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Smith vs. Jordan.
want of a valuable consideration may be a badge of fraud; but it is only presumptive, and not conclusive evidence of it, and may be met and rebutted by evidence on the other side." Story Eq. section 362. The weight of authority is, in our opinion, in favor of the view here expressed. See note 2, to the section referred to, and note 1, to the next section, and section 365.
We think, then, that the charge was not wrong.
And if the charge was not wrong, it is plain, that it could not have been wrong to refuse the request to charge, for that · was in conflict with the charge.
JAMES B. SMITH, plaintiff in error, vs. WILLOUGHBY JORDAN,
defendant in error.
A. made a mortgage 10 B., which was not recorded until after the three months
had elapsed. Before foreclosure, C. obtained a general judgment against A., the fi. fa. from which was levied on the mortgaged property. At the sale un
der this levy, notice of the mortgage was given to the purchaser. Held, That as the judgment creditor, had gained a priority over the mortgagee,
the purchaser purchased free from the encumbrance of the mortgage, notwithstanding the notice.
Claim, from Randolph county. Tried before Judge KidDOO, November adjourned Term, 1858.
John H. Jones executed and delivered to Willoughby Jordan, a mortgage upon a certain negro slave Jim, on the 7th day of October, 1851, which was recorded in the Clerk's office, on the 21st day of January, 1852.
David Biggerstaff obtained a judgment against said John
Smith vs. Jordan.
H. Jones, on the 18th day of September, 1852, upon which execution issued and was in January 1854, levied upon the said negro slave mentioned in the said mortgage, and the Sheriff, on the first Tuesday in March following, exposed the said negro to public sale at the usual place in said county, by virtue of said levy. Public notice was given of the existence of the mortgage, and the purchaser required to give bond and security for the forth-coming of the negro, to answer to the same. James B. Smith was the highest bidder, the boy was knocked off to him at the price of $416; Smith paid the money, and the negro was delivered to him.
Willoughby Jordan foreclosed his mortgage, upon which execution issued, dated 27th day of June, 1854, which was levied upon the negro slave Jim, and James B. Smith claimed him as his property.
Upon the trial of the case, after the above facts had appeared, the counsel for claimant requested the Court to charge the jury:
That although the mortgage may be older than the judgment under which the negro was sold, still if the mortgage was not recorded within three months from the date of its execution, and the judgment was obtained before the foreclosure of the mortgage, the lien of the judgment on said negro took precedence over said mortgage, and that the purchaser of said mortgaged property at Sheriff's sale, by virtue of a fieri facias issued upon said judgment, would obtain a good title to the same in exclusion of the lien of the mortgage.
Which charge the Court refused to give, and charged, that such would be the law, provided the purchaser did not have actual notice of the existence of the mortgage at the time of the sale; but if he did have such actual notice at the time, the property would still be subject to the same.
Camp vs. The State.
To which said refusal to charge, and the charge as given, the claimant excepted and assigns error.
The jury found the property subject to the mortgage fi fa.
H. C. PERKINS, for plaintiff in error.
Hood & ROBINSON, for defendant in error.
By the Court.-BENNING, J. delivering the opinion.
If Shepherd vs. Burkhalter, 13 Ga. R. 443, be right, both the charge, and the refusal to charge, were wrong. We see no reason to doubt that case. It is the right of the judgment creditor, to sell whatever his judgment binds. This right would be impaired, if purchasers were not allowed a corresponding right to buy. This corresponding right to buy, purchasers would not have, if they were liable to be affected by a notice of other liens or claims inferior to the judgment.
For the sake then, of the creditor, not of the purchaser, a notice to the purchaser in such a case as the present, can be of no effect.
Judgment reversed and a new trial ordered.
NEWTON CAMP, plaintiff in error, vs. Tue STATE OF GEOR
GIA, defendant in error.
11.) An indictment concludes properly, if it follows the form prescribed by the
statute. [2.] Manslaughter may be committed by killing a slave. (3.1 That a bill of indictment for manslaughter, charges facts in the body of it which constitute murder, is no ground for arresting the judgment.
Camp vs. The State.
14.) It is not necessary for the jury to incorporate in their finding the defiai
tion of the offence charged in the indictment.
Manslaughter, from Marion county. Tried before Judge WORRILL, March Term, 1858.
Newton Camp was placed upon his trial under an indictment, the language of which was as follows:
“ The grand jurors sworn, chosen and selected for Marion county, in the name and behalf of the citizens of Georgia, charge and accuse Newton Camp of the county and State aforesaid, with the offence of manslaughter, for that the said Newton Camp, in the county and State aforesaid, on the twelfth day of June, in the year of our Lord, one thousand eight hundred and fifty-seven, with force and arms and with a certain strap of leather, called a carriage trace, in and upon a certain negro man slave named Willis, the property of James M. Harvey, in the peace of God and said State, then and there being, did then and there make an assault, unlawfully, wilfully, feloniously and with malice aforethought, and the said negro man slave Willis, with the car. riage trace aforesaid, which he the said Newton Camp then and there had and held in both his right and left hands, in and upon the back and in and upon the shoulders, and the loins of him the said Willis, then and there unlawfully, wil. fully, feloniously and of his malice aforethought, did strike and beat, giving to the said Willis, divers wounds of which said wounds, the said Willis, then and there died. And the jurors aforesaid, on their oaths as aforesaid, do say, that he, the said Newton Camp, him the said Willis, then and there, wilfully, unlawfully, feloniously and of his malice aforethought, did kill, contrary to the laws of said State, the good order, peace, and dignity thereof."
The jury returned the following verdict: “We the jury find the defendant guilty of involuntary manslaughter, in the commission of a lawful act, which probably might produce such a consequence in an unlawful manner.”
Camp vs. The State.
Counsel for defendant then moved in arrest of judgment, on the following grounds :
Ist. Because the indictment does not charge that said offence was committed contrary to the Constitution of this State, and the Act of the assembly made in pursuance thereof
2d. Because the indictment does not charge the defendant with any crime known to and punishable by the laws of this State.
3d. Because said indictment is void, and of no effect in law, as the same does not charge and set forth any offence known to the law.
4th. Because said indictment charges said defendant with being guilty of manslaughter, and the allegation and specification in the same, do not support said charge of manslaughter.
5th. Because the verdict of the jury rendered in said case, does not find the defendant guilty of any offence punishable by the laws of this State.
The Court overruled the motion; whereupon defendant's counsel excepted, and assigns the same as error.
BLANDORD & CRAWFORD; Davis & HUDSON; and A. G. PERRYMAN, for plaintiff in error.
Sol. Gen. OLIVER, for defendant in error.
By the Court.—McDonald, J. delivering the opinion.
[1.] The first ground in the motion in arrest of judgment, cannot be sustained. The conclusion of the indictment fol. lows the form prescribed by the statute. Besides, it is an exception which goes merely to the form of the indictment, and cannot be sustained in arrest of the judgment of the Court. Cobb's N. Dig. 833.
[2.] The argument, in support of the second and third grounds of the motion, is that manslaughter cannot be com