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Hoyt, 40 Id. 360; Dupré v. Richard, 43 Id. 214; Cahill v. Kalamazoo Muh Ins. Co., 43 Id. 457, and note.

WHETHER AMENDMENT ALLOWABLE, TRUE CRITERION FOR DETERMININO is, whether proposed amendment is another cause of controversy or the same contract or injury. The principal case is cited on this point, in Pearson v. Reid, 10 Ga. 582. See, on this subject, McVicker v. Beedy, 50 Am. Dec. 666; Carturight v. Chabert, 49 Id. 742, and note citing the prior cases in this series.


[8 GEORGIA, 143.) ORDER Made by Court of COMPETENT JURISDICTION, and remaining in full

force, can not be treated by any court as a nullity. JUDGMENT OF COURT Wucu uas No JURISDICTION of cause is void. WHERE COURT HAS JURISDICTION, BOTH OF CAUSE AND PARTIES, and pro

ceeds erroneously, the judgment, notwithstanding the error, is binding,

until it is vacated or reversed. Ix PROCEEDING OF ILLEGALITY which resists execution, the rightfulness of

the judgment is conceded, and can not be attacked. Levy and illegality. One W. J. Bollock had a fi. fa. issued upon a judgment obtained by him against R. K. Evans, the maker, and J. P. Evans and Berry Rodgers, the indorsers, of a promissory note. Rodgers paid the amount. In 1842 Rodgers obtained an order of control under the act of 1840, which authorized the issuance of such order only to enable a surety who had discharged an execution to control it against a co-surety to enforce contribution. The order of control states that, as it appears to the court that Rodgers, the last indorser, has paid the amount of the judgment, and that J.P. Evans, although apparently first indorser, is in fact the principal debtor; the court therefore orders that Rodgers have the control of said judgment, to the full amount thereof, against J. P. Evans, to reimburse himself as surety, and against R. K. Evans (the apparent maker and real indorser), to one half only of said amount. The fi. fa. upon this judgment was levied upon property of J. P. Evans, who thereupon filed illegality. Rodgers objected to the illegality, upon the principal ground that, by the order of the superior court in 1842, the control of the judgment had been given to said Rodgers, and that said order was still in force, unrevoked, and made by a court of competent jurisdiction. The court, however, sustained the illegality, upon the ground that “said Rodgers having paid said fi. fa., he was not entitled to control the same against said J. P. Evans." Rodgers excepted, and brought error.

Stubbs ana Lester, for the plaintiff in error.
Powers (representing McDonald), for the defendant.

By Court, LUMPKIN, J. The order of November, 1842, declaring John P. Evans the principal debtor in the note which Berry Rodgers was compelled to pay, and giving to Rodgers, as indorser, the use and control of the judgment, to reimburse himself as security, certainly entitled him to the execution, which he has caused to be issued thereon, and which has been arrested by the affidavit of illegality, interposed by the defendant; and being passed by a court of competent jurisdiction, and remaining in full force, we know of no authority in this, or any other court, to treat it as a nullity. On the contrary, the presumption is omnia rite acta. Any other course would overturn the landmarks of property.

In Rose v. Himely, 4 Cranch, 278, it is said, if a judgment be merely irregular, the courts of the country pronouncing the sentence are the exclusive judges of that irregularity, and their decision binds the world. So in Kempe's Lessee v. Kenedy, 5 Id. 186, the supreme court of the United States say: “The judgment it gave was erroneous, but it is judgment, and until reversed it can not be disregarded.” In Windham v. Windham, 3 Ch. Rep. 12, an indirect attack was made upon the decree of a court of equity, ordering a sale—whereupon the lord keeper remarked: “You blow up with gunpowder the whole jurisdiction, if such a purchaser is not protected.” We take this to be the true distinction, and to be well settled by the authorities.

A judgment of a court which has no jurisdiction of the cause, is entirely void. But where the court has jurisdiction both of the cause and the parties, and proceeds erroneously, the judgment, notwithstanding the error, is binding, until it is vacated or reversed: Gorrill v. Whittier, 3 N. H. 269; The Case of the Marshalsea, 10 Co. 76; Elliott v. Peirsol, 1 Pet. 340; Smith v. Shaw, 12 Johns. 256, 267; Latham v. Edgerton, 9 Cow. 227; Brown v. Compton, 8 T. R. 424; Hecker v. Jarret, 3 Binn. 410; Prescott v. Hull, 17 Johns. 290; Holmes v. Remson, 20 Id. 268 (11 Am. Dec. 269]; S. C., 4 Johns. Ch. 460 [8 Am. Dec. 581), and the cases there cited; Homer v. Fish et al., 1 Pick. 435 (11 Am. Dec. 218]; Saxton v. Chamberlain, 6 Id. 422; Minor v. Walker, 17 Mass. 237. See also Livermore v. Herschell, 3 Pick. 33; Whitcomb v. Williams, 4 Id. 228; Adams v. Pearson, 7 Id. 341 (19 Am. Dec. 290); New England Bank v. Lewis, 8 Id. 113.

Without denying the validity of this order, we held, when the


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same parties were before us in August, 1846, Evans v. Rodgers, 1 Ga. 463, that neither the order, nor any of the numerous statutes which had been passed for the relief of securities, authorized the capias ad satisfaciendum, which was first issued at the instance of Rodgers; and we characterized the November order itself, on that occasion, as a “most anomalous” proceeding. And it is due to the circuit judge, who rendered the judgment against the fi. fa. which we are now called on to review, to state, that he was probably misled by the reasoning of the court in that case, to pronounce the opinion which he did in the present

Still, it was not our intention to assume the power to vacate that order, however in properly and irregularly granted.

Especially, we apprehend, can this not be done, in this proceeding of illegality, the object of which is, not to be delivered against an unjust judgment, by setting it aside, but conceding the rightfulness of the judgment, it resists the execution, on account of some injustice in the party who seeks to enforce it.

The judgment below must, therefore, be reversed.


JUDGMENT OF COURT HAVING JURISDICTION OF CAUSE AND PARTIES, BINDING UNTIL SET ASIDE.-As authority to this effect, the principal case is. cited in Bradwell v. Spencer, 16 Ga. 580; Crutchfield v. The State, 24 Id. 337; Robinson v. Lane, 19 Id. 397; Duer v. Thweatt, 39 Id. 581; Vickery v. Scott, 20 Id. 798. The last case, after citing the principal case, declares that if the above principle be true of the judiciary, it applies with equal effect to the executive, in respect, at least, to grants of real property by patent. The cases on this subject in this series are collected in the note to Horner v. State Bank of Indiana, 48 Am. Dec. 355. See also Tarbox v. Hays, 31 Id. 478, and note; Cochrane v. l'an Surlay, 32 Id. 588, and note; and Smith v. Tupper, 43 Id. 483. A judgment is presumed to be regular and proper when it is obtained in a court of competent jurisdiction: Carter v. Jones, 49 Id. 425; Horner v. State Bank of Indiana, 48 Id. 355, and note. But an erroneous judgment may be reversed: Hale v. Crowell, 50 Id. 301; Fleming v. Riddick, Id. 119.

JUDGMENT CAN NOT BE COLLATERALLY ATTACKED where the court had jurisdiction of the subject matter of the action in which such judgment was delivered. The following authorities to this effect are found in this series: Ocean Ins. Co. v. Francis, 19 Am. Dec. 549; Fridge v. State, 20 Id. 463; Skinner v. Moore, 30 Id. 155; Tarbox v, Ilays, 31 Id. 478; Banister v. Hig. ginson, 32 Id. 134; Fisher v. Bassett, 33 Id. 227; Jackson v. Astor, 39 Id. 281; Swiggart v. Harber, Id. 418, and note; Louber v. Wilmer's App., 42 Id. 302; Thacker v. Chambers, Id. 431; Sutherland v. De Leon, 46 Id. 100; Horner v. State Bank of Indiana, 48 Id. 353. As to when a judgment is impeachable by a stranger in a collateral proceeding, see Down: v. Fuller, 35 Id. 395, and Nason v. Blaisdell, 36 Id, 331, and note.

JCDGMENT OF COURT HAVING NO JURISDICTIOX is MERE NULLITY.–The principal case is cited on this point in Mobley v. Molley, 9 Ga. 230; Robinson V. Lane, 19 Id. 397; Vickery v. Scott, 20 Id. 798. See Horner v. State Bank

of Indiana, 48 Am. Dec. 355, and note collecting the prior cases in this series; Smith v.

Tupper, 43 Id. 483. IN THE PROCEEDING OF ILLEGALITY, the validity of the judgment upon which the execution is based can not be attacked. The principal case is relied upon as an authority to this effect, in McLaren v. Beall, 50 Ga. 635; Brown v. Wilson, 59 Id. 606; Hood v. Parker, 63 Id. 512; Greene v. Oliphant, 64 Id. 567.



MITTED IT IN EVIDENCE in the courts of Virginia, is to be given the same faith and credit, when offered in evidence in the courts of this state,

under the act of congress of the twenty-sixth of May, 1790. CERTIFICATE OP PRESIDING MAGISTRATE, when annexed to the records or

judicial proceedings of the courts of any state, under the act of congress of the twenty-sixth of May, 1790, should affirmatively show upon its faco of what particular court he is the presiding magistrate. Therefore it is not sufficient for the presiding magistrate of the county court of Jeck. lenburg county to certify that he is the presiding magistrate of the


shown to come from the hands of an individual properly entitled to the custody thereof, need not be proved, although the subscribing witnesses


PROPERTY, introduced against his vendee, should appear to have been made while the vendor was in possession or before he had parted with


TRUVERSY which might and in all probability did influence the mind of

the jury, is ground for a new trial. WHERE TWO OR MORE TENANTS IN COMMOX ARE PLAINTIFFS in an action

of trover, wnd part of them are subject to the operation of the statute of

limitations, it is no bar to the recovery of those not within it. VERDICT OF JURY DHOULD DESIGNATE NOT ONLY THOSE OF THE PLAINTIFFS

FOR W110M THEY SIND, but also those against whom they find; otherwise the verdict woud by imperfect, as not finding upon all the issues sub


not appear upon the raw of the verdict that the alteration would be agreeable to the intention of the jury. TROVER by the children of Reuben M. Rainey and Catharine, his wife, for a slave, Minerva, uud her offspring. Rainey sold the slave to Settle. The plaintiff claimed that Rainey never owned the slave, but that she and ber issue had been “ lent" to his wifo Catharine for her life-time, under the will of her father,

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Thomas Cleaton, to be equally divided among said Catharine's children at her death. The jury found for four only of the eight plaintiffs, saying nothing as to the rest. Defendant moved for a new trial. The motion was denied, and defendant brought error.

Harman and Chappell, for the plaintiff in error.
Gibson, for the defendants.

By Court, WARNER, J. On the trial of this cause in the court below several exceptions were taken to the decision of the court, which will be noticed in the order the same appear on the record.

First, the plaintiff below offered in evidence a paper purporting to be a certified copy of the last will and testament of Thomas Cleaton, of Mecklenburg county, state of Virginia, which was objected to by defendant, on the ground that there was no copy of the probate of the will; which objection was overruled and the paper admitted in evidence.

The county clerk of Mecklenburg county certified, that on the tenth day of March, 1818, the last will and testament of Thomas Cleaton, deceased, was presented into court, and proven by the oaths of the witnesses thereto, and ordered to be recorded, and that two of the executors qualified, and gave bond and security, as the law directs, and that certificate is granted them for obtaining probate of said will in due form.

In this state, we think it to be the better practice to have the probate of the will in writing, and the same entered on the minutes of the court of ordinary; but in the state of Virginia it appears that the certificate of the clerk of the county court, that the will has been admitted to probate and record, is sufficient. See Tucker's Blackstone, vol. 1, p. 418. According to the act of congress of the twenty-sixth of May, 1790, the records and judicial proceedings of the state of Virginia are to have such faith and credit given to them in the courts of this state as they have, by law or usage, in the courts of that state, from whence the records are taken: Prince, 221. Inasmuch the certificate of the clerk, as to the probate of the will, would have been sufficient to have admitted it in evidence in the courts of Virginia, the court below did not err in giving the same faith and credit to it, when offered in evidence in the courts of this state.

The second objection made to the admissibility of the certified copy of Thomas Cleaton's will is, that the record was not prop

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