Cone v. Force , 31 Ga. 328 ( 1860 )

By the Court. —

Jenkins, J.,

delivering- the opinion.

This case was instituted by possessory warrant, sued out by the plaintiff in error, against the defendant and certain negroes, under the Act of 1821. On return of the warrant, and trial of the right of possession, plaintiff made a prima facie case, entitling him to have the negroes restored to' his. possession. Defendant offered in evidence of the freedom of said negroes, and of a proceeding- before the Superior Court of Floyd county, wherein he, defendant, was appointed their guardian. To this evidence, plaintiff objected, but the Court overruled the objection and admitted 'the evidence. Plaintiff excepted.

The Magistrates’ Court ordered the negroes into the custody of the defendant, recognizing their freedom and his guardianship. Plaintiff excepted.

The Superior Court of Floyd county, having acquired jurisdiction of the cause, by certiorari, affirmed the decisions of the Magistrates’ Court, . and dismissed the certiorari. Plaintiff excepted, and the decision of the Superior Court is now under review. We hold that the Court below erred in sustaining the decision of the Magistrates’ Court, on the objection to the admissibility of evidence of the freedom of said negroes, and its judgment, recognizing their freedom.

It was not competent for the Magistrates’ Court to entertain and adjudicate the question of the freedom of said negroes in this proceeding. The General Assembly has formally and distinctly provided, both the proceeding by which, and the forum in which, the status of negroes held in slavery,, but claiming to be free, shall be investigated and determined. Cobb’s Digest, 1007 and IOII. When held in servitude, and before their freedom shall have been established in the form, and by the forum thus designated, the presumption of law is against their freedom.

The plaintiff made, as already remarked, a prima facie case.. The defendant offered no proof, to show how he acquired' possession. This, the right of .possession — not title — not the-social status — was the legitimate subject of inquiry.

JUDGMENT.

Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be reversed, on the ground that the Court erred in refusing to correct, by final judgment on the certiorari, the following errors of the Court of original jurisdiction: First. In admitting on the trial of a possessory warrant for retaining possession of negroes in evidence of their freedom. Second. In adjudicating the question of freedom or slavery under this proceeding. Third. In refusing to order said slaves into the possession of the plaintiff in the warrant;