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Warnock vs. Watson, et al.

eon Warnock moved before the Ordinary to set up a nuncupative will of Everett Tindall, deceased; Green G. Watson caveated the application. The will was established and the caveator appealed. In the Superior Court a motion was made to dismiss the appeal, and the appeal was dismissed. No exception was taken to that decision. But the presiding Judge pronounced the judgment or order above stated, which is assigned as error, and this Court unanimously reverse that judgment. But this Court send back their judgment of reversal with instructions to the Court below, the amount of which is, that the cause shall be reheard before the Ordinary, and that a guardian ad litem shall be appointed for the infant. I cannot concur in the authority of this Court to give instructions, in such a cause, to the Court below. The only jurisdiction which the Superior Court had of the cause, was given to it, by the appeal which was entered from the decision of the Ordinary. That appeal was dismissed. The cause, after the dismissal, was no longer in the Superior Court, and that Court could no more pass an order in respect to it, than it could in any cause pending before the Ordinary. If the order had been passed prior to or simultaneously with the appeal, the effect would have been the same, for the dismissal of the appeal carried with it everything which had been done, and which could not have been authorized, but for the appeal.

The order is nugatory at any rate, in my judgment; for the effect of the dismissal of the appeal, was to leave the judgment of the Ordinary quite as operative and effective as if no appeal had been entered.

The power claimed for this Court to award such order and direction to the Court below, in the premises as may be consistent with the law and justice of the case, cannot, it seems to me, be exercised in this case. There must be a cause in that Court, on which the order and direction of this Court may operate. But there is no cause there. The appeal was dismissed. No error was assigned on the decision dismissing

House vs. House.

the appeal, and without it, this Court could not reverse the judgment of dimissal; and that standing, the case cannot be in the Superior Court.

ELIZABETH M. House, plaintiff in error, vs. JESSE HOUSE,

defendant in error.

A Court has no jurisdiction over a case in which, neither of the parties is, or has ever

been, in the State, or is a citizen, or a resident of the State, or the owner of property in the State.

Divorce, from Richmond county. Decided by Judge HOLT, October Term, 1857,

This case was a libel for divorce. The Sheriff having returned that the defendant could not be found in his bailwick and it appearing to the Court that neither of the parties were residents of the State of Georgia, a motion was made on the part of the libellant that the Court would allow service to be perfected by publication.

The Court below refused the motion, and counsel for libellant excepted.

WALKER & Rogers, for plaintiff in error.

contra. >

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

In this case, neither party was in the State, or was a citizen in, or a resident of the State, or, as far as appears, had property in the State.

Stringfield vs. The State.

It was, therefore, a case over which no Court of the State, had, or could have, any jurisdiction—a case to which no law of the State could possibly extend.

We think, therefore, that the Court was right, in refusing to " allow service to be perfected by publication.”

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Judgment affirmed.

John P. STRINGFIELD, plaintiff in error, vs. THE STATE OF

GEORGIA, defendant in error.

An indictment charging the accused with the offence of trading with a slave without

written permission from his owner, &c., need not charge the name of the owner or the slave, nor the ownership of the property traded.

Decided by

Misdemeanor, from Richmond county. Judge Holt, at October Term, 1858.

The indictment charged that the defendant, on the 23d day of December, A. D., 1856, in the county of Richmond “ did receive from a certain negro slave, then and there the property of one Mr. Warren, a certain jar containing lard of the value of six dollars, without written permission from the owner, overseer or employer of said slave, or from any other au thorizedto give such permission, authorizing said slave to sell and dispose of said jar containing lard,” &c.

The defendant was arraigned and pleaded to the indictment. He was tried and found guilty by the jury.

Before sentence on the verdict he moved the Court in arrest of judgment, on the following grounds, to-wit:

1st. Because the indictment is not sufficiently certain to warrant the conviction of the defendant.

Stringfield vs. The State.

2d. Because the indictment does not charge the name of the negro from whom the articles were charged to have been received.

3d. Because the indictment does not charge the name of the owner of the slave, the language of the indictment being, that the defendant did receive from a certain negro man slave, then and there the property of one Mr. Warren.

4th. Because the indictment does not charge that the jar of lard, alleged to have been received was the property of any person.

The presiding Judge overruled the motion, and counsel for defendant assigns error on the three last grounds in the motion, to-wit:

1st. That the indictment does not charge the name of the liegro.

2d. That it does not charge the name of the owner of the slave.

3d. Because it does not charge that the jar of lard was the property of any person.

WALKER & RODGERS, for plaintifften error.

Attorney General, McLaws, for defendant in error.

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

Every ground in the motion in arrest of judgment on which error is assigned, has been decided by this Court. In the case of Ricks vs. the State, the plaintiff in error, was indicted for buying cotton from a slave without permission; the Judge of the circuit Court charged the jury that it was not necessary to allege or prove the ownership of the cotton in any person, and this Court sustained the charge. 16 Ga. 600, 603.

Fardy Sweeney was indicted in the Superior Court of Bibb county, for selling and furnishing a slave with spirituous liquors, for the slave's own use, he the said Sweeney not being the owner, overseer or employer of said slave, and not then and

Stringfield vs. The State.

there having the said slave under his custody or care. The jury found him guilty. It was objected to the indictment on a motion in arrest of the judgment, that it did not aver the name of the negro or contain any other allegation by which his identity might be sustained or proved. In delivering the judgment, the Court remarked that it was insisted that unless the indictment had stated the name of the negro and the name of his owner, the judgment would not serve as a bar to another indictment for the same offence. This Court held otherwise. 16 Ga. R. 467. These cases settle the points made in this case. It is true that in the case of Sweeney vs. State, the indictment charged that the name and owner of the slave were unknown. But the Court decided the case without reference to that allegation. Indictments for larceny must charge the ownership of the property alleged to have been stolen to be in some person, and if the owner be unknown that must be alleged. But that is a rule not without a reason, for the jury on conviction of the accused find all the facts charged and among them the ownership of the property alleged to have been stolen. On conviction of the defendant, the owner, if known, is entitled to have the property restored to him and if he be not known, it goes, in England, to the crown. 2 East's. Cr. Law, 651. Larceny and Robbery, Sec. 88.

In this State every negro is presumed to be a slave and to have an owner, and proof of his color is sufficient prima facie evidence of his being a slave and supports that allegation.

Judgment affirmed.

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