Cleland et al. vs. Waters et al. executors, &c. words will bear two senses, one agreeable to and another against law, that sense shall be preferred which is most agreeable thereto. Taking these rules for our guides, we might make this will perfectly legal and operative, in regard to these slaves, by expunging the word "either" and "or otherwise"-(and it is only the illegal part that ought not to be recorded)—and then it will read thus: "It is my will and desire, should it please God to remove me at this time, that my negro woman Antoinette, and her two children, together with my negro man Jack, should be emancipated and set free, if it can be done in any manner by the Legislature; and if it cannot be accomplished, then I direct my executors hereinafter named, to send them where it can be done out of the State." Is there any thing illegal in this? Would such a will come in conflict with the policy of our Statutes upon the subject? John Dugger might, in his life-time, have applied to the Legislature to manumit these slaves, without incurring any penalty. And may he not ask his legal representative to make the same application after his death? At any rate, if the rights of creditors do not intervene, (and the executors have not shown such rights to exist) an individual has assuredly the power to send his slaves out of the State for any purpose, although he might not be permitted to bring them back. Can he not ask, by his last will and testament, that this should be done by those to whom he has entrusted his property, and who are sworn to obey his instructions? "The intent of the Statutes is expressed in the preamble to the Act of 19th December, 1818. (Prince's Digest (old) 465, (new) 795.) The object of the Statute's relating to manumission, was to prevent a horde of free persons of color from ravaging the morals and corrupting the feelings of our slaves. Experience has taught our legislators that such a class, lazy, mischievous and corrupt, without any master to urge them to exertion, and scarcely any motive to make it, was an extremely dangerous example to our naturally indolent slaves. They, therefore, declared that such a class should not be increased by manumission (save by consent of the Legislature) or by the admission of such persons from other States to reside therein. Cleland et al. vs. Waters et al. executors, &c. The Legislature, then, is the proper tribunal (if I may use that term) to determine whether the case presented, is one in which none of these dangers exist-one for which reason and humanity plead. To them, the executors, in the discharge of one of the most solemn of all duties, the performance of the dying injunctions of their friend, should make the application, and if it should be refused, then they should fulfil the alternative command of their testator, by sending these slaves out of the State." When this question came incidentally before this Court, in Vance vs. Crawford, (4 Ga. R. 460) it was no longer viewed as an open question. The adjudications referred to, especially the former, had obtained general notoriety. It was made at the seat of Government, during the session of the General Assembly, and if I remember right, was published in the newspapers of the day. It had, when this Court was first organized, been looked to as the settled construction of the law, for fifteen years, and no attempt had been made by the Legislature to disturb it, or if made, was unsuccessful. This Court did not feel at liberty, therefore, to interfere with a judgment thus solemnly and authoritatively pronounced, and so long acquiesced in. And having, heretofore, in Bryant vs. Walton, (14 Ga. R. 185) expressed my views pretty fully upon this subject, I am content to leave it, with this rapid retrospect at the past action of the State concerning the matter, both legislative and judicial. Whatever change is made, if any, should be by the lawmaking, rather than by the law-administering department of the government. It was said of Chief Justice Bridgman, while at the bar, that "he always argued like a lawyer and a gentleman.” I cannot, in conclusion, in justice to my own feelings, forbear to apply this highest of all professional commendation, to the distinguished Counsel who have conducted this cause. NOTE.-Judge LUMPKIN, although present at the discussion, consultation and decision of this case, was not present when the judgment of the Court was pronounced. It fell to his lot, Doe ex dem. Henderson vs. Roe and Hackney et al. however, to write out the opinion. It is due to Judge BENNING to state, that he took occasion to say that he did not consider himself committed as to the construction put upon the Acts of 1801 and 1818, prohibiting manumission.-REPORter. No. 54.-DOE ex dem. WILLIAM HENDERSON, plaintiff in error, vs. ROE and WILLIAM P. HACKNEY and others, defendants. [1] To make a certificate from the Executive Department admissible in evidence, it is not necessary that the certificate should give a copy of that to which it relates. It is sufficient that it gives, substantially, the contents, or a part of the contents, of the thing to which it relates. [2.] A grant is made to Elias Nicks. Evidence going to show that the grantee is sometimes known as Elias Nicks and sometimes as Eli Nicks, is not such evidence as varies or contradicts the grant. [3.] The Court or Jury may compare two documents together, when properly in evidence, and from that comparison, form a judgment upon the genuineness of the handwriting, or the identity of the writers. Ejectment, in Whitfield Superior Court. Tried before Judge JOHN H. LUMPKIN, April Term, 1854. The plaintiff in this cause introduced a deed, dated August 5th, 1839, from Eli Nicks to himself, for the land in dispute; and a grant from the State to Elias Nicks, of Walden's district, Pulaski County, for the same lot, dated May the 10th, 1841, recorded 23d January, 1840. The land was drawn in the Cherokee Land Lottery. The plaintiff then offered in evidence a certificate from the Secretary of the Executive Department, under the seal of that department, to the effect that he had examined the lists for VOL. XVI-66 16 521 87 745 16 521 122 332 Doe er dem. Henderson vs. Roe and Hackney et al. draws in said lottery, returned from Pulaski County; and that he found the name of Elias Nicks of Walden's District entered for two draws; and the name of Miles Nicks of McDaniel's District, for one draw, and that no other person, by the name of Nicks, was entered on said lists from that county. This evidence was objected to, and was ruled out by the Court; which is excepted to by the plaintiff. The plaintiff then offered the testimony of Adon Scarborough, James Holland, and John Holland, taken by interrogatories, which was to the effect, that the witnesses were acquainted with Walden's District in Pulaski County, at the time when the draws for the Cherokee Lottery were given in; that they knew a man in the District named Eli Nicks, but none named Elias Nicks; that Eli Nicks claimed to be the drawer of the lot in question; that they never knew him to spell his name Elias, nor to assume any other name than Eli; and that it was common for persons to give in for draws in other counties than where they lived, but it was common for them, in that case, to state the county and district where they lived. To this testimony, defendants' Counsel objected, on the ground that it attacked the grant; which could only be done by a proceeding instituted for that purpose. The objection was sustained by the Court, and the testimony excluded; to which plaintiff excepted. Plaintiff then proved, that in 1847, he had commenced building a house on the lot; that going there one morning, he found Morris, one of the defendants, in the house, with several others; that Morris refused to let him have possession-claimed the land as his own, and offered to compare titles. Plaintiff then proved by William P. Hackney, that he (Hackney) went on the lot as tenant of Morris, in 1846. Here the plaintiff closed. Defendant introduced a deed for the lot, from Elias Nicks (describing himself as of Dale County, Ala. but formerly of Walden's District, Pulaski Co. Geo.) to Absalom Holcombe, dated 16th May, 1841, and recorded 8th Oct. 1842. Defendant traced title from Holcombe to himself, and closed. Doe ex dem. Henderson vs. Roe and Hackney et al. Plaintiff requested the Court to charge the Jury, that if they were satisfied that the same person executed the two deeds to plaintiff and to Holcombe, that the oldest deed (being recorded in time) passed the title to the first purchaser. Which charge the Court refused to give, but charged the Jury, that they had no right to compare the signatures of the deed to Henderson, with that to Holcombe, for the purpose of determining whether the same person made both deeds, because that would be indirectly attacking the grant, which the Court had held could not be done collaterally. The Court further charged, that if Hackney was in possession under Morris, in 1846, and continued in possession in 1847, then Henderson, in 1847, was a trespasser, and could not recover on the strength of a possession thus taken; that in no event could the plaintiff recover against one in possession, and not a trespasser, when paramount title was shown in another; and that, if there was a grant to Elias Nicks, that did show paramount title out of the plaintiff; and further, that the Court had refused to permit the plaintiff to show that Eli and Elias Nicks were one and the same person, and the Jury could not presume nor infer it. To which charges the plaintiff excepted. The Jury found for defendants, and plaintiff assigns error on the various rulings of the Court, as excepted to. SHACKELFORD, HANSELL, MARTIN & WOFFORD, for plaintiff in error. T. R. MOORE, AKIN, UNDERWOOD, for defendant. By the Court.-BENNING, J. delivering the opinion. The deed to Henderson, the plaintiff below, having been made by Eli Nicks, and the grant from the State having been made to Elias Nicks, it was important to Henderson to show that Eli Nicks and Elias Nicks were the same person. To show this, any thing going to show how many Elias Nickses or Eli Nickses there were in the district of the residence |