58

*condemnation money, within three | in all such cases, either party may, within days after judgment &c.—But no stay four days after the adjournment of the of execution shall be allowed, after an ap- Court, in which such verdict was obtained, peal trial, for a longer term than twenty enter an appeal, in the Clerk's office of such days; in which case, the security on the ap- Court, (as matter of right) and if such verpeal, together with the security for the dict shall be obtained in the Inferior Court, stay of execution, shall be liable for the it shall be the duty of the Clerk thereof to debt and costs." Now it is contended, by transmit such appeal, to the Clerk of the the counsel on the part of the plaintiff in Superior Court, of the County in which such execution, that, inasmuch as the above verdict shall be obtained, who shall enter Statute, regulating appeals in Justice's the same on the appeal docket, which apCourts, does not, on its face, prescribe, in peal shall be admitted and tried by a Special terms, the manner and form, in which such Jury: Provided, the person or persons, so appeal is to be entered, or the security appealing, shall, previous to obtaining such given, for the eventual condemnation appeal, pay all costs, which may have money; therefore, the Magistrate, in the arisen on the former trial, and give secuCourt below, had the right to enter the rity, for the eventual condemnation money; same, and take the security for the even-except executors or administrators, who tual condemnation money, in any manner shall not be liable to give such security.”— and form, he pleased. The first answer, Prince D. 426. The Judges of this Court, which I have to make to this proposition, in giving a construction to the above Statis that so thought not the Magistrate him- ute, have uniformly held, that the act of self, in the Court below, when he wrote the appeal, as well as the act giving security name of John Whelan, as the security of for the eventual condemnation money, as William Patterson, on appeal, on the face required by the Statute, are acts of record, of his docket. For, by that act, he has which must appear on the minutes of the treated the security, required by the Statute, Court; and, by a rule of this Court, they as a security of Record; and thus given us have prescribed the form of a recognizance, his own exposition and construction of the under seal, which is to be given, before Statute. That this exposition and construc- such appeal can be legally perfected. And tion of the above Statute is the correct one, such is the uniform practice, in this Court. will, I think, be manifest, if we, for a mo- The cotemporaneous exposition of Statutes ment, consider the nature and character of is always a safe rule of construction, to an appeal, the spirit and language of the apply to similar Statutes, in pari materia. above Statute, regulating appeals in Jus- And although it would not be required, that tice's Courts, and the cotemporaneous con- an appeal, entered in a Magistrate's Court, struction of other Statutes, in pari materia, to make it legal, should, verbatim et literaand the practice under them. And first, tim, follow the form, prescribed in the rule what is an appeal? Is it not the act of a of this Court; still, I apprehend, it should party on record, where by a judgment appear, on the face of the record, in the of a Court of Record, upon security be- Court below, that an appeal was demanded, ing given, by him, as under the above by the dissatisfied party, and that a recogStatute, for the eventual condemnation nizance, under seal, for the eventual conmoney, is permitted to transfer, or lift demnation money, had been taken and up, that judgment, from an inferior acknowledged, by the security, before the to a superior tribunal, either for re- magistrate, as matter of record. versal or affirmance? If so, is it not manifest, both upon reason, and common Law principles, that the act of appealing, as well as every other act, which is required by the Law, in order to perfect that appeal, must, of necessity, be of as high a character and dignity, as the act, which is appealed from; or, in other words, that they must be matter of record? Now, it is true, that the Statute, regulating appeals in Justice's Courts, does not, in terms, prescribe the form, in which the security, upon an appeal from the judgment of the Justice to that of a Jury, shall be taken by him, or entered. Neither does the Statute, regulating appeals to this Court, from the Inferior Courts, or from the verdict of a Petit Jury to that of a Special Jury, 59 in this Court. *The language of the Statute, regulating appeals to this Court, is almost precisely the same, with that regulating appeals, in a Magistrate's Court, from the judgment of the Justice to that of the Jury. It is as follows: "That in case either party shall be dissatisfied with the verdict of the Jury; then, and

The security, required for the eventual condemnation money, under the above Statutes, regulating appeals in our own Courts, is precisely analogous to that security, which is required under the English Stat60

utes, for the prosecution of a writ of error: for an appeal is but another name for the writ of error. By the Statute 3 James 1, Ch. 8, made perpetual by the Statute 3 Charles 1, Ch. 4, Sec. 8, to restrain unnecessary delays of execution, it is provided, that, in actions thereon specified, no writ of error shall be allowed, unless the party, bringing the same, with two sufficient securities, shall first be bound, unto the party, for whom the judgment is given, by recognizance, to be acknowledged in the same Court, in double the sum to be recovered by the former judgment, to prosecute the said writ of error, to effect, and also to satisfy and pay, if the said judgment be affirmed, all the damages and costs, adjudged upon the former judgment, and all costs and damages, to be awarded, for the delaying of the execution; and so absolute and unconditional is this recog

nizance held in England, that it is an es- | 49, 50; Reed v. Van Ostend, 1 Wend. 424; tablished rule, there, that such bail cannot Blood v. Goodrich, 9 Wendel, 68; Hunford divest themselves of their responsibility, v. McNair, 9 Wendel, 54; Blood v. Goodby surrendering their principal, to the rich, 12 Wendel, 535; Cooper v. Rankin, 5 plaintiff in error, or be relieved from that Binn. 613; Gordon v. Bulkley, 14 Searg. & responsibility, upon the ground that their Rawle, 331; Harrison v. Jackson, 7 Term principal has become bankrupt, pending R. 203. Admitting, then, that a security to the appeal.-3 Blac. Com. 410, note (4); an appeal can legally delegate, to another, Petersd. on Bail in Error, 470. That such the power and authority to subscribe his also is the nature and character of the se- name, as such security, to a recognizance curity, required to be given under our own for the payment of the eventual condemnaStatutes, in cases of appeal, for the eventual tion money, which is an act to be performed condemnation money, and such their re- of record, and under seal-which I exceedsponsibility, there cannot, it seems to me, ingly doubt-the question arises: can that be a doubt; and especially so, if we refer authority be delegated, by parol, in the comto the provisions, as contained in the sec- mon Law acceptation of that term; and will ond section of the Act of 20th December, the act, thus done, bind the security? From 1826.-Prince D. 46. I think, therefore, the best reflection, which I have been enfrom what has now been said, it will appear abled to give this question, I am of opinion, sufficiently manifest, that the proposition, that such power or authority cannot be delas contended for by the counsel, on the part egated, by parol; but, if delegated, must be of the plaintiff in execution, cannot be delegated by writing, under seal, or the act maintained, even in a Justice's Court, under of the agent will not bind his principal. any proper construction of the Statute, reg- The authority, therefore, given in the presulating appeals in that Court. I have dwelt ent case (if such authority in fact ever was longer on this point, than, possibly, ne- given) by the defendant, Whelan, to the cessity may have required; but I have Magistrate, James H. Wade, being, accorddeemed it important, that we should dis-ing to the testimony of said Wade, a vertinctly ascertain the nature and character bal, and not a written, authority, under of that security, which is required to be seal, in my opinion, vested in him no given, for the eventual condemnation power, to perform the act, which he apmoney, in cases of appeal, under the Stat- pears to have done, so as legally to bind ute, that we may be the better prepared, to the said Whelan, as a security on said apdecide the question, whether, in point of peal, for the eventual condemnation money; Law, a power or authority, to sign the name and consequently, as it appears to of another, as a security upon an appeal, 62 *this Court, the presiding Magistrate can be delegated by parol, so as to make the in the Court below, in overruling the act valid and binding, upon the security? affidavit of the said Whelan, as to the The decision of this question will determine illegality of the execution, which was issued the point, whether the Magistrate, in the against him, as security on said appeal, and Court below, when he overruled the defend- sustaining said execution, has committed ant's affidavit of illegality, and sustained error in Law, and his judgment ought, the execution, which had been issued therefore, to be reversed. against him, as a security on the 61 *appeal of Owen Sherron, has, or has not, committed error, in Law? Now it is true, that an agent, or attorney, may ordinarily be constituted, and appointed, by a parol authority, in the broad sense of that term, at the common Law-that is, he may be constituted such, by a verbal declaration, or by a writing not under seal, or by acts and implications. But agencies of this character are exclusively confined, upon legal principles, to commercial transactions, and others of a like character. There is, however, to this general rule, one exception of great practical utility. And it is this: That whenever any act of agency is required to be done, in the name of the principal, under seal; the authority to do the act must be conferred, by an instrument under seal; or, otherwise, the act done cannot be held valid, and binding upon the principal. This exception has its foundation, in the strict principles and solemnities, required. Personal Property-Act to Quiet Possession-Strict

by the common Law, in regard to the transfer of real estate, and the creation of formal obligations and covenants; and applies, as it seems to me, with all its force, to the facts of this present case.-Story on Agency

It is therefore ordered, that the judgment of the Court below, in the case of Owen Sherron v. John Whelan, security of William Patterson, overruling the affidavit of illegality of said Whelan, be, and the same is hereby, reversed; and the said affidavit of illegality is hereby sustained, with costs. And it is further ordered, that the Clerk of this Court do certify to the said Leonidas Wylly, Esq. and James H. Wade, Esq. the judgment of this Court, in the premises.

McAllister & Cohen, for Plaintiff in
Error.
T. E. Loyd, for Defendant in Error.

63

*Francis H. Welman, Pl'ft in Error, v. Harris & Reilly, Def'ts.

January Term, 1843.

Construction.-The Act of 1821. "to quiet the possession of personal property," is to be construed strictly.

2. Same Same-Voluntary Delivery-Recovery.— Property, voluntarily delivered to another person,

cannot be recovered back from him, by the proc- | 1842-who proceeded to hear testimony, in ess, provided for in this Act. reference to said complaint.

In obedience to the writ of Certiorari, issued in the above cause, the Magistrate, in the Court below, to whom it was directed, makes the following return of his proceedings therein:-That, on the 1st July, 1842, Philip Reilly, one of the firm of Harris & Reilly, of the City of Savannah, made, before him, the following affidavit, under which he prayed a warrant, against the said Francis H. Welman, as also for the seizure of certain seven bales of cotton, which was granted him, upon said affidavit. -That said affidavit and warrant are in the following words:

trate, is as follows:-Walter Harris, the The testimony, as returned by the MagisClerk of Harris & Reilly, being sworn, states, that he is the Clerk of Messrs. Harris & Reilly; that he knows Harris & Reilly have seven bales of Upland Cotton, which were stored with Mr. Welman. One bale, marked I. Wicker, re-entered 21st May last. Five bales, H. H. and one bale, J. R. were stored, 25th May last, at the tice in the newspapers, of the dissolution of store of Welman & Waugh. Has seen nothe co-partnership of Welman & Waugh, but does not know of such dissolution, of his own knowledge. Carried order of Harris & Reilly, on Mr. Welman, 27th June last, and demanded the seven bales of cotton. Demanded a bill of storage, and this cotton. Both were refused. As well as witness recollects, he, Mr. Welman, would not deliver the cotton, nor make out the bill. Harris & Reilly had a claim on the cotton. They were in the habit of storing cotton there. The store, (where the cotton was

State of Georgia-Chatham County. Before me, Robert Raiford, a Justice of the Peace for said County, personally appeared, Philip Reilly, of the firm of Harris & Reilly, of the City of Savannah, who, being duly sworn, deposeth and saith, that certain personal chattels, to wit: Five round bales of Upland Cotton, marked "H. H." one round bale of Upland Cotton, marked "J. R." and one other bale of Upland Cotton, marked "T. Wicker," have been recently 65 in the quiet and peaceably acquired possession of the said Harris & Reilly, have disappeared, and without their consent, and as deponent believes, have been taken possession of, and detained, by one Francis H. Welman, under some pretended claim, and without lawful warrant or authority. And that said Harris & Reilly, bona fide, claim an interest in the said seven bales of cotton. Wherefore they pray that a warrant may issue, as well for the apprehension of the said Francis H. Welman, as for 64 the seizure *of the said seven bales of cotton, and such further relief as the Law directs. Sworn to before me,

this 1st July, 1842.

stored) was on the top of the bluff, in the City of Savannah, *and remote from any wharf. Mr. Welman, as well as witness recollects, refused to deliver the cotton, until a former bill (of Harris & Reilly) for storage, was paid. The cotton, for which this old bill had accumulated, had been delivered some time, and had been taken away; the last of which was on the 21st May last. The one bale, re-entered 21st May, was of a lot of about one hundred bales. That bale was rejected, as false packed, or for some other cause, by the purchaser. The bill of storage, up to the 21st May, was rendered. The other six bales formerly belonged to W. Wray; but now, the whole seven are the property of Harris & Reilly. The bill of the re-entry of the one Philip Reilly. bale was rendered. The cotton was ordered to Mr. Welman's store, by witness. Harris & Reilly do a commission business, so far as the selling of cotton. The cotton was

placed in the store of Mr. Welman, by the
consent of Harris & Reilly. The cotton was
usually turned in and out, by Mr. Welman.
Harris & Reilly did offer to settle their bill.
Witness tendered, in specie, for the storage
of the seven bales.
settle with Mr. Welman, if he would settle
Mr. Reilly offered to
Welman & Waugh's acceptance, in favor
of Harris & Reilly. Witness told Mr. Wel-
man, that Harris & Reilly would settle the

R. Raiford, J. P. State of Georgia-Chatham County. To any lawful constable of said County:Whereas, it is set forth, in the foregoing affidavit, that certain seven round bales of Upland Cotton have been recently in the quiet and peaceably acquired possession of Harris & Reilly, have disappeared without their consent, and have been taken possession of, and detained, by one Francis H. Welman, under some pretended claim, and without lawful warrant or authority; These are therefore to command you, to apprehend the said Francis H. Welman, if the said The acceptance was not due, on seven bales of cotton are to be found in his the 21st May. As far as witness recollects, possession, and bring him, with the said the acceptance was in the way of a settlecotton, before me, or some other Magis-ment, and fell due 25th June, and was not trate of said County, that proceedings may be had, in this matter, as the Law directs, in such cases made and provided.

Given under my hand and seal, this 1st day of July, 1842.

R. Raiford, J. P. [L. S.] Under this affidavit and warrant, the said Francis H. Welman was arrested, and brought before said Magistrate, 5th July,

old bill.

Reilly, of the 27th June, was because they paid. The demand, made by Harris & wished to remove the cotton.

Court to state what was the usage among Joseph Cumming, Esq. (called by the merchants, in such cases,) stated, that there is no doubt, that all property is liable, for its own storage. Is well acquainted with the history of the case before the Court. Knows of no case, like the present

one. In general, when an article is turned the return of such warrant, the Judge or out of store, it is considered a delivery. If Justice shall hear evidence, as to the quesI turn out one hundred bales of cotton, and tion of possession, in a summary way, and one is returned, by the act of the first party; cause the said negroes, or other chattels, I think it is liable for the storage of the to be delivered over to the party, from whole. Has often known cotton detained, whose possession the same were violently to pay a former bill of storage. or fraudulently taken, or enticed away, or from whom the same absconded, or in whose vided such party shall, before such Judge or Justice, enter into a recognizance, with good and sufficient security, in double the amount of the value of such negroes, or other personal property, and the hire claimed, if any, to cause the said negroes To this judgment of the Court be- to be produced and forthcoming, to answer low, the defendants' attorney took the any judgment, execution, or decree, that following exceptions, in writing, which may be had, issued, or made, upon such were overruled, by the said Court; and suit, or action, at Law, or in Equity, as having complied with the Statute, applied the opposite party may commence, or prosto this Court, for the present writ of Cer-ecute, within the next four years, touching tiorari, which was granted him. the same; and such recognizance shall be returned, by such Judge or Justice, to the next Superior Court of the County, where the same is taken, to be transmitted to the Court where such suit or action may be commenced, and the securities upon such recognizance shall be bound and liable, for the eventual condemnation money, and execution shall issue, against them, in such manner, as against securities on appeals."

This was all the testimony, before the Court, upon the trial of this writ of posses-peaceable possession they last were; Prosion; and upon this testimony, the Magistrate, in the Court below, ordered and directed, that the said seven bales of cotton be forthwith delivered to the complainant, and that the defendant be discharged, on the payment of costs.

66

1. That said decision is contrary to Law: because the evidence disclosed the fact, that the cotton had been placed in the possession of the said Francis H. Welman, by the plaintiffs; and therefore, that he was the last, in the quiet and peaceably and legally acquired possession thereof.

2. That said decision is contrary to Law, because the said Francis H. Welman had a lien on the same, for storage.

3. Because the said decision is contrary to Law and evidence.

This case brings up for consideration, and construction, the provisions of the Act of the 25th December 1821, "An Act, the more effectually to quiet and protect the possession of personal property, and to prevent taking possession of the same by fraud or violence."-Prince D. 449-50.

This Statute, being one manifestly made in contravention of common Law principles and proceedings, must be construed strictly: and especially so, as the proceeding, under it, to a certain extent, partakes of a criminal nature. The party injured, therefore, must not only bring himself strictly within some one of the cases, mentioned in the statute, but he must also support his complaint, at the hearing, by competent and sufficient testimony, or the Judge, or Justice, before whom the complaint is made, has no jurisdiction, under the Statute, over the subject matter in dispute. There are but two classes of cases, embraced within the act; the first is, where a person, bona fide claiming a title to, or interest in, a negro, or negroes, or other personal chattel, or the possession thereof, declares, under his oath, that such negro or negroes, or other personal chattel, have been taken, enticed, or carried away, by fraud, violence, seduction, or some other means, (of like

The first section of this Act declares, "That upon complaint, made on oath, by the person injured, his agent or attorney, to any Judge of the Superior, or Justice of the Inferior Courts, or any Justice of the Peace, that any negro, or negroes, or other personal chattels, have been taken, enticed, or carried away, by fraud, violence, seduction, or other means, from the possession of such deponent; or that such negroes, or other personal chattels, having been recently in the quiet and legally and peaceably acquired possession of such deponent, have absconded, or disappeared, without his or character,) from his possession. The her consent, and, as he or she believes, 68 *second is, where a person, bona have been harbored, received, or taken posfide, claiming title to, or interest in, session of, by any person or persons, a negro or negroes, or other personal chatunder some pretended claim, or claims, tel, or the possession thereof, declares, unand without lawful warrant or authority; der his oath, that such negroes, or other and that the said deponent, or the person for whom he is agent or attorney, bona fide, claims a title to, or interest in, said negroes or other chattels, or the possession thereof; that it shall be the duty of such Judge, or Justice, to issue a warrant, as well for the apprehension of the party so seizing, taking, enticing, receiving, 67 harboring, obtaining, or having possession of, such negroes, or other chattels, as for the seizure of such negroes, or other chattels, themselves -and upon

personal chattels, having been recently in his quiet and legally and peaceably acquired possession, have absconded, or disappeared, without his or her consent, and, as he or she believes, have been harbored, received, or taken possession of, by the person, against whom the warrant is prayed, under some pretended claim or claims, and without lawful warrant or authority. By a reference to the affidavit, which has been made in the present case, and the warrant issued thereon, it appears, that it is under