Coursey vs. Curtis. By the Court.-STARNES, J. delivering the opinion. The only question in this case is, whether or not a promissory note is personal property, within the meaning of our Statute of 1821, providing a summary remedy for the purpose of quieting and protecting the possession of personal property. For the plaintiff in error, it was insisted that a promissory note was not such property as the Act contemplated, because it was a chose in action. And it was argued that the Statute contemplated personal property in possession-that sort of property of which the holder had the immediate enjoyment and use; that a promissory note, as a chose in action, was of no value; that it was a mere evidence of debt-the debt being the thing of value, not the note; and that an action might be maintained for the debt, without the note. It is not accurate to say that a promissory note is not property of use and value to the owner, as an evidence of debt. It is of use as a writing on paper, which, whilst in his possession, will save him the trouble and expense of otherwise proving his debt. In this point of view, the paper is not personal property in action. It is the holder's right to receive the debt or damage for the breach of the contract which is in action, not the written evidence of such right— that is property in possession; and as such, is of use, as are title deeds, records, &c. Thus it is that trover may be brought for promissory notes, for title deeds, certificates of stock, books of records, &c. (Goggesby vs. Cuthbert, 2 N. Rep. 170. 5 Bos. & P. 170. Yea vs. Field, 2 T. R. 1708. King vs. Milsom, 2 Camp. 5. Towle vs. Lovett, 6 Mass. R. 394. Todd vs. Crookshanks, 2 John. 432.) In this sense, certainly, a promissory note must be held to be embraced in the terms of the Act of 1821. It has occurred to us, that if the value of this promissory note be determined alone by the value of the paper as a written evidence of debt, and this were looked to as the measure Miller vs. Reinhart. of the bond which the Act requires to be given, this might afford a very unsatisfactory result. But this is a difficulty of detail rather than of principle. And we are not called on to make any decision upon the point. Judgment affirmed. No. 22.-JOHN MILLER, plaintiff in error, vs. JAMES M. REINHART, defendant in error. [1.] A certificate of naturalization was to this effect: I, J F G, Clerk, &c. certify, that at a Superior Court held at Savannah, J M R, an alien, &c. petitioned the Court to be admitted a citizen and, having in all things complied with the law in such case made and provided, the said J M R was accordingly admitted a citizen of the U. S. having first taken and subscribed, in open Court, the oath of naturalization: Held, that this certificate was not sufficient to show J M R naturalized. Appeal from Ordinary, in Montgomery Superior Court. Tried before Judge HOLT, April Term, 1855. James M. Reinhart applied for letters of administrationupon the estate of his wife, Cassa Reinhart. John Miller caveated the application. On appeal to the Superior Court, from the decision of the Ordinary, the questions in this case *arose. The applicant offered in evidence the following testimony: 1st. His letters of citizenship, to wit: STATE OF GEORGIA, CHATHAM COUNTY: United States of America, in the Superior Court of Chatham County. To all whom these presents may come, greeting: I, John F. Guilmartin, Clerk of said Court, do hereby certify and Miller vs. Reinhart. make known, that at a Superior Court held at Savannah, in and for the county aforesaid, before the Honorable William. B. Fleming, Esq. Judge of said Court, on the 24th day of January, 1855, James M. Reinhart, an alien and subject of the King of Germany, petitioned the Court to be admitted a citizen, and having in all things complied with the law in such case made and provided, the said James M. Reinhart was accordingly admitted a citizen of the United States of America, having first taken and subscribed, in open Court, the oath of naturalization. Given under my hand and seal of the said Court, this twenty-fourth day of January, in the year of our Lord, one thousand eight hundred and fifty-five, and in the seventy-ninth year of the Independence of the United States of America. [L. S.] JNO. F. GUILMARTIN, Clerk s. c. c. c. To which document or certificate of the Clerk, of the fact of the naturalization of the applicant being admitted in evidence, caveator, by his Counsel, Wm. B. Gaulden and DeLaMotta Sheftall, objected, on the ground that if said applicant had ever been legally made a citizen and naturalized, the evidence was matter of record; and that the exemplification of that record, at least the judgment of the Court, should have been introduced, and was higher and better evidence than a mere notarial certificate of the Clerk. The Court overruled the objection and admitted the testimony, and Counsel for caveator excepted. 2d. Counsel for applicant then introduced in evidence the original license of marriage between the applicant and his wife, Cassa; proved the marriage by a witness who saw them married; which fact of marriage was admitted, and took place in Laurens County, 6th February, 1853; proved that Cassa, the wife of the applicant, on whose estate he applied for letters of administration, was dead; that she had an only child, who died before she did; that her father died before she did, possessed of a considerable personal and real estate, leaving five children besides the wife of the applicant. It was fur Miller vs. Reinhart. ther proved by John M. Reinhart, that the applicant was a native of Bavaria, in Germany, but had resided in the State of Georgia for the last 14 or 15 years; and had resided in Laurens County for the last number of years, say 7 years, and was a resident of this State, and Laurens County, at the time of his inter-marriage with Cassa Miller, his wife, and is now. It was further proved, by Malcomb Curry, that the father of intestate was dead, and died intestate before Cassa Reinhart, the wife of applicant, leaving a considerable personal and real estate; that Cassa, the wife of applicant, died intestate; that she had no other property of her own, either in possession or expectancy, than that mentioned in a certain deed of conveyance, (which conveyance was afterwards rejected by the Court,) and what might be due her as one of the distributees of her father's estate; that caveator was the brother and and next of kin of deceased. It was proved that Cassa had jewelry and clothes at her death, and her right, whatever it may have been, in her father's estate. It was also proved by Farquhard McRae, Deputy Ordinary of Montgomery County, that letters of administration had been granted to the caveator, John Miller, 6th of February, 1855, on the estate of John Miller, (his father,) but that the inventory and appraisement had not yet been returned. Counsel for applicant here closed. Counsel for the caveator then opened his case to the Jury, and offered in evidence the original marriage settlement between the applicant and the said Cassa Miller, in the following words, to wit: STATE OF GEORGIA, MONTGOMERY COUNTY: This indenture of three parts, made and entered into this February, the fifth day, in the year of our Lord, eighteen hundred and fifty-three, between James M. Reinhart of said State and county of the first part, Cassa Miller of said State and county of the second part, and John Miller of said State and county of the third part, witnesseth, that the said James. M. Reinhart of the first part, for and in consideration of mar VOL. XVIII.-31 Miller vs. Reinhart. riage to be had and solemnized between the said James M. Reinhart of the first part, and the said Cassa Miller of the second part, does for himself, heirs, executors and administrators covenant, grant and agree, that all the lands that may be given her, the rights, members and appurtenances to said lands, and three negroes, to wit: Georgianna, a girl about sixteen years of age; Amy, a girl about four years of age; Milly, a girl about two years of age; now in the possession of Cassa Miller, and all other property which may at any time be given said Cassa Miller by her father or other persons, by will or otherwise, shall form and remain to be her separate property and estate; and shall not, in Law or Equity, be subject to the use of James M. Reinhart, and at her death, if leaving no children, to go to her brothers and sister, and in nowise to be subject to the payment of the debts of the said James M. Reinhart, or be subject to be sold or conveyed, or in any manner controlled by him, the said James M. Reinhart; but the rights and title of said property shall be vested in said John Miller of the third part, for the use and benefit of said Cassa Miller; and said James M. Reinhart further covenants and agrees, that said Cassa Miller may dispose of said property by will, to any person she may appoint, subject, however, to be used by said James M. Reinhart, with the approbation and consent of said John Miller, during the continuance of the coverture, for the mutual benefit and advantage of said James M. Reinhart and Cassa Miller, and the said James M. Reinhart and Cassa Miller nominate and appoint said John Miller, trustee of said property, who is authorized to possess himself of, and control said property in conformity with this indenture; and the said John Miller con-sents and agrees to his said nomination and appointment of trustee as aforesaid. In testimony whereof, the parties of the first, second and third parts, have hereunto set their hands and affixed their seals, the day and year above written. J. M. REINHART, [L. S.] |