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Anderson et al. vs. The Darien Bauk.

No. 71.-JOHN R. ANDERSON, et al. plaintiffs in error, vs. THE DARIEN BANK, defendant.

[1.] The writ of error and citation need not and should not be filed, until the filing of the original notice, with entry of service thereon.

[2.] The writ of error will be dismissed if no original notice of the signing and certifying of the bill of exceptions is filed, as required by the Statute, nor will an acknowledgment by the defendant's counsel, of the service of a copy notice of the filing of the bill of exceptions, be considered a compliance with the Statute.

[3.] The writ of error and citation, if without date, may be amended, if there is anything in the record to amend by.

Motion to dismiss the writ of error.

ROCKWELL, for the motion.

CONE, contra.

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

A motion is made to dismiss this writ of error upon three grounds:

1st. Because no writ of error, with the citation thereto annexed was filed, with the Clerk of the Superior Court, at the time of tendering the bill of exceptions.

2d. Because no notice was filed of the signing and certifying of the bill of exceptions as required by law. And

3d. Because the writ of error and citation are without date. [1.] Our attention being called, for the first time, to the phraseology of the twenty-first rule, we perceive that it is inaccurately worded. It would be absurd to require the writ of error and citation to be filed with the Clerk of the Superior Court, at the time of tendering the bill of exceptions. The writ of error recognizes on its face the fact, as one which has already transpired, that "the bill of exceptions has been signed and certified." The writ of error and citation should be filed with the Clerk of the Superior Court, when the original notice is returned with the entry of service thereon. And such is the construction which we put upon the twenty-first rule.

12.] The 4th section of the Act, establishing this Court, pro

Anderson et al. vs. The Darien Bank.

vides, "that when the bill of exceptions shall be signed and certified by the Judge of the Superior Court, notice thereof shall be given to the adverse party, or his counsel, within ten days after the same shall be done, and shall be filed in the Clerk's office immediately thereafter and on a copy of such notice being served by the sheriff, constable, or an attorney of the Superior Court, and filed in the Clerk's office with the bill of exceptions, it shall be the duty of the Clerk of the Superior Court below, to certify and send up to the Supreme Court, a complete transcript of the entire record of the cause below, duly certified, under his hand and seal of office, and also the bill of exceptions, within ten days after he shall have received the original notice with the return of service thereon." 1 Kelly, p. vii.

case.

It is conceded that no notice whatever has been filed in this As a substitute therefor, the plaintiff in error relies on an acknowledgment endorsed on the bill of exceptions by the attorney of the adverse party, that he had been served "with a copy of the notice of the filing of the bill of exceptions." This is no compliance, either literally or substantially, with the requirement of the Statute. A party may acknowledge service of the original notice, still the notice must be filed. The Clerk is commanded to transmit the record and bill of exceptions, within ten days after he shall have received the original notice with the return of service thereon. It has been repeatedly held by this Court,. that if the Clerk failed to forward the papers within the ten days, it was fatal to the cause. The filing of the notice is not only necessary, therefore, to authorise the Clerk to certify and send up the record, and to make him responsible for his default to perform this duty, but it is likewise indispensable to us,to enable us to determine, by inspection, whether or not he has complied with the Act.

There is, however, a still more fatal objection to this acknowledgment. The notice referred to in the Statute, is of the signing and certifying of the bill of exceptions. The acknowledgment of service is of a copy of the notice of the filing of the bill of exceptions-quite another and a different matter. Upon this terial discrepancy, we should be compelled to sustain

tion.

[3.] The omission to date the writ of error and citat be amendable, if we had anything to amend by. But

Anderson et al. vs. The Darien Bank.

information as to the time when the notice was filed, none, in truth, ever having been filed, we are unable to supply this defect.

We regret exceedingly to dispose of any case, especially one of so much importance, except upon its merits. We are, however, the mere agents of the law. How many devises of real estate have failed, for lack of three credible witnesses! There is not a day in Court, when important interests are not adjudicated upon what would seem to be mere technical objections. The law prescribes the mode in which even justice itself shall be dispensed to the citizen. And if he neglects or refuses to comply with these forms, he cannot reasonably complain if the door is closed against him.

Writ dismissed.

INDEX.

ACCOUNT.

See Equity, 3.

ACTS OF THE LEGISLATURE.

1. An Act, to be in derogation of common right, must be
confined in its provisions to a particular individual, or
set of men, separate and apart from the rest of the com-
munity. Flint River Steamboat Co. vs. Foster,

2. The Legislature being the Sovereign power in the State,
while acting within the pale of its constitutional competen-
cy, it is the province of the Courts to interpret its man-
dates, and their duty to obey them, however absurd or
unreasonable they may appear.
Ibid.

See Augusta, 2. Constitution, passim.

See Will, 1.

ADEMPTION OF LEGACY.

ADMINISTRATORS AND EXECUTORS.

1. The returns of an administrator, executor, or guardian,
are only prima facie evidence in their favor, and may
be impeached, the burden of proof being on the party
impeaching them. Brown vs. Wright,

2. At Common Law, an administrator de bonis non, is enti-
tled only to the goods and effects which remain unad-
ministered, in specie, and to the debts due the intestate
unpaid. Oglesby vs. Gilmore, -

194

29

56

3. A sale of negroes under an order of the Court, is an ad-
ministration as to them, which will charge the adminis-
trator and his sureties, and vests the note taken for such
sale in the administrator.

Ibid.

4. If such note is sued on by the administrator as such, it
is mere descriptio persona.
Ibid.

5. A judgment recovered in his name is a debt due to him,
upon
which suit may be brought in his own name.

Ib.

6. Under the Act of 1845, the administrator de bonis non
can call the removed administrator to account. Ibid.

7. Where a fund is in Court, raised upon a judgment in
favor of an administrator, upon which he sets up a claim
for advances, the Court cannot, on motion, order it paid
to the administrator de bonis non, but he must resort to
a bill in Equity. Ibid.

8. In the distribution of assets of an intestate, judgments
rendered against the intestate, rank next to debts due
the public. Davis et al. vs. Smith et al.

9. Judgments obtained against the administrator, rank no
higher than the demands on which they are founded. Ib.

10. Promissory notes are upon the same footing with
"bonds and other obligations." Ibid.

11. A covenant of warranty, when broken, is a specialty,
and the damages are to be paid rateably with bonds and
other obligations. Ib.

12. A surety who has paid the debt of his principal is
subrogated to all the rights of the payee in the distribu-
tion of assets. Ib.

13. An administrator in Georgia can neither sue nor be
sued in another State; if, therefore, he is notified to ap-
pear and defend an action of ejectment, brought in the

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