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Ross et al. vs. Ross.

railroad is not subject to garnishment by creditors of the stockholders. Was this a good ground?

The answer to this question, depends on the import of the act of 1856, "to authorize the issuing of attachments and garnishments," &c; for, the 55th section of that act, repeals “all acts, and parts of acts, upon the subject of attachments and garnishments.” Acts of 1856, 38.

By the 13th section of this act, the summons of garnishment, is to be " directed to any person who may be indebted to, or have property or effects, of the defendant, in their hands."

By this section, then, it would seem, that all of the debts, property, and effects, of the debtor, are subject to garnishment.

But the 16th section says, "where the garnishee appears and answers that he is indebted, or has property, or effects in his hands, belonging to the defendant in attachment, judgment shall be rendered against him, in favor of the plaintiff, for such acknowledged indebtedness, and the property and effects, whatever they may be, shall be delivered into the hands of the Sheriff,”' &c.

Where the answer is, that he is, “indebted,” judgment is to be entered against him," for such acknowledged indebtedness."

Is stock in this railroad such a debt, (“indebtedness,”') of the railroad to the stockholder, that a garnishing creditor of the stockholder, can enter up judgment for it, against the railroad? It is not; it is a debt which, the railroad dares not pay even to the stockholder himself; the road may pay him dividends on it, but that is all. See charter, section, 3, Acts of 1850, 240; and charter of Central Railroad, Rule 7, (Pr. Dig. 330.)

The debt which a corporation owes to one of its stockholders for his stock, is a debt of a peculiar nature. It is a debt not to be paid, until the corporation comes to wind itself ap. When the corporation winds itself up, then it pays back

Ross et al. vg. Ross.

do so.

to its stockholders, the money, it received from them for its stock; during its existence it may pay them the profits which it makes on their money, but anything beyond the said profits, it dare not pay them. This is generally true. It is true in the case of this corporation. When will this corporation wind itself up? It may never

Its charter sets no limits to the time of its existence. Pr. Dig. 333.

It follows, that the time may never come, when this corporation will be bound to pay back to the Rosses, the money it received from them for their stock. If so, of course, no judgment can be gol against the corporation, requiring it to pay that money at any particular time; consequently, no judgment can be got against the corporation, under the said 16th section of the act, for the judgment it contemplates is one requiring immediate payment.

There is no other part of the act under which such a judgment can be got.

We may conclude, therefore, that although, the language of the 13th section of the act, is broad enough to include all debts, yet that the 16th section of the act is such, as to require this language to be so restricted, that it shall not include such a debt as this; a debt which a corporation owes to one of its stockholders, for the money received from him for his stock.

If dividends were due to the Rosses, the case would be different. Dividends, there is little doubt, stand on the same footing as ordinary debts due from the corporation to its stockholders.

The judgment that is needed in such a case as the present, is a judgment authorizing a sale of the stock. There is no law authorizing such a judgment in attachments or garnishments, 16 Ga. 437. There is a law making“ bank and other stock, subject to execution.” Cobb, Dig. 511. But this law, does not reach the present case.

We think, then, that this stock of the Rosses, was not sub

Thornton (a slave) vs. The State of Georgia.

ject to this garnishment, and, therefore, that the Court erred in not dismissing the attachment.

It becomes useless to consider the other grounds of the notion.

Judgment reversed.

THORNTON, (a Slave,) plaintiff in error, vs. THE STATE OF

GEORGIA, defendant in error.

[1.] The offence of being an accessory before the fact in murder, is one that may be

committed by a slave; and one which, if committed by a slave, is to be punished with death.

[2.] A slave convicted of murder, but not sentenced, is a competent witness for the

State, on the trial of another slave indicted as accessory before the fact in tho murder.

Accessory before the fact to murder, from Greene county. Decided by HARDEMAN, March Term, 1858.

Thornton, a slave, was indicted as accessory before the the fact to the crime of murder, in abetting and procuring a negro slave, John, to commit the murder.

Upon his arraignment, and before pleading to the indictment, Thornton and his master, Robert C. Daniel, demurred and excepted to the same, on the grounds that there was no offence set forth and charged in the said indictment, of which the accused could be prosecuted, corrected or punished, and that the offence of accessory before the fact, which was the offence set forth and charged in the indictment, was an of. fence that could not be committed by a slave, and that a slave was not liable to be prosecuted or punished for said of

Thornton, (a slave,) vs. The State.

fence, the crimes and offences prescribed by the penal code being alone applicable to free white persons, and not to slaves or free persons of color.

After argument on this demurrer, the Court overruled the same, and the defendant excepted.

The accused then pleaded not guilty to the indictment.

In the course of the trial, the State offered as a witness, a negro slave of the name of John, who had been convicted of the murder for which the accused was indicted as accessory 'before the fact, but on whom judgment had not been passed.

Counsel for the accused objected to the competency of this witness, on the ground of his having been convicted of the crime of murder as aforesaid.

The Court overruled this objection, and decided that the said slave John was a competent witness, and the defendant excepted.

The defendant was found guilty and sentenced to death.

Counsel for detendant thereupon filed his bill of exceptions assigning the above rulings and decisions of the. Court as


Cone, for plaintiff in error.

Lofton, Sol. Gen., contra.

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

Is the offence of being an accessary before the fact in murder, one that can be committed by a slave? If it is, is the punishment death?

In 1821, the Legislature declared, that “murder of a free white person," " when committed by a slave,” should be a capital offence. Cobb Dig. 995.

Does the offence of murder, as here declared, include the offence of being an accessary before the fact in murder? If it does, both questions are to be answered in the affirmative.

Thornton, (a slave,) vs. The State.

The Legislature, doubtless, meant by“ murder," what was murder by the law, as the law then was; namely, in 1821.

The law as it then was, was the code of 1817. Did murder, by that code, include the offence of being an accessary before the fict in murder?

The first section of the second division of the code, is as follows: "An accessary 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, shall be called a principal in the second degree."

Here, advisers before the fact, that is, accessaries oefore the fact, and aiders at the fact, are placed on the same footing, and equally made principals in the second degree.

But by the common law, a principal in the second degree, in murder, was a murderer, and might be charged in the indictment, as being guilty of murder. 1 Chitty Cr. Law 260; 1 Arch. Cr. Pr. and Pl. 13, 14.

It would seem to follow, that, by the code of 1817, murder included in itself, the offence of an accessary before the fact in murder.

Again, the code of 1817, no where prescribes in so many words, any punishment for what it thus, calls, principals in the second degree. It merely defines offences, and aflixes to them, punishments. Therefore, unless we say, that these defined offences, include within themselves, the offence of the principal in the second degree, as well as the offence of the principal in the first degree, we say, that the offence of the principal in the second degree, was to go unpunished. But we are not at liberty to say, that the legislature intended the offence of the principal in the second degree, to go unpunished. If such had been its intention, it would not have devoted a whole division of the code, to “accessaries in crimes.

The English Courts hold, that," when an offence is punishable by a statute which makes no mention of principals in the second degree, such principals are within the meaning

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