Doe ex dem. Henderson vs. Roe and Hackney et al.

of the drawer, at the time of the giving in for draws, would be pertinent evidence. And how many there were of these, the certificate from the Executive Department would go to show. That certificate, therefore, was relevant.

Was it also legal evidence? The Court below rejected it, but on what ground, does not appear. The ground taken before this Court, for sustaining the rejection of it, was that the certificate does "not purport to contain a copy of any record document or paper of file"; and the Act of 1819, (Prin. Dig. 215,) was cited in support of this ground. That Act, it is true, does not authorize the use of such a certificate, as evidence. But there is another and a later Act which does-the Act of 1830. (Prin. Dig. 220.)

This Act makes the certificate of any public officer, under his hand and seal of office, if one is attached thereto, either of this State or any county thereof, in relation to any matter or thing pertaining to their respective offices, or which, by presumption of law, properly pertains thereto, admissible as evidence, before any Court of Law or Equity in this State. This is the Act, and this does not say that the certificate to be admissible, must give a copy of something. It is to be admissi ble, if it relates to "any matter or thing" pertaining to the office of him who gives it. And a certificate may relate to a matter or thing, without giving a copy of it. If it states that such and such are the contents of the thing, and such and such are not, it relates to the thing. And this is what this certificate does. It certifies that certain names of the Nickses appear on the list of drawers of land, for a particular district and that no other names of the Nickses do. Instead of giving, by copy, the whole contents of the list, it gives, substantially, what is part of the contents of the list; and it certifies that the part given is all that the list contains of the kind given.

This list was a thing which pertained to the Executive Office. [1.] The certificate, therefore, was legal, and being also relevant, it was admissible in evidence. The Court, therefore, erred in rejecting it.

[2.] The interrogatories offered by the plaintiff, and rejected by

Doe ex dem. Henderson vs. Roe and Hackney et al.

the Court, were such, that if they had been admitted to the Jury, the Jury might, perhaps, have inferred from them, that the Eli Nicks of the plaintiff's deed, and the Elias Nicks of the grant, were one and the same person; and that that person sometimes passed by the name of Eli, sometimes by the name of Elias. And such an inference, if made, would not be in contradiction to or in variance of the grant. A grant is made to a person, not to a name. (11 Ga. 282.)

These interrogatories, therefore, were admissible for the purpose of showing that the Eli Nicks of the plaintiff's deed, and the Elias Nicks of the grant, were one and the same person— a person who was known by the one name, as well as by the other but they were not admissible, for the purpose of showing that the true drawer was a man named Eli Nicks; and that by mistake, the grant was issued to another man named Elias Nicks.

The Court, therefore, should have admitted them.

[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 hand-writing, or the identity of the writer. (Phil. Ev. note 915. 1 Green. Ev. §578.)

The Court should have told the Jury, therefore, that they might compare the signatures of the two deeds, one signed Eli Nicks, the other Elias Nicks, to see whether the signatures were both made by the same person, for these deeds were properly in evidence; and if made by the same person, the older ought to have prevailed.

The decision of these questions makes it unnecessary to decide the others.

There ought to be a new trial.

Horshaw vs. Lessee Cook.

No. 55.-SIDNEY HORSHAW, plaintiff in error, vs. THE LESSER of WILLIAM Cook, defendant in error.

[1.] The mere absence of his Counsel, with the title papers of a defendant, is not a sufficient ground for a continuance.

Ejectment in Union Superior Court. Tried before Judge IRWIN, April Term, 1854.

Horshaw, the defendant below, moved a continuance in this case, on the ground that A. J. Hansell, Esq. was employed for the defence, and had in his possession the title papers for the lot of land in dispute, under which defendant held, showing title. out of the lessors of the plaintiff; and that he had promised to attend the Court with the papers, without Providential hindrance; that he did not attend the Court regularly but frequently; and the cause of his absence was not known. W. H. Stansell, of Counsel for defendant, farther stated, in his place, that he conversed with General Hansell a short time previous to the Court, and that he had spoken of certainly attending the Court. The Court over-ruled the motion, and this decision is assigned as error.

MILNER, for plaintiff in error.

J. W. H. UNDERWOOD, for defendant.

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

This Court has decided, and upon sound principles, that the mere absence of Counsel is not a sufficient ground for the continuance of a cause. See Allen vs. the State, (11 Ga. R. 85) and the cases there cited. It has recognized the absence of the leading Counsel from Providential cause, as sufficient to authorize a continuance; but nothing short of this. It does not appear that Ger.eral Hansell was even the leading Counsel

Thompson et al. vs. McCulloch.

in this cause; and it is to be presumed he was not, or it would have been shown; nor does the cause of his absence appear.

The fact that he had defendant's title papers with him, cannot help the showing. The law required the defendant to have these papers at Court, that he might be in readiness for trial. It was at his own risk, therefore, and manifested a want of proper diligence, when he permitted another, especially one who was not his leading Counsel, to keep them in his possession, and away from Court.

Let the judgment be affirmed.

No. 56.-SARAH A. THOMPSON and others, plaintiffs in error, v8. JOSEPH P. MCCULLOCH, defendant in error.

[1.] A bill cannot be sustained, which seeks to charge the defendant, as administrator at the same time denying that he is such; leave will be granted to the complainants, however, to amend, by striking out that portion of the bill which controverts the validity of the trustee's appointment.

In Equity, in Walker Superior Court. Decision by Judge JOHN H. LUMPKIN, May Term, 1854.

Sarah A. Thompson and others, the distributees and heirs at law of William Thompson, deceased, filed their bill against Joseph P. McCulloch, as administrator on the estate of William Thompson, alleging that he had, through a third person, purchased valuable real estate at his own sale, for a small price, and praying to set aside the sale, and for a general account.

After answer, complainants amended their bill, alleging that the defendant never was legally appointed administrator on said estate, and setting forth the order of his appointment, and showing that the requisites of the Statute had not been

16 528 99 584

Freeman, adm'r, vs. Flood.

complied with, and praying that the appointment might be declared null and void.

To the bill as amended, defendant demurred for want of Equity. The Court sustained the demurrer and dismissed the the bill, and this decision is assigned as error.

AKIN, for plaintiff in error.

TRIPPE, for defendant in error.

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

[1.] The bill, as amended, cannot be sustained. As at first framed, it made a clear case for Equity. As amended, the complainants, by their own showing, have a full, complete and adequate remedy at Law. Consequently, it is not a case of election; for by electing to abide by the amendment, they elect to go out of Court.

The judgment below, then, must be affirmed, with leave to the parties to strike out the amendment and stand upon the original bill. Upon the doing of which, within a reasonable time, it is the direction of this Court that the order dismissing the bill be set aside, and the cause re-instated.

No. 57. JOHN M. FREEMAN, administrator of Jas. W. Aaron, plaintiff in error, vs. LEVISA FLOOD, defendant.

[1.] No particular form of words is necessary to create a separate estate in a married woman. It is enough, if there be a clear intention to exclude the marital rights of the husband. Subject to this rule, the words "I give to my daughter V W two negroes, to-wit: Sally and Dicey, to remain in her possession, and for her special use and benefit during her natural life, and at her death, to go to her children forever, and to no other use what