No. 1 | Ga. | Mar 15, 1846
By the Court
As to the first ground the act creating this tribunal is explicit, that the bill of exceptions must be drawn up by the party or his attorney, within four days after the trial, in which the decision complained of has been made ; and certified and signed by the presiding Judge within that time. The difficulty here is, that the certificate has no date : But must not this court, in favor of Public Officers, presume that they discharge their duty, in compliance with the law, in the absence of all proof to the contrary ? Moreover, it is in proof that notice, that the Bill of Exceptions had been certified and signed by the Judge, was served upon the adverse party on the third day after the trial. It is apparent, therefore, that this act was performed within the four days. Id certum est quod cerium reddi potest.
The second and third grounds may be considered together. The 4th section of the statute prescribes that the party bringing up the cause shall specify in the bill of exceptions the errors complained of.
It is very important for the correct administration of the law, as well as for his own justification, that the Circuit Judge in the language of the Legislature should see to it, that the bill of exceptions “ be true and consistent with what has transpired in the cause brfore him,” for upon this paper, and the transcript of the record alone, all matters in this court must be heard and determined. The omission of a single fact, or the insertion of one which did not exist, may, and likely will, defeat the ends of justice. The court are constrained to admit that the errors complained of, are not set forth with that distinctness which is desirable ; still they do not deem the defect in this instance so palpable as to force the court to dismiss the writ. A copy “ in words and figures” of the rejected deed is set out in the record, and the Judge certifies that it is a true narrative of what transpired before him, in the trial below. We infer, therefore, that ■there was no evidence produced as to the execution of the deed except the endorsement of registration by the clerk upon the attestation of two
The fourth and fifth grounds are abandoned.
To prevent misapprehensions the court would observe, that tho bill requires, that a “ complete transcript of the entire record of the cause below,” and also the bill of exceptions, be sent up to this court.
The last and perhaps the most important objection is that embraced in «.he 6th ground, namely : — That no bond and security had been given.
We meet it by saying that none is required.
The giving of bond and security is optional, not compulsory.
In all cases where Bond is given, or an affidavit filed as provided for by the law, it operates as a supersedeas.
Failing to do this, the opposite party is at liberty to proceed to enforce his rights by execution, or otherwise. The court are aware that there are portions of the statute which seem to militate against this construction. They feel confident, nevertheless, that this interpretation will best sub-serve the intention of the General Assembly, and reconcile all the provisions of the act. They hold then, that the giving of bond, or the filing of affidavit, in certain cases, is a condition precedent, that must be complied with, where the bill of exceptions is to operate as a supersedeas.
failure or neglect to do this will not prevent this court from hearing and determining the causes, which may be sent up from the courts below.
The motion is therefore overruled.