Thurman vs. The State.

next six months after the first case was dismissed, inasmuch as the plaintiff was compelled to renew his suit within that time, or forfeit his right to do so afterwards. Williams therefore takes one Absalom Lively to a cabin which was the only building on the place, rents him the land for the year 1853, for twenty-five dollars, the door is nailed up, and the parties retire together; the witness being charged not to divulge the

transaction.

On the 4th of March, 1853, Barnes the tenant of the plaintiff, goes to the house, lifts the door off the hinges, takes possession of the empty hut, not even finding the few old clothes that had been put there by Lively. Barnes remained until his crop was nearly made, when he was turned out by the joint act of Williams and Lively.

Under these circumstances, did the premises ever change possession, even if the contract between Williams and Lively had been bona fide? But if the arrangement was colorable only, and the jury had a right to find from the proof that it was, and likely would have so thought; then it is quite clear to our minds that the possession of Williams never was changed. This question, at any rate, should have been submitted to the jury, with a suitable charge from the Court, as to the law of the case.

Judgment reversed

ISAAC THURMAN, plaintiff in error, vs. THE STATE OF GEORGIA, defendant in error.

The Act of 5th March, 1856, establishing a Criminal Court in the City of Atlanta, and authorizing a bill of indictment, in case of misdemeanors, to be found by nine Grand Jurors, not unconstitutional.

Thurman vs. The State.

Certiorari, from Fulton county. Decided by Judge BULL, October Term, 1857.

The facts of this case are stated in the opinion pronouned by the Court.

HAMMOND & SON, for plaintiff in error.

SOL. GEN'L, contra.

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

On the 5th of March, 1856, the Legislature passed an Act, to organize and establish a criminal Court in the cities of Columbus, Macon, Atlanta and Rome, and to define its jurisdiction. See Pamphlet Acts 240.

By the 7th section of this Act, it is provided, that no Grand Jury shall consist of less than twelve, nor more than fifteen persons; but that nine may find a bill, or make a presentment. Isaac Thurman having been indicted under this Act, and found guilty of a misdemeanor by the trial jury, excepted to its constitutionality. His objection being overruled, he certioraried the proceedings of the city to the Superior Court, where the decision of Judge WHITAKER was sustained by Judge BULL, and to reverse this judgment, this writ of error is prosecuted.

The position taken by counsel for the accused is, that the Act of the Legislature in allowing an indictment to be found by nine instead of twelve Grand Jurors, violates the 5th sec. of the 4th Article of the State Constitution, which declares, that trial by jury as heretofore used in this State, shall remain inviolate.-Cobb 1125. And he seeks to establish his proposition by showing, that both at common law, and all the previous Constitutions and Judiciary Acts in this State, from 1777 to 1798, twelve men were necessary to find an indictment; and that consequently, that clause of the State Constitu

Thurman vs. The State.

tion, which has been cited would be infringed, were an indictment allowed to be found by a less number than twelve.

Concede all that the counsel contends for in this case, whose researches are so creditable to his industry, still there is another view of this question, which relieves it entirely from the Constitutional difficulty.

By the 1st section of the 3d Article of the Constitution, the Superior Courts have exclusive jurisdiction in all criminal cases, as relates to free, white persons, except for minor offences, which do not subject the offender to the loss of life, limb or member, or to confinement in the Penitentiary. In all such cases, Corporation Courts such as now exist, or which may hereafter be constituted in any incorporated city, being a seaport town and port of entry, may be vested with jurisdiction to try such minor offences, under such rules and regulations as the Legislature may hereafter by law direct.— Cobb 1121. And by a subsequent amendment of the Constitution, the foregoing words "being a seaport town and port of entry," are stricken out.—Pamphlet 1853, 1854—so that the jurisdiction over minor offences is given to all incorporated towns, under such rules and regulations as the Legislature may direct.

In the case before us, the Legislature in the legitimate exercise of the powers thus specifically conferred, have provided that for misdemeanors like the one which brought up this case, committed in the city of Atlanta, the same being an incorporated town, nine persons might present or find a bill of indictment. It was competent for the General Assembly, in the establishment of this Criminal Court, under the amended Constitution, to have dispensed with this preliminary investigation altogether, and put the party at once upon his trial. Perhaps, they may have dispensed with a jury altogether, why not? A fortiori was it competent for them to have passed this Act, diminishing the number of grand jurors necessary to find a true bill.

Judgment affirmed.

Dearing vs. Thomas.

A. P. DEARING, plaintiff in error, vs. W. H. THOMAS, defendant in error.

[1] Under the Act exempting house and lot not exceeding a certain value in a city or town from levy and sale in payment of debts, and a house and lot of greater value being owned by the debtor, a sale may be made, and a sum of money may be allowed the debtor from the proceeds of sale, equal in amount to the specified value ef property exempted by the Act from sale, as an equitable mode of partitioning[2.] The removal of the defendant from the house and lot, does not subject it to the payment of a debt, if it be otherwise exempt.

Claim, from Lumpkin county. Decided by Judge RICE, February Term, 1858.

This case came on in the Court below upon a rule nisi against the Sheriff, requiring him to show cause why he did. not pay over to Thomas, his agent or attorney, $200, arising from the sale of his (Thomas') property under an execution from the Superior Court, in favor of Dearing. The claim was made under the statute exempting certain property from levy and sale.

A statement of facts was agreed upon by the counsel, to the effect that a portion of the defendants family was in possession of the property at the time of the levy; that the defendant was a Methodist traveling preacher residing in Hawkinsville at the time of the levy. At the time of the sale, the defendant had gone out of possession, but his agent (a son) was in possession. At the time of hearing the motion, the defendant had moved into the Florida Conference, a part of which is in Georgia. That the House and lot sold were in the village of Leathersford, in Lumpkin county. The Sheriff was notified by the defendant's attorney at the time of the sale, that the defendant would claim $200 under the Insolvent Law.

Plaintiff moved the Court, if it should be of opinion that defendant could draw the money at all, that it should order that the same should be invested within the jurisdiction of

Dearing vs. Thomas.

the Court, so that if defendant ever became solvent, plaintiff could have the benefit of the fund.

The Court ordered $200-money raised on the said property-to be paid the defendant without restriction, and plaintiff excepted.

JOHNSON, appeared for plaintiff in error.

WEIL, and Born, for defendant.

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

[1] This cause was heard and determined at the February Term of the Superior Court of Lumpkin county, 1858. It seems, from an agreement of the counsel, not referred to in the foregoing statement of the case, that the sale of the property from which the money was raised, which gives rise to this contest, was made in October, 1857, under an order of Court passed at the previous August Term. It does not appear in the Record why it was that the Court passed this order. It may have been on some dispute or issue in respect to the value of the property in the defendant's possession, and for the protection of the levying officer. This Court has decided, that it is not necessary to give notice and have a survey made in cases where the land levied on is less than the quantity exempted by the statute; and in another case, that, as the law exempts one horse of the value of fifty dollars from levy and sale, and the defendant has but one horse, and his value exceeds fifty dollars, he shall be allowed fifty dollars from the proceeds of sale to purchase a horse of that value. Moultrie vs. Elrod, 23 Ga. This equitable construction of the Act. may be well applied to a town lot which cannot be so partitioned as to allow the debtor his rights under the exemption Act; and we will not interfere with the judgment of the Court below on that assignment of error. The order at August Term for the sale of the land, may have been predicated on the said decisions.

A defendant is entitled, by the Act, to own, hold and pos