Terner a Collins

No. 63-ANDREW TURNER . WILLIAM COLLINS.

[:] An application for a certificate to prevent damages being assessed, un der the Art of 1843, creating the Supreme Court, will not be heard after the term at which the case was determined.

This was an application on the part of Andrew Turner, who was plaintif in error in a writ of error, returnable to and decided Macon, February Term, 1850, for a certificate that the cause was not brought up for the purpose of delay, in order to be reliev ed from the ten per cent damages provided in the Act organizing this Court.

L. J. GLENN, for the motion.

DOTAL and NOLAN, contra.

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

[1] By the 5th section of the Act of 1845, it is provided, that "it the decision and judgment of the Court below, be for any sum certain, and be affirmed in the Supreme Court, the plaintiff may, in the Superior Court, enter judgment against the defendant and his securities, for the amount of principal, interest and costs, as shall have been confessed or found by a Jury, and ten per cent damages on the principal sum, and have execution immediately after the decision of the Supreme Court, so certified as aforesaid: Provided, that if any one or more of the Judges of the Supreme Court shall certify, that in his of their opinion, such cause was not taken up for delay only, then, and in such case, the damages shall not be allowed."

The question presented for our determination is, can an application for the certificate to prevent damages being assessed, be made after the term at which the cause was decided? We think not. The Statute entitles the party to an execution for his principal, interest, costs and damages, immediately after the final decision in this Court; and this right would negative the idea that an application could be made to stay these damages after the remittitur had been transmitted to the Court below.

Besides, it would be both mischievous and inconvenient to al

Turner vs. Collins.

low such a practice. The opposite party, by his counsel, might not be present at any subsequent term, to resist the application; nor could the Court remember always, with sufficient distinctness, the merits of the cause, so as to enable them to act understanding ly in the premises. Without entering further into the argument, we must respectfully decline to hear the motion.

CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF THE STATE OF GEORGIA,

AT HAWKINSVILLE,

JUNE TERM, 1850.

No. 70. WILLIAM O'NEAL and another, claimants, plaintiffs in error, vs. CULLEN O'NEAL, administrator, &c. defendant.

[1.] The Clerk of the Superior Court, instead of retaining the original bill of exceptions, and sending up a copy, as required by law, sent up with the record the original bill itself: Held, that the matter could not be relieved by suggesting a diminution of the record. Motion for certiorart refused, and writ of error dismissed. Query, as to the constitutionality of the rule which authorizes the postponement of a cause for one term, upon a suggestion of a diminution of the record.

In error, from Laurens Superior Court. Tried before Judge HANSELL, March Term, 1850.

Suggestion of a diminution of the record. Motion to dismiss writ of error.

Counsel for plaintiff in error, in this case, suggested a diminution of the record, inasmuch as the Clerk of the Superior Court of Laurens County sent up to this Court the original bill of exceptions, instead of a copy of the same, and prayed that the original bill of exceptions might be withdrawn, and remanded with instructions to the Clerk of the Court below, to send up to the next term of this Court a copy thereof.

2

The defendant in error joined issue with a protestation, and

O'Neal and another vs. O'Neal.

moved to dismiss the case, because the Clerk of the Superior Court of Laurens County has not certified and sent up to this Court a copy of the original bill of exceptions filed in his office, but has sent up in lieu thereof, to this Court, the original bill of exceptions.

The facts were as stated in the motion to dismiss the writ of

error.

MORGAN (represented by SCARBOROUGH) and HARRIS, for the motion.

PLATT and SPICER, contra.

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

[1] In this case the Clerk of the Superior Court, instead of retaining the original bill of exceptions, and sending up a copy with the record, as required by the Acts of the last Legislature, sent up the original bill, in accordance with the law of force prior to the passage of those Acts; and now, at this term, being the return term of the writ of error, the plaintiffs in error suggest a diminution of the record, and pray that the original bill of exceptions may be withdrawn, and remanded with instructions to the Clerk of the Superior Court, to send up to the next term of this Court a copy thereof, as required by law. The amended Constitution of the State, under which this Court is organized, requires all cases brought here, to be tried at the term to which the writ of error is returnable, unless continued for Providential cause. Our rule authorizing a suggestion of a diminution of the record, and a consequent delay of the case for one term, goes upon the idea that there is no case before this Court until there is a complete record before us, and, therefore, the term after the record is completed is to be held in all cases where there has been a diminution the first term of such cases. It is in this view of it, that the rule can be, if it can be at all, reconciled with the Constitution. Whilst the necessity of such a rule is incontrovertible, we entertain very serious doubts of its constitutionality So strong are our doubts, that we shall be constrained, if it cannot be modified so as to conform to the Constitution, to repeal the rale altogether, and leave the relief where it belongs, to the Con