Alexander vs. Markham.

unincumbered title to the land, as he represented, and declined to pay the notes. That the lot of land was incumbered by a mortgage to the Loan and Building Association of Atlanta. That the value of the lands in Atlanta had increased within a short time, to a very great extent, but that he believed they were on the decline, and that such decline might ruin many of the landholders of the city of Atlanta, who had not paid for their lots, and that he believed that the said defendant would become by such means unable to respond in damages for the price of the lots so bought by plaintiff. That after the action was commenced by Markham, plaintiff pleaded a good plea to the same, intending to defend the suit. That although his attorneys were at the Court at which the trial was to be had, Markham's attorney privately, and without their knowledge or consent, and without the case being called in its order, went to the jury, and presented a verdict to them, as if the case had not been defended, and procured the same to be signed ex parte; that plaintiff's plea by an unforeseen accident, did not come to the eye of the attorney for Markham. That the first plaintiff heard of the verdict was from the Sheriff, showing him the fi. fa. founded on the judgment entered up upon said verdict, and telling him he had orders to make the money on said fi. fa. immediately.

The defendant answered this bill, and moved to dissolve the injunction which had been granted according to the prayer of the bill. The plaintiff objected to the hearing of this motion, on the grounds:

1st. That exceptions to the answer of the defendant had been filed (and should first be disposed of,) because said bill had not been sufficiently answered in that the defendant had not answered, whether or not his property consisted in Atlanta lands of fictitious value, and answered evasively, as to his insolvency.

2d. Because defendant did not answer whether he had a

Alexander vs. Markham.

good title to said lands, and such a one as would enable him to make a good and sufficient title to complainant.

3d. Defendant did no tsay in his answer that he ever had any perfect title to said land.

Plaintiff's counsel insisted that the injunction should not be dissolved, because the equity in the bill had not been sworn off. He also objected to the reading of an affidavit alluded to in the rule nisi, for the dissolution of the injunction, because it did not form part of defendant's answer, it not having been made an exhibit to said answer, and also, because it had not been filed in the office of the Clerk of the Superior Court.

The Court refused to dispose of these exceptions by themselves, but allowed argument on the motion to dissolve the junction, that the Court might dispose of the whole case at

once.

The Court allowed the said affidavit to be read on the argument, to which complainant's council excepted.

After hearing the argument, the Court granted an order dissolving the injunction.

To this decision of the Court, counsel for complainant excepted and filed his bill of exceptions, saying that the Court erred.

1st. In allowing said affidavit to be read in the argument. 2d. In dissolving said injunction.

HAMMOND & SON, for plaintiff in error.

OVERBY & BLECKLEY, contra.

By the Court.-BENNING, J. delivering the opinion.

The answer says, that the "incumbrance" complained of in the bill, had been removed. The whole equity of the

Barrett & Williford et al. vs. Black, Cobb & Co.

bill depended upon the existence of this incumbrance. The removal of the incumbrance was, therefore, equivalent to abstracting from the bill, all its equity.

We think, then, that the order dissolving the injunction, was right.

Judgment affirmed.

BARRETT & WILLIFORD, and others, plaintiffs in error, vs. BLACK, COBB, & Co., defendants in error.

[L] A man residing in Rome, wounded another, and fled into Alabama, leaving his wife behind him, who continued residing where they had been residing, when he fled. In the course of a few months, he was sued, and copies of the writs were left for him, with his wife, at the place at which he was residing when he fled. Held, that there was not enough in this to show that he had changed his domicil at Rome for any other domicil; and, therefore, that the suits were well served.

[2.] The Act of 1856, enlarging the jurisdiction of Justices' Courts to demands not exceeding fifty dollars, includes demands sued for by attachment, as much as demands sued for by ordinary process.

Certiorari, from Floyd county. Decision by Judge HAMMOND, at February Term, 1858.

J. R. Saxon, a citizen of Rome, Floyd county, having committed a crime, fled to the State of Alabama, where he remained; his wife, however, continued to reside in Rome. After his departure from the State, and in May, 1857, Barrett & Williford sued out an attachment for $42 50, returnable to a Justices' Court; and in June thereafter, Black, Cobb & Co. sued out an attachment for $77 60, returnable to the Superior Court. Both attachments were levied upon property belonging to Saxon, by a bailiff. E. P. Treadaway afterwards commenced his ordinary action of debt against Saxon for

Barrett & Williford et al. vs. Black, Cobb & Co.

$40; and Gregory & Wooten a like action for $44 50, both returnable to a Justice's Court.

At June Term, 1857, of the Justice's Court, judgment was obtained in the attachment case of Barrett & Williford and also in the ordinary action of Treadaway, the same being for rent; and at the July Term, judgment was had in the case of Gregory & Wooten. The bailiff in the suits of Treadaway, and Gregory & Wooten, had left a copy summons with the wife of Saxon, and had returned, that they had been left at his most notorious place of abode.

The property levied on by virtue of the attachment of Barrett & Williford was sold under an order of the Justices'

Court, and brought $144 65, and that Court ordered the same to be paid to the attachment of Barrett and Williford, and to the judgments of Treadaway and Gregory and Wooten. To this order Black, Cobb and Co. excepted, and brought the case by certiorari before the Superior Court. That Court sustained the certiorari, and ordered the bailiff to pay the money to the Clerk of said Court, to be held subject to its order. To this decision counsel for defendants in certiorari excepted..

H. A. GARTRELL, for plaintiffs in error.

R. D. HARVEY, contra.

By the Court.-BENNING J. delivering the opinion.

When it is shown that a man has acquired a domicil, it will be presumed that he retains that domicil until it be shown that he has changed it for another. This may be assumed.

It was shown that Saxon had acquired a domicil at Rome. It was shown that he was residing there with his wife.

Now, was it also shown that he had changed this domicil? All that was shown in proof that he had, was, that he, after wounding a man, had fled into Alabama. And even for the proving of this, we have to trust to the petition for

Barrett & Williford et al vs. Black, Cobb & Co.

certiorari of the party, not to the answer of the Justice of the Peace.

There is nothing in the evidence to show that he made any stop at any particular place in Alabama; nothing to show that he had not left that State. His wife still remained residing at the place in Rome at which he was residing when he fled from justice; the time he had been gone was only a few months.

This was the case made by the evidence; and we think that there is not enough in this case to show that he had changed his domicil at Rome for any other.

[1.] Consequently, we think that the suits of Treadaway, and Gregory & Wooten, which were served by the leaving of copies with Saxon's wife, at the place in Rome at which he was residing when he fled to Alabama, were well served; and that the judgment of the Court below, declaring them ill served, was erroneous.

Barrett & Williford's attachment was for over $30. Was the case beyond the jurisdiction of a Justices' Court?

The 6th section of the attachment Act of 1856 declares, that "when the amount sworn to shall exceed the sum of thirty dollars, the attachment shall be made returnable to the Superior or Inferior Court," &c.

The object of this section was to define where attachments within the jurisdiction of a Justices' Court shall be returned, and where those beyond the jurisdiction of that Court shall be returned; it was not the object, to define what cases are, and what are not, within the jurisdiction of that Court.

[2] But even if this was the object, it would make no difference. This Act was passed on the 4th of March, 1856On the 5th of March, 1856, another Act was passed, of which the first section is as follows: "That from and after the first day of March next, the jurisdiction of Justices of the Peace shall extend to the amount of fifty dollars, principal with interest,"

That this language was intended to include suits by at