Settle vs. Alison and others.

Reuben M. Rainey, as testified to by Catharine Rainey. This witness stated, "she had often heard Reuben M. Rainey say, that the slaves, Minerva and Stephen, were brought from Virginia, and were given to Reuben M. Rainey's wife and children, by his wife's father, Thomas Cleaton, and could not be sold for Reuben M. Rainey's debts, or in any other way for said Rainey's benefit."

It does not appear at what time these declarations of Reuben M. Rainey were made, and in that view of the question, they were clearly illegal, as was ruled by this Court in Carter vs. Buch anan, 3 Kelly, 519, '20. The defendant in error, however, concedes that the declarations of Reuben M. Rainey were improperly admitted in evidence, but insists that there is sufficient evidence, on the part of the plaintiff below, to sustain the verdict, without the evidence of Catharine Rainey. The great question in issue between the parties on the trial was, whether the slave, Minerva, went into the possession of Reuben M. Rainey, as a gift, before the death of Thomas Cleaton, or whether he obtained possession of the slave after the death of Cleaton, under his will? Upon this point, the testimony is so much in conflict, that it is very difficult to determine on which side is the weight of the evidence.

[5.] The illegal evidence as to the sayings of Reuben M. Rainey, having been admitted by the Court as competent evidence, to the Jury, to determine that issue, might, and in all probability did, decide the question in favor of the plaintiffs. We cannot say, that the Jury were not influenced by the testimony of Catharine Rainey; and where illegal testimony has been admitted, which not only might, but most probably did, influence the mind of the Jury, a new trial ought to be granted. Marquant vs. Webb, 16 Johns. Rep. 89.

[6.] Thenext objection is, to the charge of the Court to the Jury. The defendant relied on the Statute of Limitations, and the Court charged the Jury, that they could find a verdict in favor of such of the plaintiffs as they might believe not to be barred by the Statute of Limitations, and against those whom they might believe to be barred by the Statute. It appears from the record, that some of the plaintiffs had been of age long enough to be barred by the Statute, and that some of them had not been of age a sufficient period of time, for the Statute to operate as a bar. The

Settle vs. Alison and others.

charge of the Court was in accordance with the rule established by this Court, in Thornton vs. Jordan, decided at the last term in Milledgeville, and, therefore, constitutes no ground of error. It appears from the record, that the Jury found a verdict for four of the plaintiffs only, and did not find a verdict either for or against the other four-there being eight plaintiffs. The Jury ought to have returned a verdict, under the charge of the Court, in favor of such of the plaintiffs as were not barred by the Statute of Limitations, and against those who were barred by the Statute. A general verdict is a finding, by the Jury, in the terms of the issue or issues referred to them. Tidd's Practice, 798. One of the issues referred to the Jury was, as to the right of all the plaintiffs to recover from the defendant, or only a part of them. As this question was submitted to the Jury, it was their duty to have passed upon it. Brocknay vs. Kinney, 2 John. Rep. 211. Van Benthuysen vs. Denett, 4 John. Rep. 214.

[7.] The verdict was imperfect, inasmuch as it did not find all the issues that were submitted. It was as much the duty of the Jury to have found against the plaintiffs who were barred by the Statute, as it was to have found in favor of those who were not barred. The Court, however, after this imperfect verdict had been received and recorded, and the Jury dispersed, four days thereafter, permitted the Jury to re-assemble, and state what they intended to find by their verdict, and to amend it accordingly. To allow the Jury, after their verdict had been received and recorded, and they discharged from the farther consideration of the cause, and mingled with the parties, the witnesses, and their fellow-citizens generally; ascertained, perhaps, the wishes of one of the parties, the intention of the witnesses, or the state of public opinion in relation to their verdict-I say, to allow the verdict to be amended, under such circumstances, according to what the Jury might then state it was their intention to find, (such intention not appearing on the face of the verdict,) would be a dangerous and mischievous practice. In Spencer vs. Goter, (1 H. Blackstone, 79,) the Court refused to alter the verdict of a Jury, unless it clearly appears, on the face of the verdict, that the alteration would be agreeable to the intention of the Jury, and that the proper remedy was a new trial. Although no mischief may have resulted to the parties from the amendment of the verdict, in this par

Dorster us. Arnold.

ticular case, under the circumstances stated in the record, yet we are unwilling, by our judgment, to establish such a precedent. Let the judgment of the Court below be reversed, and a new trial granted.

No. 36.-GREEN B. DORSTER, plaintiff in error, vs. George W. ARNOLD, defendant.

[1] A plaintiff who has notice of a fatal defect in his declaration, at the appearance term of the appeal, and makes no motion to amend until the second term, and when the cause is before the Jury, is too late, and cannot then amend.

Assumpsit, on appeal, in Coweta County. Decision by Judge HILL, at September Term, 1849.

The plaintiff sued for a bill of lumber, as per bill of particulars; the declaration had two counts, indebitatus and quantum meruit, and these only. At the first term, plaintiff confessed and appealed. On the appeal trial, it appeared that there was a special contract, whereby defendant was to pay off certain fi. fas. vs. plaintiff, &c. The Court, on motion, non-suited plaintiff, overruling his motion to amend his declaration, by inserting a count on the special contract, to suit the proof.

The Court, on a motion to reinstate the case and set aside the non-suit, held, that the motion to amend came too late; that plaintiff, at the preceding term, knew of the necessity of this amendment-this being the second term on appeal; to which ruling the plaintiff excepted, and brings this writ of error.

There was no appearance for the defendant in error, and the cause proceeded ex parte.

SIMS and BURCH, for plaintiff in error.

VOL. VIII 27

Beall and others vs. Bealls.

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

We do not question but that the declaration in this case was amendable, and at the time when the motion to amend was made. By the judgment of the Court, we learn that the anfendment was refused, upon the ground that the plaintiff had notice of the necessity of the amendment, at the preceding term, and not amending then, he is precluded, by his laches, from amending now. The facts are, that at the first trial term, the plaintiff confessed a judgment for the defendant, with leave to appeal-did enter an appeal—at the appearance term of the appeal, there is no entry in the case, and at the second term of the appeal, when the cause was before the Jury, he moves to amend. I infer that he confessed on the first trial, because his declaration was defective; if so, then he had notice of the defect. The same notice operated on him at the appearance term of the appeal, when he was entitled to amend. The character of the notice is not stated. The Court ruled that he had notice. We must presume that it was a sufficient legal notice, and not amending earlier, he is not now entitled.

Let the judgment be affirmed.

No. 37.-MARY C. BEALL, administratrix, &c. and others, vs. WILLIAM H. BEALL and ELISHA H. BEALL, defendants.

[1.] Bastards may be made legitimate, and capable of inheriting, by an Act of Parliament, The Legislature of Georgia possess the same power.

[2.] In England, the sovereignty of the nation resides in the Government—in this country, the supreme power is in the people.

[3.] In England, the omnipotent authority of the Parliament is the dernier resort in all matters of difficulty and importance; in this country, the written Constitution.

[4.] The General Assembly in this State has power to make all laws and or

Beall and others vs. Bealls.

dinances which they shall deem necessary and proper "for the good of the State," provided they are not repugnant to the Constitution of the United States, the laws of Congress, passed pursuant thereto, public treaties and the Constitution of the State.

[5.] To disregard the laws of the State, is a capital crime against society, and great vigilance is necessary to see to it, that they are equally respected, by those who govern, as well as those who are destined to obey.

[6.] Notwithstanding the Judiciary is the weakest of the three departments of the Government, and is therefore less dangerous to public liberty than either of the other two, still it is both the right and duty of all Courts to declare all Acts void, which plainly and palpably violate the Constitution.

*

Mr. Elias Boudinot, a distinguished Representative in Congress, rejoiced, that if, from inattention, want of precision, or any other defect, he should do wrong as a legislator, there was a power in the Government which could, constitutionally, prevent the operation of a wrong measure from affecting his constituents.

[7.] An individual's right to his property consists, not only in its present enjoyment, but also its future disposition, and he can be deprived of neither, except for public uses, without his consent.

[8.] Where an Act of the Legislature is passed, legitimatising W and E to A B, their reputed father, and authorising them to inherit from him, his assent will be presumed; more especially when the reputed father lives five years after the law is passed.

[9.] The power of the Legislature to pass an Act, changing the law of descents, as it respects a particular individual, without his consent and against his will, is contrary, not only to the definition of law, "as a rule of civil conduct," applicable to the whole State, but to the genius and spirit of our institutions.

[10.] A private Act of the Legislature, as to its facts and recitals, imports verity, equally with the records of the Courts; still it may be attacked for fraud in its procurement.

[11.] No inheritance can vest, nor any person be the actual, complete heir of another, till the ancestor is dead.

[12.] A husband may, by deed or will, in his lifetime, deprive his wife of the whole of his estate, except dower; so also, he can procure an Act of the Legislature to be passed, limiting her right of inheritance after his death. [13.] The Legislature in Georgia, and not the Courts, are intrusted with the discretion of determining what laws are promotive of the public morality, or otherwise.

[14.] While it is true, that too much countenance ought not to be given to the indulgence of criminal desire, nor encouragement to the increase of spurious offspring, still that policy may well be doubted which would reject all provision made for illegitimate children, and suffer them to be cast, naked and destitute, upon the world.

Illegitimacy will be viewed with much less favor, in criminal proceedings, than in mere questions of property and succession.