaller number may adjourn from day
to day, and may be authorized to compel the attendance of absent mem-
bers, in such manner and under such penalties as each house may
provide.
Each housfe may determine the rules of its proceedings, punish its
members for disorderly behaviour, and with the concurrence of two-
thirds, expel a member.
Each house shall keep q journal of its proceedings, and from time
to time publish the same, excepting such parts as may in their judg-
ment require secrecy ; and the yeas and nays of the members of ei-
ther house on any question, shall, at the desire of one-fifth of those
present, be entered on the journal.
Neither house, during the session of congress, shall, without the
consent of the other, adjourn for more than three days, nor to any
other place than that in which the two houses shall be sitting.
section vi.
The senators and representatives shall receive a compensation for
their services, to be ascertained by law, and paid out of the treasury
of the United States. They shall in all cases, except treason, felony
and breach of the peace, be privileged from arrest during their attend-
ance at the session of their respective houses* and in going to and re-
turning from the same ; and for any speech or debate in either house,
they shall not be questioned in any other place.
No senator or representative shall, during the time for which he
was elected, be appointed to any civil office under the authority of the
United States, which shall have been created, or the emoluments
whereof shall have been increased during such time; and no person
holding any office under the United States, shall be a member of ei-
ther house during his continuance in office.
3 G
418
APPENDIX.
SECTION VII.
All bills for raising revenue shall originate in the house of represen-
tatives; but the senate may propose or concur with amendments as
on other bills.
Every bill which shall have passed the house of representatives and
the senate, shall, before it become a law, be presented to the presi-
dent of the United States ; if he approve, he shall sign it; but if not,
he shall return it, with his objections, to that house in which it shall
have originated, who shall enter the objections at large on their jour-
nal, and proceed to re-consider it. If after such re-consideration, two-
thirds of that house shafll agree to pass the bill, it shall be sent, toge-
ther with the objections, to the other house, by which it shall likewise
be re-considered, and if approved by two-thirds of that house, it shall
become a law. But in all such cases, the votes of both houses shall
be'determined by yeas and nays, and the names of the persons voting
for and against the bill shall be entered on the journal of each house
respectively. If any bill shall not be returned by the president within
ten days (Sundays excepted) after it shall have been presented to him,
the same shall be a law, in like manner as if he had signed it, unless
the congress by their adjournment prevent its return, in which case it
shall not be a law.
Every order, resolution or vote to which the concurrence of the se-
nate and house of representatives may be necessary (except on a ques-
tion of adjournment) shall be presented to the president of the United
States; and before the same shall take effect, shall be approved by
him, or being disapproved by him, shall be re-passed by two-thirds of
the senate and house of representatives, according to the rules and li-
nutations prescribed in the case of a bill.
SECTION VIII.
The congress shall have power
To lay and collect taxes, duties, imposts and excises, to pay the
debts and provide for the common defence and general welfare of the
United States; but all duties, imposts and excises shall be uniform
throughout the United States ;
To borrow money on the credit of the United States ;
To regulate commerce with foreign nations, and among the several
states, and with the Indian tribes ;
To establish a uniform rule of naturalization, and uniform laws on
the subject of bankruptcies, throughout the United States ;
To coin money, regulate the value thereof, and of foreign coin, and
fix the standard of weights and measures;
To provide for the punishment of counterfeiting the securities and
current coin of the United States;
APPENDIX.
419
To establish post-offices and post-roads;
To promote the progress of science and useful arts, by securing,
for limited times, to authors and inventors, the exclusive right to their
respective writings and discoveries ;
To constitute tribunals inferior to the supreme court; to define and
punish piracies and felonies committed on the high seas, and offences
against the law of nations ;
To declare war, grant letters of marque and reprisal, and make
rules concerning captures on land and water;
To raise and support armies ; but no appropriation of money to that
use, shall be for a longer term than two years ;
To provide and maintain a navy;
To make rules for the government and regulation of the land and
naval forces;
To provide for calling forth the militia to execute the laws of the
union, suppress insurrections and repel invasions ;
To provide for organizing, arming and disciplining the militia, and
for governing such part of them as may be employed in the service of
the United States, reserving to the states respectively, the appoint-
ment of the officers, and the authority of training the militia accord-
ing to the discipline prescribed by congress;
To exercise exclusive legislation in all cases whatsoever, over such
district (not exceeding ten miles square) as may, by cession of parti-
cular states, and the acceptance of congress, become the seat of the
government of the United States, and to exercise like authority over
all places purchased by the consent of the legislature of the state in
which the same shall be, for the erection of forts, magazines, arsenals,
dock-yards, and other needful buildings ;—And
To make all laws which shall be necessary and proper for carrying
into execution the foregoing powers, and all other powers vested by
this constitution in the government of the United States, or in any de-
partment or officer thereof.
SECTION IX.
The migration or importation of such persons as any of the states
now existing shall think proper to admit,'shall not be prohibited by
the congress prior to the year 1808, but a tax or duty may be imposed
on such importation, not exceeding ten dollars for each person.
The privilege of the writ of habeas corpus shall not be suspended,
unless when in cases of rebellion or invasion the public safety may re-
quire it.
No bill of attainder, or ex post facto law shall be passed.
No capitation, or other direct tax, shall be laid, unless in propor-
tion to the census or enumeration herein before directed to be taken.
420
APPENDIX.
No tax or duty shall be laid on articles exported fvom any state. No
preference shall be given by any regulation of commerce or revenue
to the ports of one state over those of another; nor shall vessels bound
to or from one state, be obliged to enter, clear or pay duties in
another.
No money shall be drawn from the treasury, but in consequence of
appropriations made by law : and a regylar statement and account of
the receipts and expenditures of all public money, shall be published
from time to time.
No title of nobility shall be granted by the United States: And no
person holding any office of profit or trust under them, shall, without
the consent of the congress, accept of any present, emolument, office
or title of any kind whatever, from any king, prince or foreign state.
section x.
No state shall enter into any treaty, alliance or confederation ; grant
letters of marque and reprisal; coin money; emit bills of credit; make
any thing but gold and silver coin a tender in payment of debts; pass
any bill of attainder, ex post facto law, or law impairing the obligation
of contracts, or grant any title of nobility.
No state shall, without the consent of the congress, lay any imposts
or duties on imports or exports, except what may be absolutely ne-
cessary for executing its inspection laws: and the net produce of all
duties and imposts, laid by any state on imports or exports, shall be
for the use of the treasury of the United States; and all such laws
shall be subject to the revision and controul of the congress. 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 any agreement or
compact with another state, or with a foreign power, or engage in
war, unless actually invaded, or in such imminent 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 sena-
tors 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.
APPENDIX.
421
The electors shall meet in their respective states, and vote by bal-
lot for two persons, of whom one at least shall not be an inhabitant 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 govern-
ment of the United States, directed to the president of the senate. The
president of the senate shall, in the 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 ma-
jority, and have an equal number of votes, then the house of represen-
tatives 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, chuse the president. But in
chusing the president, the votes shall be taken by states ; the represen-
tation 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 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 shall remain two or more who have equal votes, the senate
shall chuse 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,
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, resignation, or in-
ability, both of the president and vice-president, declaring what officer
shall then act as president, and such officer shall act accordingly, until
the disability be rfemoved, or a president shall be elected.
The president shall, at stated times, receive for his services a com-
pensation, which shall neither be increased nor diminished during the
* This mode of election is changed by the last amendment to the constitu-
tioa-
422
APPENDIX.
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 enter on the execution of his office, he shall take the fol-
lowing oath or affirmation :
« I do solemnly swear (or affirm) that I will faithfully execute tht
" 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 the 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 executive de-
partments, 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 se-
nate, 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 provided
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 depart-
ments.
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 in.
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 ex-
traordinary occasions, convene both houses, or either of them, and, in
case of disagreement between them, with .respect to the time of ad-
journment, 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 commission all the
officers of the United States.
section iv.
The president, vice-president, and all civil officers of the United
APPENDIX.
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 the constitution, the laws of the United States, and trea-
ties made, or which shall be made, under their authority ; to all cases
affecting ambassadors, or other public ministers and consuls; to all
cases of admiralty and maritime jurisdiction ; to controversies to which
the United States shall be a party; to controversies between two or
more states; between a state and citizens of another state, between
citizens of different states, between citizens of the same state claim-
ing lands under grants of the 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 con-
suls, 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 Con-
gress 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 tes-
timony of two witnesses to the same overt act, or on confession in
open court.
The congress shall have power to declare th« punishment of trea-
son, but no attainder of treason shall work corruption of blood, or for-
feiture, except during the life of the person attainted.
424
APPENDIX.
ARTICLE IV.
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 con-
gress 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 im-
munities 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 jurisdiction 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 legislatures of the
states concerned, as well as of the congress.
The congress shall have power to dispose of and make all needful
rules and regulations respecting the territory, or other property, be-
longing to the United States ; and nothing in this constitution shall be
so construed, as to prejudice any claims of the United States, or of any
particular state.
SECTION IV.
The United Stales shall guarantee to every state in this union a re-
publican 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 domestic \iolence.
ARTICLE V.
The congress, whenever two-thirds of both houses shall deem it
necessary, shall propose amendments to this constitution, or, on the
APPENDIX*
425
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: Provided that no
amendment, which may be made prior to the year one 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, with-
out 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,
any thing 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
3 H
426
APPENDIX.
of the United States of America the twelfth. In witness whereof
we have hereunto subscribed our names.
Go: WASHINGTON, Presidt.
and deputy from Virginia.
New-Hampshire. Delaware.
John Langdon,
Geo. Read,
Nicholas Gilman.
Gunning Bedford, junr.
Massachusetts.
John Dickinson,
Nathaniel Gorham,
Richard Bassett,
Rufus King.
Jaco. Broom.
Connecticut.
Maryland.
Wm. Saml. Johnson,
James M'Henry,
Roger Sherman.
Dan. of St. Thos. Jenifer,
New- York.
Dan. Carroll.
Alexander Hamilton.
Virginia.
New-Jersey.
John Blair,
Wil. Livingston,
James Madison, jr.
David Brearley,
North-Carolina.
Wm. Paterson,
Wm. Blount,
Jona. Dayton.
Richd. Dobbs Spaight,
Pennsylvania.
IIu. Williamson.
B. Franklin,
South-Carolina.
Thomas Mifflin,
J. Rutledge,
Rob. Morris,
Charles Cotesworth Pinckney,
Geo. Clymer,
Charles Pinckney,
Thos. Fitzsimons,'
Pierce Butler.
Jared Ingersoll,
Georgia.
James Wilson,
William Few,
Gouv. Morris.
Abr. Baldwin.
Attest, William Jackson, Secretary.
In Convention, Monday, September 17th, 1787.
Present—The states of New-Hampshire, Massachusetts, Connecticut,
Mr. Hamilton from New-York, New-Jersey, Pennsylvania, Dela-
ware, Maryland, Virginia, North-Carolina, South-Carolina, and
Georgia.
Resolved,
THAT the preceding constitution be laid before the United States
in congress assembled, and that it is the opinion of this convention that
APPENDIX.
42 1
it should afterwards be submitted to a convention of delegates, chosen
in each state by the people thereof, under the recommendation of its
legislature,1 for their assent and ratification ; and that each convention,
assenting to, and ratifying the same, should give notice thereof to the
United States, in congress assembled.
Resolved, That it is the opinion of this convention, that as soon as
the conventions of nine states shall have ratified this constitution, the
United States in congress assembled should fix a day on which electors
should be appointed by the states which shall have ratified the same,
and a day on which the electors should assemble to vote for the presi-
dent, and the lime and place for commencing proceedings under this
constitution: That after such publication the electors should be ap-
pointed, and the senators and representatives elected: That the elec-
tors should meet on the day fixed for the election of the president, and
should transmit their votes, certified, signed, sealed, and directed, as
the constitution requires, to the secretary of the United States, in
congress assembled; that the senators and representatives should con-
vene at the time and place assigned j that the senators should appoint
a president of the senate, for the sole purpose of receiving, opening,
and counting the votes for president; and, that after he shall be chosen,
the congress, together with the president, should, without delay, pro-
ceed to execute this constitution.
By the unanimous order of the convention,
Go: WASHINGTON, Presidt.
W. Jackson, Secretary.
In Convention, September 17th, 1787.
Sir,
WE have now the honour to submit to the consideration of the Uni-
ted States, in congress assembled, that constitution which has appeared
to us the most advisable.
The friends of our country have long seen and desired, that the
power of making war, peace and treaties, that of levying money, and
regulating commerce, and the correspondent executive and judicial
authorities, should be fully and effectually vested in the general go-
vernment of the union : but the impropriety of delegating such exten-
sive trust to one body of men, is evident—Hence results the necessity
of a different organization.
It is obviously impracticable in the federal government of these
states, to secure all rights of independent sovereignty to each, and yet
provide for the interest and safety of all—Individuals entering into
428
APPENDIX.
society, must give up a share of liberty to preserve the rest. The
magnitude of the sacrifice must depend, as well on situation and cir-
cumstance, as on the object to be obtained. It is at all times difficult
to draw, with precision, the line between those rights which must be
surrendered, and those which may be reserved ; and on the present
occasion this difficulty was increased by a difference among the seve-
ral states as to their situation, extent, habits, and particular interests.
In all our deliberations on this subject, we kept steadily in our view,
that which appears to us the greatest interest of every true American,
the consolidation of our union, in which is involved our posterity,
felicity, safety,and perhaps our national existence. This important consi-
deration, seriously and deeply impressed upon our minds, led each state
in the convention to be less rigid on points of inferior magnitude, than
might have been otherwise expected; and thus the constitution, which
■we now present, is the result of a spirit of amity, and of that mutual
deference and concession which the peculiarity of our political situa-
tion rendered indispensable.
That it will meet the full and entire approbation of every state, is
not, perhaps, to be expected; but each will doubtless consider, that
had her interest been alone consulted, the consequences might have
been particularly disagreeable or injurious to others : that it is liable
to as few exceptions as could reasonably have been expected, we hope
and believe ; that it may promote the lasting welfare of that country so
dear to us all, and secure her freedom and happiness, is our most ar-
dent wish. With great respect, we have the honour to be, Sir, your ex-
cellency's most obedient and humble servants,
Go: WASHINGTON, President.
By unanimous order of the convention.
His excellency the Pre-")
sident of Congress, j
CONGRESS OF THE UNITED STATES,
BEGUN AND HELD AT THE CITY OF NEW-YORK, ON WEDNES-
DAY THE FOURTH DAY OF MARCH, ONE THOUSAND
SEVEN HUNDRED AND EIGHTY-NINE.
The convention of a number of states, having, at the time of their
adoption of the constitution, expressed a desire, in order to prevent
APPENDIX.
429
misconstruction or abuse of its powers, that further declaratory and
restrictive clauses should be added : And as extending the ground
of public confidence in the gQvernment, will best ensure the benefi-
cent ends of its institution s
Resolved by the senate and house of Representatives of the United
States of America, in congress assembled, two-thirds of both houses con-
curring. That the following articles be proposed to the legislatures of
the several states, as amendments to the constitution of the United
States, all or any of which articles, when ratified by three-fourths of
the said legislatures, to be valid to all intents and purposes, as part of
the said constitution,; viz.
Articles in addition to, and in amendment of the constitution of the United
States of America, proposed by congress, and ratified by the legis-
latures of the several states, pursuant to the fifth article of the ori-
ginal constitution.
ARTICLE THE FIRST.
After the first enumeration required by the first article of the con-
stitution, there shall be one representative for every thirty thousand
persons, until the number shall amount to one hundred, after which the
proportion shall be so regulated by congress, that there shall be not less
than one hundred representatives, nor less than one representative for
every forty thousand persons, until the number of representatives shall
amount to two hundred ; after which the proportion shall be so regu-
lated by congress, that there shall not be less than two hundred repre-
sentatives, nor more than one representative for every fifty thousand
persons.
ARTICLE THE SECOND.
No law varying the compensation for the services of the senators
and representatives, shall take effect, until an election of representa-
tives shall have intervened.
ARTICLE THE THIRD.
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 assem-
ble, and to petition the government for a redress of grievances.
ARTICLE THE FOURTH.
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 in-
fringed.
430
APPENDIX.
ARTICLE THE FIFTH.
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.
ARTICLE THE SIXTH.
The right of the people to be secure in their persons, houses, pa-
pers and effects, against unreasonable searches and seizures, shall not
be violated, and no warrants 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 THE SEVENTH.
No person shall be held to answer for a capital or otherwise infa-
mous 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 jeopardy of
life or limb ; nor shall be compelled, in any criminal case, to be wit-
ness against himself, nor be deprived of life, liberty, or property, with-
out due process of law ; nor shall private property be taken for public
use without just compensation.
ARTICLE THE EIGHTH.
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 THE NINTH.
In suits at common law, where 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 of
the United States, than according to the rules of the common law.
ARTICLE THE TENTH.
Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.
APPENDIX,
431
ARTICLE THE ELEVENTH.
The enumeration in the constitution, of certain rights, shall not- be
construed to deny or disparage others retained by the people.
ARTICLE THE TWELFTH.
The powers not delegated to the United States by the constitution,
nor prohibited by it to the states, are reserved to the states respective-
ly, or to the people.
ARTICLE THE THIRTEENTH.
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 citizens or
subjects of any foreign state.
ADDITIONAL AMENDMENT,
The ejectors 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 vice-president; and in distinct
ballots, the person voted for as president; and they shall make dis-
tinct lists of all persons voted for as president, and of all persons vo-
ted 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 se-
nate. The president of the senate, shall, in the 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 majo-
rity of the whole number of electors appointed. And if no person
have such majority, then from the persons having the highest numbers,
not exceeding three, on the list of those voted for as president: the
house of representatives shall choose immediately, by ballot, the pre-
sident. But in choosing the president, the votes shall be taken by
states ; the representation from each state having one vote. A quo-
rum 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 necessary
to a choice. And if the house of representatives shall not choose a
president whenever the right of choice shall devolve upon them, be-
fore the fourth day of March next following, then the vice-president
432
APPENDIX.
shall act as president, as in the case of the death or other constitutional
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.
ADDITIONAL AMENDMENT.
If any citizen of the United States shall accept, claim, receive, of
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 pow-
er, 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.
ICpThe 1st and 2d articles of the above amendments, were pro-
posed by the two houses of congress to the several states, at the first
session of the first congress, but although recognised at the 488th
page of volume 4, of the Laws of the United States, it does not appear
that they have been ratified.
The 3d, 4th, 5th, 6th, 7th, 8th, 9th, lOt'n, 11th, and 12th articles of
the amendments, were proposed by the two houses of congress to the
several states at the first session of the first congress, and were rati-
fied by the states.
The 13th article of the amendments was proposed to the several
states at the first session of the third congress, and was ratified.
The amendment, relative to the mode of electing president and vice-
president of the United States, was proposed by the two houses of con-
gress to the several states, at the first session of the eighth congress,
and was duly ratified.
The last amendment, relative to titles of nobility, &c. was proposed
at the second session of the eleventh congress.
APPENDIX.
433
THE
CONSTITUTION
OF
THE STATE OF GEORGIA.
article i.
1. The legislative, executive, and judiciary departments of govern-
ment shall be distinct, and each department.shall be confided to a sepa-
rate body of magistracy ; and no person, or collection of persons, being
of one of those departments, shall exercise any power properly attach-
ed to either of the others, except in the instances herein expressly
permitted.
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.
3. The senate shall be elected annually, on the first Monday in No-
vember, until such day of election be altered by law, and shall be com-
posed of one member from each county, to be chosen by the electors
thereof.
4. 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 inhabitant 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 public business of this state, 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 dollars, 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 discharge of his just
debts, over and above that sum.
5. The senate shall elect, by ballot, a president out of their own
body.
6. The senate shall have the sole power to try all impeachments.
When sitting for that purpose, they shall be on oath or affirmation; and
31
434
APPENDIX.
no person shall be convicted, without the concurrence of tw o thirds of
the members present; judgment, in cases of impeachment, shall not
extend further than removal from office and disqualification to hold
and enjoy any office of honour, trust or profit, within this state; but the
party convicted, shall, nevertheless, be subject to indictment, trial;
judgment, and punishment according to law.
7. The house of representatives shall be composed of members from
all the counties which now are, or hereafter may be included within
this state, according to their respective numbers of free white persons,
and including three fifths of all the people of colour ; the actual enu-
meration 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 enumeration, shall be enti-
tied 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 cho-
sen annually, on the first Monday in November, until such day of elec-
tion be altered by law—until the aforesaid enumeration shall be made,
the several counties shall be entitled to the following number of rep-
resentatives, respectively : Camden, two ; Glynn, two ; Liberty, three j
M'Intosh, two ; Bryan, one; Chatham, four ; Effingham, two ; Scri-
ven, two; Montgomery, two ; Burke, three ; Bullock, one ; Jefferson,
three; Lincoln, two; Elbert, three; Jackson, two; Richmond, three ;
Wilkes, four; Columbia, three ; Warren, three ; Washington, three ;
Hancock, four; Greene, three; Oglethorpe, three; and Franklin,
two.
8. No person shall be a representative who shall not have attained
to the age of twenty-one years, and have been seven years a citizen of
the United States, three years an inhabitant of this state, and have usu-
ally resided in the county in which he shall be chosen, one year imme-
diately preceding his election (unless he shall have been absent on
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 hundred and fifty dollars, or of taxable property to the amount of
five hundred dollars, within the county, for one year preceding his
election; and whose estate, shall, on a reasonable estimation, be com-
petent to the discharge of his just debts, over and above that sum.
9. The house of representatives shall choos6 their speaker and oth-
er officers.
10. They shall have solely the power to impeach all persons who
have been, or may be in office.
APPENDIX.
4 33
11. No person holding any military commission, or other appoint-
ment, having any emolument or compensation annexed thereto, under
this state, or the United States, or either of them, (except justices of
the inferior court, justices of the peace, and officers of the militia,) nor
any person who has had charge of public monies belonging to the state,
unaccounted for and unpaid, or who has not paid all legal taxes or con-
tributions to the government, required of him, shall have a seat in ei-
ther branch of the general assembly ; nor shall any senator or repre-
sentative be elected to any office or appointment, by the legislature,
having any emoluments or compensation 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,
within 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.
12. The meeting of the general assembly shall be annual, on the se-
cond Tuesday in January, until such day of meeting be altered by law;
a majority of each branch shall be authorised 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 may pre-
scribe.
13. Each house shall be judges of the elections, returns, and quali-
fications of its own members, with powers to expel or punish by cen-
suring, fining, and imprisoning, or either, for disorderly behaviour,
and may expel any person convicted of any felonious or infamous of-
fence; each house may punish by imprisonment, during session, any
person, not a member, who shall be guilty of disrespect, by any disor-
derly or contemptuous behaviour in its presence, or who, during ses-
sion, shall threaten harm to the body or estate of any member, for any
thing said or done in either house, or who shall assault any of them
therefor; or who shall assault or arrest any witness in going to, or re-
turning therefrom, or who shall rescue any person, arrested by order
of either house.
14. No senator or representative shall be liable to be arrested during
his attendance on the general assembly/ or for ten days previous to its
sitting, or for ten days after the rising thereof, except for treason, fe-
lony, or breach of the peace ; nor shall any member be liable to an-
swer for any thing spoken in debate, in either house, in any court or
place, elsewhere ; but shall, nevertheless, be bound to answer for per-
jury, bribery, or corruption.
15. Each house shall keep a journal of its proceedings, and pub-
llsh them immediately after their adjournment; and the yeas and nays
40ft
APPENDIX.
of the members on any question, shall, at the desire of any two mem-
bers, be entered on the journals
16. All bills for raising revenue, or appropriating monies, shall
originate in the house of representatives; but the senate shall propose
or concur with amendments, as in other bills.
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 se-
nate, and speaker in the house of representatives: no bill or ordinance
which shall have been rejected by either house, shall be brought in
again during the session, under the same or any other title, without
the consent of two-thirds of each branch.
' 18. Each senator and representative, before he be permitted to take
his seat,shall take ah oath,or make affirmation, that he hath not practised
any unlawful means, either directly or indirectly, to procure his elec-
tion; 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 ineligible 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 penalties as may be pre-
scribed by law.
19. Every member of the senate or house jof 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 ray election by bribery, treats, canvassing, or other
undue or unlawful means, used by myself, or others by my desire or
approbation, for that purpose; that I consider myself constitutionally
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, and
the constitution of the United States."
20. No person who hath been, or may be convicted of felony, 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.
21. Neither house, during the session" of the general assembly,
shall, without the consent of the other, adjourn for more than three
APPENDIX.
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 adjournment, the governor may
adjourn them.
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 constitution.
23. They shall have power to alter the boundaries of the present
counties, and to lay off new ones, as well out of the counties 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 this 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 government, and from whose will all ruling au-
thority of right flows, DOTH assert and declare the boundaries of
this state to be as follows: That is to say, the limits, boundaries, juris-
dictions, 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 Savan-
nah, along the northern branch or stream thereof, to the fork or con-
fluence 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 northern 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 Atlantic
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
438
APPENDIX-
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 never-
theless, That nothing herein contained shall be construed, so as to pre-
vent 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 Chatahoochee, on such terms as may be
beneficial to both parties; and may procure an extension of settle-
ment, and an extinguishment of Indian claims, in and to the vacant
territory of this state, to the east and north of the said river Chatahoo-
chee, to which territory such power or contract or sale, by the legis-
lature, shall not extend. And provided also, The legislature may give
its consent to the establishment of one or more governments westward
thereof; but monopolies 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, un-
less a county or counties shall have been first laid off, including such
territory, and the Indian rights shall have been extinguished thereto.
24. The foregoing section of this article having declared the com-
mon 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 purchases of
certain companies of a considerable portion thereof are become con-
stitutionally 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 provision by law, for re-
turning to any person or persons, who has or have bona fide deposited
monies for such purchases in the treasury of this state: Provided,
That the same shall not have been drawn therefrom in terms of
the act passed the thirteenth of February, one thousand seven hundred
and ninety-six, commonly called the rescinding act, or the appropria-
tion laws of the years one thousand seven hundred and ninety-six and
one thousand seven hundred and ninety-seven ; nor shall the monies,
paid for such purchases, ever be deemed a part of the funds of this
state, or be liable to appropriation as such; but until such monies be
drawn from the treasury, they shall be considered altogether at the
risque 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 appropriation made by law, and a regular statement and
account of the receipts and expenditures of all public monies, shall be
published from time to time. No vote, resolution, law, or order, shall
pass the general assembly, granting a donation or gratuity in favor of
any person whatever, but by the concurrence of two-thirds of the ge-
neral assembly.
APPENDIX.
439
$5. 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 enumeration of all
free white persons, and people of colour, residing therein, distinguish-
ing, in separate columns, the free white persons from persons of co-
lour, and return the same to the clerks of the superior 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 their 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 members of the house of
representatives among the several counties, agreeably to the plan pre-
scribed 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 sub-
sequent term of seven years, in conformity to this constitution. And
it is declared to be the«duty of all officers, civil and military, through-
out this state, to be aiding and assisting in the true and faithful exe-
cution thereof. In case the justices of the inferior courts should fail
to make such appointments, or if there should not be a sufficient num-
ber 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 census or enumeration of any
county shall not be so taken Nand returned, then, and in that case, the
general assembly shall apportion the representation of such county,
according to the best evidence in their power, relative to its popula-
tion.
ARTICLE II.
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 competent salary
established by law, which shall not be increased or diminished during
440
APPENDIX.
the period for which he shall have been elected, neither shall he re-
ceive, within that period, any other emolument from the United
States, or either of them, or from any foreign power.
2. The governor shall be elected by the general assembly, at their
second annual session after the rising of this convention, and at every
second annual session thereafter, on the second day after the two houses
shall be organized and competent to proceed to business.
3. 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 in-
habitant 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 esti-
mation, be competent to the discharge of his debts, over and above
that sum.
4. In case of the death, or resignation, or disability of the governor,
the president of the senate shall exercise the executive powers of
government, until such disability be removed, or until the next meet-
ing of the general assembly.
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 go-
vernor of the state of Georgia ; and will, to the best of my abilities,
preserve, protect, and defend the said state, and cause justice to be
executed in mercy therein, according to the constitution and laws
thereof.'*
6. He shall be commander m chief of the army and navy of this
state, and of the militia thereof.
7. He shall have power to grant reprieves for offences against the
state, except in cases of impeachment, and to grant pardons, or to re-
mit any part of a sentence, in all cases after conviction, except for
treason or murder, in which cases he may respite the execution, and
make report thereof to the next general assembly, by whom a pardon
may be granted. *
8. He shall issue writs of election to fill up all vacancies that hap-
pen in the senate or house of representatives, and shall have power
t » 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.
9. When any office shall become vacant by death, resignation, oi
otherwise, the governor shall have the power to fill such vacancy; and
\ ersons so appointed, sh£\lj continue in office until a successor is
APPENDIX.
441
appointed agreeably to the mode pointed out by this constitution, or by
the legislature.
10. He shall have the revision of all bills passed in 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 assembly, by their
adjournment, shall prevent its return.
11. Every vote, resolution, oi; order, to which the concurrence of
both houses may be necessary, except on a question of adjournment,
shall be presented to the governor, and before it shall take effect, be
approved by him, or, being disapproved, may be repassed by two-thirds
of both houses, according to the rules and limitations prescribed in
case of a bill.
12. There shall be a secretary of the state, a treasurer, and a 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 emolu-
ments as may be established by law, which shall not be increased or
diminished during the period for which they shall have been elected.
13. The great seal of the state shall be deposited in the office of
secretary of state, and shall not be affixed to any instrument 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.
14. The governor shall have power to appoint his own secretaries.
ARTICLE III.
1. The judicial powers of this state shall be vested in a superior
court, and in such inferior jurisdictions 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, removable by the governor
on the address of two-thirds of both houses for that purpose, or by
impeachment and conviction thereon. The superior court shall have
exclusive and final jurisdiction in all criminal cases,* which shall be
tried in the county wherein the crime was committed, and in all cases
respecting titles to land, which shall be tried in the county where the
land lies; and shall have power to correct errors in inferior judica-
Tories by writs of certiorari, as well as errors in the superior courts,
and to order new trials on proper and legal grounds. Provided, that
such new trials shall be determined, and such errors corrected, in tfie
* This section is amended. See second amendment.
3 K
442
APPENDIX.
superior court of the county in which such action originated. And the
said court shall also have appellate jurisdiction in such other cases as
the legislature may by law direct, which shall in no case tend to re
move the cause from the county in which the action originated; and
the judges thereof, in all cases of applications for new trials, or cor-
rection of errors, shall enter their opinions on the minutes of the
court. The inferior courts shall have cognizance of all other civil
cases, which shall be tried in the county wherein the defendant resides,
except in cases of joint obligors, residing in different counties, which
may be commenced in either county ; and a copy of the petition and
process served on the party or parties residing out of the county in
which the suit may be commenced, shall be deemed sufficient service,
under such rules and regulations as the legislature may direct; but
the legislature may, by law, to which two-thirds of each branch may
concur, give concurrent jurisdiction to the superior courts. The supe-
rior and inferior courts shall sit in each county twice in every year,
at such stated times as the legislature shall appoint.
2. The judges shall have salaries adequate to their services, establish-
ed by law, which shall not be increased or diminished during their
continuance in office; but shall not receive any other perquisites or
emoluments whatever, from parties or others, on account of any duty
required of them.
3. There shall be a states 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 di-
minished during their continuance in office.
4. Justices of the inferior courts shall be appointed by the general
assembly, and be commissioned by the governor, and shall hold their
commissions during good behaviour, or as long as they respectively
reside in the county for which they shall be appointed, unless re-
moved by sentence on impeachment, or by the governor, on the ad-
dress of two-thirds of each branch of the general assembly. They may
be compensated for their services in such manner as the legislature
may by law direct.
5. The justices of the peace shall be nominated by the inferior
courts of the several counties, and commissioned by the governor,
and there shall be two justices of the peace, in each captain's district,
either or both of whom shall have power to try all cases of a civil
nature, within their district; where the debt, or liquidated demand does
not exceed thirty dollars, in such manner as the legislature may by
APPENDIX.
443
law direct. They shall hold their appointments during good beha-
viour, or until 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 of
each branch of the legislature.
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 therein, 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 licences.
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.
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 legis-
lature 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.
9. Divorces shall not be granted by the legislature, until the par-
ties shall have had a fair trial before the superior court, and a verdict
shall have been obtained, authorising a divorce upon legal principles.
And in such cases, two-thirds of each branch of the legislature may
pass acts of divorce accordingly.
10. The clerks of the superior and inferior courts shall be appointed
in such manner as the legislature may by law direct, shall be com-
missioned by the governor, and shall continue in office during good
behaviour.*
11. Sheriffs shall be appointed in such manner as the general as-
sembly may by law direct, and shall hold their appointments for the
term of two years, unless sooner removed by sentence on impeach-
ment, or by the governor, on the address of two-thirds of the justices
of the inferior courts 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.
* This section is amended. See first amendment.
44-4
APPENDIX.
ARTICLE IV.
1. The electors of members of the general assembly shall be citi-
zens and inhabitants of this state, and shall have attained the age of
twenty-one years, and have paid all taxes which may have been re-
quired 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 inva-
sion, 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.
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 re-
presentatives 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 person or persons
elected. In all elections by the people, the electors shall vote viva
voce, until the legislature shall otherwise direct.
3. The general officers of the militia shall be elected by the general
assembly, and shall be commissioned by the governor. All other
officers of the militia shall be elected in such manner as the legisla-
ture may direct, and shall be commissioned by the governor 5 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 the general
assembly.
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.
5. Freedom of the press, and trial by jury, as heretofore used in
this state, shall ^remain inviolate; and no expost facto law shall be
passed.
6, No person, who heretofore hath been, or hereafter maybe, a col-
lector, or holder of public monies, 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.
7. The person of a debtor, where there is not a strong presumption
of fraud, shall not be detained in prison, after delivering bona fide all
APPENDIX.
445
his estate, real and personal, for the use of his creditors, in such man-
ner as shall be hereafter regulated by law.
8. Convictions on impeachments, which have heretofore taken place,
are hereby released, and persons lying under such convictions, restored
to citizenship.
9. The writ of habeas corpus shall not be suspended, unless when in
case of rebellion, or invasion, the public safety may require it.
10. No person within this state, shall, upon any pretence, be deprived
of the inestimable privilege of worshipping God, in a manner agree-
able 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 thq building or repairing
any place of worship, or for the maintenance of any minister or minis-
try, contrary to what he believes to be right, or hath voluntarily en-
gaged 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 prin-
ciples.
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 emancipation
of slaves, without the consent of each of their respective owners pre-
vious to such emancipation. They shall have no power to prevent
emigrants, from either of the United States to this state, from bring-
ing with them such persons as may be deemed slaves, by the laws of
any one of the United States.
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 white 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.,
13. The arts and sciences shall be promoted in one or more semi-
naries of learning, and the legislature shall, as soon as conveniently
may be, give such further donations and privileges, to those already
established, as may be necessary to secure the objects of their institu-
tion: and it shall be the duty of the general assembly at their next
session, to provide effectual measures for the improvement and perma-
nent security of the funds and endowments of such institutions.
14. All civil officers shall continue in the exercise of the duties
of their several offices, during the periods for which they were ap-
pointed, or until they shall be superceded by appointments made in
conformity to this constitution. And all laws now in force, shall
446
APPENDIX.
continue to operate, so far as they are compatible with this consti-
tution, until repealed ; and it shall be the duty of the general assem-
bly, to pass all necessary laws and regulations, for carrying this con-
stitution into full effect.
15. No part of this constitution shall be altered, unless a bill for
that purpose, specifying the alterations to be made, shall 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 pro-
posed, 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 respective 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 Geor-
gia, chosen, and authorised by them to revise, alter, or amend the
powers 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 independence
of the United States of America; and have caused the great seal of
the state to be affixed thereto.
Article 4th, section 11th, and first line, the following words being
interlined, to wit, « After the first day of October next."
JARED IRWIN, President,
and delegate from Washington.
Bryan.
.Joseph Clay,
J. B. Maxwell,
John Pray,
Bullock.
James Bird,
Andrew E. Wells,
Charles M'Call, jun.
Burke.
Benjamin Davis,
John Morrison,
John Milton.
Camdtn.
James Seagrove,
Thomas Stafford.
APPENDIX.
447
Chatham.
James Jackson,
James Jones,
George Jones.
Columbia.
James Simms,
Wa. Drane,
James M'Neal.
Effingham.
John King,
John London,
Thomas Polhill.
Elbert.
William Barnett,
R. Hunt,
Benjamin Mosely.
Franklin.
A. Franklin,
Robert Walters,
Thomas Gilbert.
Glynn.
John Burnett,
John Couper,
Thomas Spalding.
Greene.
G. W, Foster,
Jonas Fauche,
James Nisbett.
Hancock.
Charles Abercrombie,
Thomas Lamar,
Mat. Rabun.
Jefferson,
Peter I. Carnes,
William Fleming,
R. D. Gray.
Jackson.
George Wilson,
James Pittman,
Attest.
Joseph Humphries.
Liberty.
James Cochran,
James Powell,
James Dunwoody.
Lincoln.
Henry Ware,
Gibson Wooldridge,
Jared Groce.
MlIntosh.
John H. M'Intosh,
James Gignilliat.
Montgomery.
Benjamin Harrison,
John Watts,
John Jones.
Oglethorpe.
John Lumpkin,
Thomas Duke,
Burvvell Pope.
Richmond.
Robert Watkins,
Abraham Jones.
Scriven,
Lewis Lanier,
James H. Rutherford,
James Oliver.
Washington.
John Watts,
George Franklin.
Warren.
John Lawson,
Arthur Fort,
W. Stith, jun.
Wilkes.
Mat. Talbot,
Jesse Mercer,
Benj. Taliaferro.
Ja.mes M. Simmons, Secretary.
448
APPENDIX.
amendments to the constitution
OF THE
state of georgia.
(First amendment is of the 10th Sec. of the 3d Article.)
1 st. The clerks of the superior and inferior courts, shall be elected
on the same day, as pointed out by law, for the election of other coun-
ty officers.
(Second amendment is of the 1st Sec. of the 3d Article.)
2d. The judicial powers of this state, shall be vested in a superior,
inferior, and justices courts, and such other courts, as the legislature
shall from time to time ordain, and establish. The judges of the su-
perior 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 branch-
es of the general assembly for that purpose, or by impeachment, and
conviction thereon. The superior courts shall 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 vio-
lations 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 j and except in all other minor offences, commit-
ted 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 peni-
tentiary ; 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 legislature may hereafter, by law, direct,)
which shall be tried in the county where the crime was committed,
and in all cases, respecting tithes to lands, 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 judi-
catories, by writ of certiorari, as well as errors in the superior courts,
and order new trials, on proper and legal grounds.—Provided, that
APPENDIX.
4*9
stich 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 have appellate jurisdiction in such other cases as are,
or may be pointed 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 enter 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 to lands), which shall be tried in
the county where the defendant resides; and in cases of joint obligors
or joint promisors, residing in different counties, the same may be
brought in either county, and a copy of the petition and process served
on the party residing out of the county in which the suit may be com-
menced, shall be deemed sufficient service* under such rules and re-
gulations as the legislature have, or may direct. The superior and
inferior courts shall sit in each county twice in every year, at such
stated times as have, or may be appointed by the legislature.—Acts of
1817 and 1818, pa. 213.
(Third Amendment is of the 4th and 5th Sec. of the 3d Art.)
3. The justices of the inferior courts shall be elected on the third
Tuesday in October, eighteen hundred and thirteen, and on the third
Tuesday in October in every fourth year thereafter, by the electors
entitled to vote for members of the general assembly, which election
shall be held and conducted in the same manner as pointed out by
law for the elections of clerks and sheriffs, and the persons so elected,
shall be commissioned by the governor, and continue in office for the
term of four years, unless removed by impeachment for mal-practice
in office, or by the governor on the address of two-thirds of both
branches of. the general assembly; they may be compensated for their
services in such manner as the legislature by law direct; and there
shall be five justices for each county, who shall hold their offices until
their successors are elected and qualified, and when any vacancy shall
happen by death, resignation, or otherwise, of any justice of the infe-
rior court, it shall be the duty of two or more of the justices of the
inferior court, or justices of the peace, to give at least twenty days
notice by advertisement at three of the most public places in the
county, previous to the election to fill such vacancy, which election
shall be held in the same manner as is by this section before ex-
pressed.
There shall be two justices of the peace in each captain's district
in the several counties of this state, either or both of whom shall have
power to try all cases of a civil nature within their district, where the
3 L
450
APPENDIX.
debt or liquidated demand does not exceed thirty dollars, in such
»manner as the legislature may by Iayv direct; they shall be elected on
the first Saturday in January, eighteen hundred and thirteen, and on
the first Saturday in January in 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 election shall be
superintended by three freeholders of the district, whose duty it shall
be to take the following oath, to be administered by the captain or
commanding officer of sajd district, to wit:—" I, 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 they
shall transmit a return of said election within twenty days to his ex-
cellency the governor, who is hereby authorised to commission the
persons so elected accordingly; and they shall hold their appointments
during the term of four years, and until their successors are elected
and qualified, unless they shall be removed by conviction on indict-
ment in the superior court for mal-practice in office, or for any felo-
nious crime, or by the governor on the address of two-thirds of each
branch of the legislature. And when any vacancy shall happen by
death, resignation, or otherwise, of any justice of the peace between
the time of such election, and the expiration of the time for which
such justice or justices were elected, it shall be the duty of two of the
justices of the peace in any of the adjoining districts where such va-
cancy or vacancies may happen, to advertise in three of 'the most
public places in the district where such vacancy or vacancies may
happen, the time of holding an election for the purpose of filling such
vacancy or vacancies, and give at least fifteen days notice of the time
and place where such election shall be held, which shall be in the
district where such vacancy or vacancies shall have happened, and it
shall be the duty of the said justices to superintend such election,
and certify the same under their hands to his excellency the governor,
who shall, within ten days after receiving the same, commission the
persons having the highest number of votes, provided, the same is not
contested.—See acts of 1811 and 1812.
The above amendment has been found to be attended with some
difficulty, in consequence of having prescribed the mode of the elec-
tion of officers to which it refers, thereby subjecting the alteration ol
that mode to all the tedious forms of altering the constitution. The
main object of the amendment was to make the said officers elective
by the people, bgt as«to the mode of electing them it seems it is ex-
pedicnt that the legislature should be vested with the power of pre-
scribing it—to that end the legislature at their session of 1818 has
passed the following law amending the said 3d amendment of the
APPENDIX,
451
constitution, and, when passed at the ensuing session, which will no
doubt take place, the foregoing amendment will be repealed, and the
following will be in lieu thereof—to wit,
" The justices of the inferior court shall be elected by the persons
entitled to vote for members of the legislature in such manner as the
legislature may by law direct."
" 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 regula-
tions as the legislature may by law direct." Acts of 1818, pa. 100.
(Fourth Amendment is of the 4th Sec. of the 2d Art.)
4th. In case of the death, resignation, or disability of the governor,
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 a governor
by the general assembly ; and in Case of the death, resignation, or dis-
ability of the president of the senate, or of 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 elec-
tion and qualification of a governor by the general assembly.—Acts of
1817 and 1818.
Note.—An amendment of the 7th section of the 1st article of the
constitution, relative to the apportionment of the representatives of
the general assembly, is proposed by an act passed the 19th Decern-
ber, 1818, but as it must pass by another session of the legislature, it
is deemed not proper to insert it here, until such last passage shall
have taken place.
SUBSCRIBERS' NAMES.
BALDWIN COUNTY.
His Ex'y Wm. Rabi
Francis Smith
Samuel Rockwell
Seaborn Jones
Alexander Greene
Simon Whitaker
Thomas Trapp
James Rousseau
Samuel Goodall
Thomas H. Kenan
Farish Carter
John Lucas
George Lewis
Wm. Grigg
Wm. Bivins
Fielding Ellis
Gustavus Hendrick
P. F. Jaillet
John Barnard
Spencer Moore
Joel Crawford
Wm. Mainer
Thompson Bird
Amos Young
Henry Dennison
T. Fort
B. Gachet
Daniel Sturges
Goodwin Myrick
E. Wood
Geo. R. Clayton
Frederick Sanford
S. Boykin
A. Torrance
Abner Locke
John Scott
H. L. Jones
Williams Rutherford
Edward Carey
James Bozeman
Joseph Collins
Robert Rutherford
Edwin Whitaker
John Bozeman
Francis Peter
Francis Mercier
James Fleming
Richard Morgan
James Barrow
Esom D. Franklin
J. T. Cushing
Lucius Q. C. Lamar
John Lewis
James P. Dozier
John H. Wright
ElbertCalhoun
John B. Hines
Executive of Georgia
J. Groves
Richard W. Ellis
Allen J. Nicholls
Octavius Spencer
Wm. M'Kinney
James A. Perdue
Wm. Davis
Elisha Moreland
M. W. Perry
Evans Long
Wm. Sentell
Caleb Etheridge
Cannon P. Rogers
Charles Smith
Archer Worsham, jun.
John H. Smith
Henry Worsham
Thomas Woodward
John Watson
Thomas Moughon
John J. Owens
Maurice Moore
James C. Humphries
Robert G. Crittenden
B. Jenkins
Hiram Perry
BURKE COUNTY.
Wm. Bonnell
Arthur Bell
John Royal
Benjamin Bell
Thomas Scarborougl
C. R. Nessmith
Seaborn L. Royal
Stephen Miller
Moses Mulkey
Elijah Powell
Wm. Gordon
James Salisbury
Wm. Godbee
Jacob Elliston
Wm. Hillis
James Brown
Robert Fryer
Evans & Brigham
F. J. Burns
S. W. Blount
James Anderson
Beverly Randolph
A. P. S. Ellis
Thomas Burke
S. W. Jones
Peter Lequeux
Josiah Lewis
Charles Reteney
S. Harlow
John Bell
Joseph Attaway
Joab Rowell
James Welch
J. B. Hardin
James Whitehead
J. E. Plummer
454
SUBSCRIBERS' NAMES.
Isaac Farmer
Samuel Davis
S. H. Jones
W. W. Davies
Jesse T. Carpenter
N. Pemberton
Owen Tomlin
H. W. Sillaven
John Killpatrick
Zach. L. Fryer
J. W. Jones
Josiah Mathews
Branch W. Miller
Samuel Sturges
Wm. Barron
Jonathan Lewis
James Jackson
Thomas Forth
Samuel Garlick
Abishur Scruggs
Wilson Navey
W. B. Douglass
John Whitehead, sen.
Wm. De Wolfe
Joel L. Forth
Alexander Crozier
John M. Lambert
CHATHAM COUNTY. Andrew G. Semme*
Edward F. Tatnall
J. Cuyler, Savannah, 4 Elias Reed
copies
Wm. Harrison, do. 2 CLARKE COUNTY,
do.
Alexr. Hunter, do. 2
do.
M. J. Kappell & Co.
do. 12 do.
Adam Cope
M. Sheftall, sen.
Th. Edwd. Lloyd
R. P. Cuyler
S. C. Doolittle
Thomas Mitchell
S. Brown
James Scott
Thomas Moore
Norris Hendon
R. J. Cabell
Ransom Twcholls
Richd. W. Habersham Aaron Boggs
M. Myers
W. M. Kelley
John Drysdale
John Haupt
Henry I. Vallean
R. T. Williams
Samuel M. Bond
James Morrison
Isaac Russell
Charles Stevens
John C. Nicoll
Wm. C. Barton
Augustus H.Anderson John Delberghe
J. E. Morris
Wm. Key
Hardin Brack
H. P. Jones
Simeon Lowry
Nathan Vickers
Peter J. Goulding
Batt. Jones
I. Wallace
Solomon Wilson
Sherwood Lewis
Joel Yarbrough
Joseph Davis
Samuel Parish
Thomas Jones
John Truswell
Wm. Burrtell
Isaac Welch
William A. Moore
George L. Cope
Benjamin Sheftall
Hugh M'Call
Elias Fort
E. S. Rees
Levi S» Delyon
B. Dobbins
Job T. Bolles
John F. Lloyd
W. W. Black
F. S. Fell
Wm. W. Gordon
Jos. S. Pelot
W. C. Daniel
Lac. H. M'Intosh
J. Marshall
Wm. Craig
Francis M. Stone
Asahu Howe
John H. Ash
CAMDEN COUNTY.
/
Wm. Gibson, St. Ma- James Eppinger
rys, 12 copies John Lillibridge
James Sansom
Win. L. Parr
Wm Mitchell
P. Rogers
Samuel Heald
Peter Puryear
A. C. Atkinson
Edward Payne
James Meriwether
Edward Wamock
John R Guiding
Trustees of University
Zach. Simrns
John Parker
Isaiah Daniel
David Stephens
Jeremiah Burnitt
Joseph Hodges
Milner Echols
Fryar Robertson
James Langford
West Parker
COLUMBIA COUNTY.
John Foster
John Germany
Arthur Foster
Anderson H. Maway
C. Short
Wm. Magruder
James Burroughs
W. L. Kennon
John Dunn
Archer Avery
Jared Pounds
SUBSCRIBERS* NAMES.
455
Barnett Peter
John Childers
Beverly Allen
Dionysius Oliver, jun.
Abraham Naich
R. C. Beck
Wm. Allen
S. W. Allen
Woodley & Bell
James Morrison
Robert H. Watkins
Andrew Rembert
Henry G. Walker
Robert S. Sayre
M. T. Anthony
Wm. B Herring
John Moss, jr.
John Pope
Armistead E. Stokes
Anthony Stribling
Thomas W. Williams
Simeon Oliver
John Landrum
S. R. Beaman
Jas. Lesueur
Micajah Anthony
John D. Orerstreet
A. M. Stokes
Thos. C. Russell, sen.
John D. Stroud
EMANUEL COUNTY.
Mathew M. Carter
Thompson Moore
Asa Allen
Seth Strange
Edward W. Mayfield
Samuel Shannon
John Mayes
Gabl. Martin
Alexander F. Ash
John Chalmers
Tignal Jones
Joel Hunt
Caleb Garrison
John Boswell
Wm. Chalmers
Hudson Moss
Robert Burton
Thomas Flannaginn
Joseph Lewelling
Wm. Mize
George W. O'Kelly
Thomas F. Anderson
Benjamin Cleveland
Fleming F. Adrian
Wm. Turk
Joseph Morris
John Trigg
Wm. Brown
Charles Cawthon
Joshua Hudson
Wm. Fleming
Ephraim Brown
Benjamin Martin
Richard Skinner
Thomas Ball
Edmund, Ruberts
Harvvood Roberts
Jonn S. Beadle
Thomas Howard
Augustus Beall
Raymond Burroughs
Stephen Hoge
Z. Magruder
John Megahee
John Oliver
John Watson.
Robert Jones
Jos W Carmichael
Zach. Williams
Hez. Magruder
John Pearre
Gazarway Davis
Morgan Malone
John Reeves, sen.
Wm. Barden
Wm. Drane
Walter A. Appling
Richard Fletcher
Harmong Lamar
B. M. Sanders
Archibald Heggee
Edward Hassell
Williams F. Jackson
M. Robertson
Leo. Thompson
Elias Wellborn
Moses Butts
Wm. Kennon
Isaac Ramsay
John Pittman
Yames Yarbrough
Nathaniel Hicks
Micajah Bond
ELBERT COUNTY.
David Barron
Wm. Dunlap
Asa Thompson
Philip H. Alston
Wells Thompson
James F. Nunnelee
Try on Harris
James Clarke
Wm. F. Christian
E. H. Callaway
FRANKLIN COUNTY-
Presley Christian
Beverly Greenwood
David Crews
W. B. Wofford
Jesse B Hansford
John Bush
J. T. Hammond
Sterling Harris
Henry Mann
Elisha Cook
James Gober
James Gilbert
Zach. Chandler
Wm. Sewell
Wm. Thomason
Richard C. Bond
GREENE COUNTY.
Malichi Murden
John G. Roberts
James Daniel, jun.
John G. Andrews
George Owen
Wm. Robertson
Radford Gathin
Richard Asbury
John1 Evans
Robert Moore
Reuben Smith
Reuben White
Stephen Hightower
Wm. Copelon
Samuel Winslett
James S. Ward
Frederick Johnson
Thomas Riley
456
SUBSCRIBERS' NAMES.
Joshua Cook
John Shockley
D. & B. Sanford
Wm. Winfield
Josiah Rogers
Caleb Talley
Nicholas Howard
Henry Rogers
Wm. Armor
Seaborn Laurence
Gilley Moore
Ambrose Hutchinson
David Parker
John Turner
John Browning
Wm. H. Price
Lewis Jenkins
George Tuggle
Wm. Browning
A. Heard
E. W. Runner
Wm. Redd
P. J. Watson
Thomas Johnson
Robert Booth
Oliver Porter
S. Daniel
A. B..Linton
James Bledsoe
Abraham Yeats
Jer. Ragan
Samuel H. Nelms
John Mercer
Ross Conyers
Wm. H. Clay
HALL COUNTY.
Thomas Williams
Job Smith
Thomas Barren
Robert Young
And. Collins
James Cleghorn
John M. Connell, jun.
Ephraim Brown
Martin Rolb
HANCOCK COUNTY.
Nicholas Lanier
Gideon Hoisey
John M. Saunders
Thomas F. Wells
John W. Scott
Thomas Lundy
Robert B. Glenn
James Daniel, sen,
Charles Caton Haynes John Todd
Edward B. Brooking J. Liddell
John Moore
Wiley Garrard
Joseph Wharton
Wm. Phinizy
Elijah Roberts
John Collins
John T. Macon
James Hall
Wm. Hard wick
John B. Simmons
Epps Brown
Jesse H. Veasy
Levin Turner
David Kindall
Lewis Atkinson
Michael Graybill
Wm. Hall
John Bynam
John Dudley
Richard Fears
Benjamin Jordan
Collin Rogers
Wm. C. Barksdale
Lewis Tyus, jun.
James C. Adams
John Bird
James Fears
Richard Winn
John Rogers
Wm. S. Crane
Joseph C. Depriest
Samuel Pruit
Wm. Luckie
John G. Pittman
Allen Mathews
Josiah Hickman
David Castleberry
David Boung
Elisha Winn
Richard Dickson
John M'Donnell, jun,
Stephen Borders
Wm. Bell
John Borders
Thomas C. Barron
Wm. H. Dickson
Francis Meriwether
David Rogers
Thomas Haynes, jun. James Wordlaw
George Hames James M. Norman
Thomas Qlayton, jun. Wilson Strickland
3 copies
Benjamin Hall
Philip Turner
Burwell J. Winn
Duke Hamilton
Henry Champion
James Mitchell
Samuel D. Reid
Simmons Butts
Thomas Flake
Peterson Harris
Robert Lucas
JASPER COUNTY.
Bennett Crawford
Martin Cochran
J. W. P. Holmes
Peter Johnson
John W. Burney
Owen H. Kenan
Henry O'Neal
George Stovall
John Willson
Wm. M. Cain
JACKSON COUNTY. Allen M'Lendon
John Paine
James S. Witherspoon Joseph Buchannon
Levi Lowry Frederick Baldwin
Benjamin Wharton Benjamin C.Edmonson
John Young Spencer Grain
Wra. Cobb Wm. II, Myles
SUBSCRIBERS* NAMES.
\Vm. Cook
Luke Williams
Jos. J. Williams
John Rivers
John Heard
John Pinckard, jun.
Devenport Greaves
Wilie M'Clendon
Jarrel Beasley
Henry Slappey
J. M'Clendon
Wm. Barcklay
Asa Ragan
James Wilkinson
John M'Michael
Martin Murphy
Robert Shearman
John Bean
Jesse James
James Phillips
Howell Alsebrook
Henry Pope
James Anthony
E. L. Washburn
W- B. Heeth
Charles Womack
Wm. Ragland
John Hill
John S. D. Byrom
Hardy Hopson
Thomas E. Rodgers
Zach. Buis
George Alexander
Young Thornton
Robert E. Richardson
Tandy W. King
A. L. Early
Wm. Grain
Wm. Wells
Levi Martin
JEFFERSON CO.
Wm. Powell
John Peel
Richard Peel
James Spann
Forester Little
George G. Brown
Gray Cumings
John Jordan
Jona. Robeson
John Whigham
Lewis Lamp
Wm. Hadden
James Williams
Daniel M'Niel
Thomas M'Kigney
Wm. Hayles
John Bostick, jun.
Samuel Brown
Shadrack Stevens
Joshua Dasher
M. Newton
Ab. Pryor
Benjamin Bryan
Thomas Street
George W. Wheeler
Isaac Brinson
Matthew Robertson
David Lewis
JONES COUNTY.
Daniel Gafford
John Eanes
Grant Gafford
Thomas House
Wm. Smith
Joseph Davie
Joseph Bonner
Jason Gardner
Arch. M. Harrist
Jesse Cox
J. C. B. Mitchell
John Humphries
John Dennis
Jos. Riley
Septimus Weatherby
Stephen Gafford, sen.
Asia Speights
John Rushin, jun.
John Baker
Moses Taylor
Thomas Davis
John B. Heeth
Joseph Reese
Gideon Mathis
Willis Douglass
New day gate Ousley
John D. Caton
Benjamin Stewart
Moses Gunn
John Evans
3 M
Wm. Davis
James Huff
James Blount
Anderson Comer
Hardy Herbert
Stephen Ventress
James Lamar
Peter Wyche
Job Taylor
J W. Hansford
Samuel Bond
Thomas Dunbar
Leo. Burford
Allen Greene
Edward Oxford
George Ross
Charles P Hansford
J, S. Zachry
Luke Bonds
Pitt Milner
W. W Hansford
Daniel Melson
Alexander Bryant
Wm. Sims
John H. Milner
Jeremiah Lamar
Zach. Booth, sen.
Joseph Slaton
Zach. Booth, jun.
Mordecai Jacobs
Wm. J. Middlebrooks
John W. Jarvis
D. M'Duffee
Samuel Horton
Thomas Spencer
Reuben Slaughter
James Stallings
Wm. Lockhart
Wm. Y. Fannin
Wm. Cotten
James Sockwell
James Kelly
Silas Downes
Edward Weaver
Robert Caruthers
Wilkins Jackson
Ezekiel F. Smith
Wm. Jackson
Wm. Blount, sen.
Robert Baldwin
Bajamin Milner
Alexander Oden
458
SUBSCRIBERS' NAMES.
James Norris
John Blount
John Rose
Win. Perry
Joseph Fergerson
Wm. Langham
Adam Carson
PI. B. Cabiniss
B. B. Lamar
Nathan Renfroe
Thomas A. Pratt
Wm. Harris
John Scott
• Edward Bass
James Mason
John R. Moore
Thomas Baldwin
John E. Lester
Roger MkCarthy
Benjamin May
John Lewis
Pierce A. Lewis
John King
Green Whatley
Charles Bayue
Patrick M. Calhoun
John Bedell
James Gates
Kinctien P. Thweatt
James Thcwatt
Ebenezer H. Moore
D. S Milling
Plenry Marsh
Wm. Flewellen
Collin Pope
Wm. Snellings
Wm. Cabaniss
Jesse M'Kinne Pope
Henry Hooten
Thomas Floyd
Robert IPutchings
Charles J. M{Donald
Charles Gachet
James Wadsworth
Hinchea B. Pettwuy
LAURENS COUNTY.
Jer. Brown, 2 crpies
Henry Pitts
John Thomas
Daniel Ilill
Reuben Smithwick
James Beaty
John Collier
Joel Williams
Adam Jones
Archibald Griffin
Jacob Robinson
Thomas Hughes
John Thomas
Robert Coates
M. T. Oliver
Thomas Mathews
Neill Munroe
George Linder
John Guy ton
John N. Martin
Lott Warren
Simeon Woodson
'David M'Daniel
Eli Ballard
E. Allen
Elijah Blackshear
Anderson Hunt
Abraham Faucet
Wiley Hibson
John M\Bane
Conrad Augley
Amos Love
W. R. Coleman
Jona. Parker
Alfred Thompson
Levi Glass
B. M'Cullers
Wm. A. UndemVood
Lunsford C. Pitts
Wm. Momon
Charles H. Momon
Turner Mason
George W. \\ elsh
Isaac Benton
Josiah Home
Solomon Jones
Robert Northcutt
Sion Smith
Winfield Wright
Andrew Hampton
Daniel O'Neal
Hugh Thomas
Elias Aycock
Joseph Guyton
Burwell Philips
Thomas Hughes
Young Johnson
LIBERTY COUNTY.
Samuel Harville
George Kershaw
James Smylie, jun.
Wm. Womack
John M'Cranie
Charles Flours
John E. Frazer
John W. Gibson
Wm. Barber
Simeon A. Fraser
Mathew Jones
Wm. Whiddon
Wm. Johnson
Daniel M. Stewart
LINCOLN COUNTY.
Arnold Zellner
Wm. Covington
Jameson Mabry
MADISON COUNTY.*
Edward Ware, jun.
Robert Groves
Joseph Vinson
Thomas J. Gregory
John Richardson
Stephen Smith
Burrel Orr
Samuel Groves
Dabney Gholston
George Jarrell
Robert Kennedy
James Thompson
Charles J. Jenkins
Allen Daniel
Joel Freeman
Robert L. Tait
Grant R. Taylor
James Sanders
John Cleghorn
James Eberhart
Edward L. Christian
Dickinson Lumkin
Charles Polk
Adam Cox
John Colley
Wm. L. Giifiith
SUBSCRIBERS' NAMES.
459
Dabney P. Jones
James Long
M'INTOSH COUNTY.
James Pelot
A. B. Powell
W. R. M'Intosh
W. A. M'Intosh
Geo. Atkinson
A. Lefils
James Dunwoody
M'Queen M'Intosh
J. M'Intosh
Francis Hopkins
Jonathan Thomas
Charles M. Cooper
Jacob Wood
Scott Cray
Wm. A. Dunham
Resolved White
M'Intyre & Millen, 2
John Orme
MORGAN COUNTY.
Stephen Hackney
Robert Grier
Geo. N. Langford
John Jackson
And. Patrick
John Akins
J. H. Barnes
Wm. Pace
F. Heard
Jesse Thomas
Ludwell Watts
John Burney
Zach. Fears
Wm. B. Gregory
Anthony Cozart
Pleasant Bowdin
Drury Bradley
Benjamin Vining
Thomas 8. Bonner
Silt. Robinson
T. H. Sharp
Wm. Patrick
Benj. Scott
Henry Langford
Robert Corry, jr.
John Watts
Edward Malone
Robert Patrick
Job Bird
John Howard
Littleberry Watts
John G. Colbert
Roderick Leonard
Pleasant Watts
Joseph Moton
Samuel Richardson
Larkin Clark
Wm. P. Henry
Joshua Patrick
Joseph Heard
Zachariah Bailey
Ephraim Heard
Benson Henry
John Gill
ThoS. Watts
Joseph P. Duke
James Wyatt
John E. Burges
Ezekiel Strickland
James Hitchcock
Wm. W. Carlisle
Thos. Wyatt
James Micklcroy
Azariuh Bailey
John Davidson
Reuben Jackson
James Ware, jr.
Robert Pearman
Reuben Mann
D. W. Porter
Charles Mathews
Isaac Walker
Wm. Buford
Jesse Roberts
Joshua Eckles
Edmond Walker
Walter Taylor
Joseph Morrow
Joshua Boon
James B. Cain
Charles Kennon
Jesse Johnson
Thos. B. Green
Sterling Finnie
Van Leonard
Willis Randle
James Blasingame
Warren Jourdan
James/W. Cooper
Jesse Clower
Thos. Kennon
Benj. S. Ogletree
Joseph Lane
Jeremiah Davis
Arden Evans
Benjamin Brown
Nathan Hackney
Jehu Peoples
Wm. Beasley
Eldridge Butts
Abijah Timmons
Samuel S. Simmons
Coleman M. Roberts
Benj. Cannafax
Purnal Truitt
Aquilla Chaney
Robt. Applewhite
Wm. S. Goss
Ezekiel S. Loyd
Wm. Bandy
Arch. Ritchie
James Haygood
Dru'ry Brewer
Henry Sharp
Johnson Fergason
John Ray, sen.
JohnAVhitaker, jr.
Wm. Evans
Levi Benson
Saunders Williams
Daniel Duncan
John T. Duke
Leo. Carden
Jesse Dennis
Richard Wade
Sterling L. Prichard
B. M. Ware
John Peel
OGLETHORPE CO.
Chesley Arnold
Hezekiah Luckie
Henry Heartsfield
J. Davenport
Robert Colquett
Burwell Pope
Joseph M. Molloy
Wiley Claudis
Wm. W. Baldwin
John Kid
460
SUBSCRIBERS' NAMES.
Chas. B. Lee
James Hartsfielil
Daniel Dupree
Abraham Hill, jr.
Nath. Smith, jr.
James Jordan
Anthony Martin
James Luckie
John Birdsong, sen.
Edmond Jordan
Thomas S. Bailey
Frederick Smith
James MkElroy
George R. Gilmer
John Moore
Wra. S. Stokes
W. W. Arnold
Sherod Rowland
Wm, M'Elroy
Benj. Blake
Joseph D. Arnold
Josiah Jourdan, jr.
Thos. Reece
John Arnold, sen.
James C. Holmes
Davis Owen
J. Goolsby
John Thornton
Reuben Jordan
Solomon Jennings
Samuel Hamner
Lewis I. Dupree
Thomas Stephens
PULASKI COUNTY.
Jordan Anderson
James Roach
Moses Wilson
Henry Senterfit
Joel Reeves
Allen Scarborough
James Burnham
Thomas Howell
Thes. Sutton
Thou as Johnson
Edward Blf kshear
Furncy F Gatlin
Sanders Coalson
D. Jones
.Benj. Hodges
James Robuck
Hardy Powers
Thos. M'Griff
Willis Reeves
James Phillips
Mathew Exunv
Sterling Tooke
R. W W.Wynne
O. D. Watson
Jos. B. Coalson
Wm. Hall
Benj. S. Lanier
N. Stevens
T. I. Johnson
Jno. M'Rae
Josiah Everitt
Allen Tooke
Lewis Yarbrough
Richard H. Thomas
Daniel Cornwall
Gray B. Gardner
Thos. M. Golightly
James Powell
Samuel B. Ewing
Robt. Thompson
Wright Lancaster
Bolin Swearingen
Samuel Robinson
Joseph Wood
David Garlman
Washington Lancaster
Martin Wood
James Macbeth
Wm. Hilliard
Zeler Pullum
James Hayes
Edward Bryan
Wm. Mathews
A don Scarborough
Alex. Simpson
L. Perkins
John Turner
Patrick M'Griff
Nathan Maddox
Wm. Ropers
Jona Walker
Edw. Giddeons
S. Sutton
Nathaniel Mercer
Ivinchen Dawson
Isaac Nichols
Chappel Bond
Murdock M'Leod
PUTNAM COUNTY.
Lochlin Johnson
David B. Perryman
Frederick Ward
Wyatt Whatley
Reuben Weaver
Thos. Lane
Wm. Henderson
Samuel Weaver
Wm. Norman
James Lane
David L. White
Price Bird
Nicholas Tompkins
George Johnson
Wm. Pace
E. Reid, 7 copies
Zeno Weddington
Moses Eakin
Hardy Gregory
Thos. Dent
Lewis Moseley
Elijah Moseley
Abner Wells
Jesse Little
Jos. J. Burt
Allen W. Coleman
Lewellen W. Hudson
Jacob More man
Wm. Walker, sen.
James Hayes
Richard Pace
Geo. Slaughter
Jesse Keeton
Anthony Holloway
John Cooper
Abm. Wallace
Benj. Williamson
John J. Smith
Arch. M'Koy
Richard Pace
Philip Ballard
James Walker
James M. Dunn
T. B. Rees
Edward H. Evans
Robert L. Perryman
Francis Ward
A. M'Coy
Jno. A. Cuthbert
SUBSCRIBERS' NAMES.
461
Singleton Holt
Septimus Weatherby
Joseph Wilson
Wm. Flournoy
Wm. Turner
Shurley Sledge
Thos. Davis
Newjon Cooper
Nich. Stinson, sen.
Joel Hurt
John H. Bass
Robert Jackson
Rowe Harris
Jethrew Jackson
Edmond S. Harris
David Rosser
M. Cooper
Edm. Jeter
Henry Dixon
Jesse Little
Henry Porch
Wm. T. Harper
RICHiyiOND CO.
J. Cumming, Augusta
Joseph Grant do.
Jno. Carmichael do.
Jno. G. Cowling do
• J. G. M'Whorter do.
David M'Kinney do.
Augustin Slaughter do.
Jno. H. Mann do.
A. H. Sneed do.
John Clarke do.
A. M'Kenzie do.
Wm. H. Torrance do.
D. Macmurphy do.
John Cashin do
Thomas Grace do.
Joseph Gray do.
James Gardner do.
James B. Robinson do.
J. B. Collier do.
A. Bugg do.
John Carter do.
Dread Pace do.
John Watkins do.
Key & Olephant do.
John Howard do.
Andrew Fagan do.
J. Sc S. Pope do.
B. H. Meigs, Augusta
Valentine Walker do.
E. K. Campbell do.
P. L. Cantelou do.
Wm. B. M'Gehee do.
James M'La,ws do.
H. M. Fendall do.
I. S. Beers do.
James Bilbo do.
Thomas Dwight . do.
D. Meigs do.
Penn & Jackson do.
Woolfolk Sc Dearmond
do.
John Will son do.
John Hayles do.
Lindsay Coleman do.
Lewis Harris do.
Patrick H. Carnes do.
Walter Leigh
A. Rhodes jun.
John Turpin
John A. Barnes ,
William Y. Hansell
SCRIVEN COUNTY.
Hardy Scarborough
Joshua Pearce
TELFAIR COUNTY.
Jno Fletcher, sen.
Wm. Harris
Jno. Marshall
N. Parramore
Ludd Holley
Wm. Williams
Cornelius R. Ashley
John Coffee
Jacob Cravey
Nathl. Ashley
James Williams
Alexander Powell
Abraham F. Powell
Isaiah D. Hart
Thomas S. Swain
John Sikes
Gibson Clark
Alexander M'Rae
Randal M'Donald
TWIGGS COUNTY.
Reuben Anderson
Levi Mathis •
Alexander Nelsoft
Moses Fillinginn
Joseph C. Kean
Wm. Simmons
Charnick A. Tharp
Leo. Sims
James Patton
Wilson Collins
George Jameson
John Davis
Robert Richards
Benjamin Feagin
John Keener
John Wood
James Gorman
Harman Perryman
David Jameson
Benj. B. Smith
James Smith
Arthur C. Perry
John H. Gilmore
Wiley Belsher
Henry Johnson
Nathan Bozeman
Robert Cummins
Josiah Homes
Little B. Bostick
Littleton Belcher
Abraham Zuber
Philip Cook
Colin Sledge
Simon Taylor
A. Summers
Seaborn Mims
I. K. Wall
Robert Peacock
Moses Wheat
James Ware
James M'Kemie
Moses Moore
Benjamin Harvey
Joel Chivers
Samuel Williams
Wm. Hamilton
Henry Bunn
Lovet B. Smith
Henry Mathews
Robert Glenn
462
SUBSCRIBERS' NAMES.
James Powers
Elbert Davis 1
Meiton Gathright
Robert Belsher
Simon Bateman
Wm. Smith, 2 copies
Samuel Stephens
David W. Mann
Stephen Carter
Charles Sutton
Daniel W. Shine
Henry Jameson
John Heninton
Joab Tison
James Bryan
Samuel Richmond
Wm. W. Williamson
Ferrell Belsher
Dennis D. Sanders
Archd. M'Intyre
Thornton Perry
Solomon Simpson
Benjamin Joyner
V. A. Tharp
Reddin Rutland
Asa Smith
Jehu Campbell
Joseph M'K-inney
John Tyler
Mark Hardin
Thomas Home
James W. Moore
Reuben Wilkes
Jacob Bull
James Hutchinson
Peter Bailey
James Buckelow
David Young
Isaac Lindsay
Wm. Scott sen.
James Gibson
John Gould
William Hunt jun.
Whitmil Rutland
William Buckelow
Hiram Ball
Jeremiah Averett
Moses Fort
Ezekiel Wimberly
James Shackleibrd
WARREN COUNTY.
James Pace
Wm. H. Blount
William A. Fuller
I. Beall
Nathan Harris
James Gray
Jer. Burkhalter
Thomas Battle
Elisha Burson
Alexander Avera
James Isdale
William Wilder
James Loyless
Shadrack Flewellen
Isaac Ball
Nathaniel Hutchinson
John Powell
John Thigpen
Benj. Culpeper
Geo. W. Hardwich
Peyton Baker
Thomas Maddox
George Turner
John C. Turner
M. Champion
Henry Pool
Benjamin Sandeford
Hardy Pitts
David Brown
James M'Cormick
James Cody jun.
Barnett Cody
Henry Hight
Thomas Gibson
WASHINGTON CO.
Thomas Pace
John Bailey
Metcalf Fisher
Henry Cason
John G. Robison
William Clay
B. Fluker
Joel Dean
John L. Irwin
Thomas Neely jun.
Stephen Daniel
Isaac [Taylor
Zach. Albritton
James Hardin
John Hardin
Thomas Glenn
Joseph Herndon
William Betsill
W. A. Young
Bryant Pace
A. G. C. Mitchell
Henry Partridge
Jesse Prosser, 2 copies
WAYNE COUNTY.
John Brown
WILKES COUNTY.
Thomas Muncrief
Richardson Booker
Richd. I. Holliday
Daniel Mabry
Hosey W. C. Clarke
Marbry Steede
Samuel Arnet
Allen Halliday
John Thornton
Samuel Paschall
William Thornton
John Webster
Talbot Jones
James Anderson
Isaiah Paschall
James MTntosh
Joseph Cooper
Elijah Sherer
Shelton Wellborn
Abner Wellborn
Silas Catchings
Isaiah JPaschall
Milton Gartrell
Samuel Brooks
John M. Quinn
Reuben Hudgins
Marbury Steed
J. W. Freeman
William SafFold
John Nickels
Richard I. Willis
James Mathews
H. H. Tarver
SUBSCRIBERS' NAMES.
463
Ignatius Semnies
Richard Tarver
S. W. Smith
S. Willis
W. B, Booker
Michael Pearson
Robert Grier
John Butler
Thomas Berry
Thomas Wing field
Robert Chine
Elisha Moore
Daniel Owen
J. H. Marler
John Bull
William Mattox
Charles C. Mills
W. S. Taylor
James Chivers
James D. Gresham
Allen I. Arnold, 2 <
Henry Dawson
Richard Hudspeth
Thos. M'Laughlin
John Milner
Josiah B. Holmes
James D. Willis
Geo. W. Johnson
Richard Hingson
Enoch Callaway
John B. Milner
Joel Hood
Isaac Callaway jun.
Leroy Sale
Geo. W. Hamel
Isaiah T. Irvin
Isaac Callaway sen.
William Johnson
Geo. W. Dodson
Isaac N. Mathews
Abraham M. Mathews
George Tomlinson
>. Noah Callaway
Jesse Spratling
John M'Card
Magers Henderson
James Goodwin
Geo. W. Johnson
Willis Baker
Bryant Collins
Philip Pittman
Drewry Clarke
Thomas M'Ginty
John King
William Wiggins
Jordan Brooks
Thomas Collins
Adam Jones
Washington M'Ginty
Brown Liverman
Jethro Proctor
Carleton Greer
John H. Manderson
A. B. Lucas
Daniel Ross, Cherokee
Nation.