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Lafitte vs. Lawton.

Rep. 125, 126. “Marriage is the highest consideration; provision for the children is the immediate object of settlements, and is intended as an effectual provision. The issue are purchasers for a valuable consideration." 1st Dess. Rep. 443. The word issue in the instrument under consideration, in the three places in which a benefit is secured to them, is a word of purchase. Alexander B. Lawton having survived his wife, the subsequent trusts for her and for the possible issue of any future marriage need not be considered, except as auxiliaries in interpreting the settlement.

[2.] The legal interest and estate in all the property and choses in action, the subjects of the trust were conveyed to William H. Brisbane. He was to permit the said Alexander B. Lawton, after the solemnization of the marriage, to have, receive, take and enjoy all the interests and profits of the said property to and for the joint use, benefit and support of the said Alexander B, Lawton and Mary Elizabeth Brisbane (the wife) and the issue of their marriage (if they should be blessed with any) during the life of the said Alexander B. Lawton. The trustee was to permit Lawton, during his life, to receive the interest and profits, not to his own use, but to the joint use, benefit and support of himself, wife and the issue of the marriage, if any. The death of the wife, in the lifetime of the husband, could not divest the issue of the marriage of their interest under the terms of the settlement, nor enlarge the interest of Lawton into a fee for a part or the whole of the property. His interest remained the same, unaffected by that event.

Had Lawton, the husband, died, leaving his wife surviving him, the trust was to remain for the use, benefit and support of the wife and her issue by her first or any other marriage; and lastly, after her death, for the use and support and benefit of the issue of the body of the wife by any marriage. Looking through the whole instrument, it was clearly the intention of the parties, that the parents respectively should have an usufructuary interest in the prop

Lafitte vs. Lawton.

erty during their lives, if there were issue of the marriage, jointly with the children, and that there was no such limit to the interest of the children. Provision for the children was the immediate object of this settlement, and it was intended as an effectual provision.

If there had been no issue of the marriage, the marital right of the husband would have attached to all that part of the property not effectually limited over; but the provision for the children bars that right of the husband. It is his agreement that it should do it, and the property vested in them subject to the interest of the husband, as expressed in the deed of settlement. I acknowledge that I had some doubt on the terms of this settlement and the facts of this case, if the subsequent provisions of the deed, even by aid. ing in ascertaining the intention of the parties, could prevent the husband from sharing the property with the issue of the marriage; but I yielded that to the strong conviction of my brethren, that the husband could not take more than a life interest in the property, and that to be shared with the issue of the marriage.

The children do not claim, as contended for by plaintiff in error, through the husband. The entire property proceeded from the wife. She did not secure more than a life interest in it to herself, and she could not have intended a greater for her husband. On this application for an injunction, the facts of the bill must be taken as true, and they are quite sufficient to entitle the complainant to it. If he proceeds with his cause, however, he must take out administration on the estate of his deceased wife.

Judgment reversed.

The State vs. Lavinia and Wilkes.

'THE STATE, ex rel. John M. TUCKER, plaintiff in error, vs.

LAVINIA, a person of color, defendant in error.

The State on the relation of John M. TUCKER, plaintiff in

error, vs. WILKES, a male slave, defendant in error.

[1.] A certiorari does not lie at the instance of the State to the Superior Courts, to obtain a rehearing in the Inferior Courts, against a slave, who has been acquitted for an alleged violation of the Acts of 1818, Cobb 992, or of 1835, Cobb

1008. [2.] A writ of error does not lie to this Court, in a criminal case at the instance

of the State.

Certiorari, from Baldwin county. Decided by Judge HARDEMAN, February Term, 1858.

The bills of exception in these two cases were filed under the following circumstances :

A warrant returnable to the Inferior Court was issued against a negro woman Lavinia, on the information of John M. Tucker, for residing in the State of Georgia without her name being inserted in the book of registry of free persons of color kept by the Clerk of the Inferior Court; enjoying the profit of her labor and not being in the employment of a master or owner, contrary to the 5th and 6th sections of the Act of 18th December, 1818, entitled “An Act supplementary to and more effectually to enforce an Act entitled 'an Act, prescribing the mode of manumitting slaves in this State.”

Upon the hearing, the prosecutor introduced as a witness, Tomlinson Hart, who swore that the said Lavinia lived in a house not belonging to him, nor provided for her by him; that the said Lavinia belonged to him, but did not work for him, nor had she done so for ten or fifteen years, nor did she work for any white person by virtue of any contract for his benefit; witness gave her papers.

The State vs. Lavinia and Wilkes.

The case being closed and argued, the prosecutor asked the Court to let the witness explain how the slave came to pass away from his premises and live alone as a housekeeper, but the Court refused.

Prosecutor then moved the Court to declare the said Lavinia forfeited. The Court refused the motion and decided that the said Lavinia was the slave of Tomlinson Hart, and liable to his debts. From this decision the prosecutor appealed by certiorari to the Superior Court.

After argument, the Court dismissed the certiorari, on the ground, that the proceeding being criminal, and the defendant Lavinia having been acquitted by the Inferior Court, the Superior Court had no constitutional power to order a rehearing.

A warrant was also issued against Wilkes a male slave, on the information of John M. Tucker, for returning to the State of Georgia from the State of New York, a non-slaveholding State, since the passing, and in contravention of the 5th section of the statute 26th December, 1835, entitled “An Act to amend the several laws now in force, in relation to slaves and free persons of color."

Upon the hearing, the prosecutor proved by Tomlinson Hart that the slave Wilkes, the prisoner was in the States of New York, New Jersey, and Pennsylvania in 1853, and moved the Court to adjudge him forfeited according to the 5th section of the Act of 1835.

The Court decided against the motion and dismissed the warrant on the ground, that the Act of 1835, did not apply criminally to the case as claimed by the prosecutor.

From this decision the prosecutor appealed by certiorari to the Superior Court.

After argument, the Court below dismissed the certiorari on the ground “that as the original proceedings in the Court below, viz: the Inferior Court of Baldwin county, was of a criminal nature, and the Inferior Court had decided in favor

The State vs. Lavinia and Wilkes.

of the defendant therein, that therefore the Superior Court had no constitutional power to order a rehearing."

To these decisions of the Court the informer John M. Tucker filed his bill of exceptions, assigning the same as

error.

McKINLEY, for the plaintiff in error.

KENAN & HARRIS, contra.

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

The woman Lavinia was informed against for violating the 6th section of the Act of 1818, Cobb 992, for working at large and enjoying the profits of her labor, not being in the employment of any master or owner, or of any white person, by virtue of any contract with a master or owner, securing to such master or owner the profits arising from the labor of said slave, being a woman of color.

Wilkes was prosecuted for violating the 5th section of the Act of 1835, Cobb 1008, which prohibits a male slave from returning to this State, after having been in a non-slaveholding State. The accused were duly arrested and brought before the Justices of the Inferior Court of Baldwin county, or a majority of them, and severally put upon their trial; and after hearing the evidence were acquitted and discharged by the Court.

[1] Both cases were brought before the Superior Court by certiorari, and Judge Hardeman dismissed the certiorari on the ground, that the defendants having been acquitted by the proper tribunal, constituted by law for their trial, he had no constitutional power to order a rehearing. To reverse this decision, these writs of error are prosecuted. We are of the opinion that no error was committed by the Circuit Judge. Independent of the Act of 1803, which negatives the idea that slaves can be twice tried for the same offence, Clayton's

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