Blankenship et al., vs. The State.

By the Court-BROWN, C. J., delivering the opinion.

Section 701 of the Revised Code of this State enacts, that: "whenever the grand jury of any county in this State, shall present any road commissioners for neglect of duty generally, or in any particular, it shall thereupon be the duty of the Clerk of the Court to issue a summons in writing, directed to such commissioners, commanding them to be and appear at the next Superior Court in which the presentment is made, to answer the accusation of the grand jury, which said summons shall be served by the sheriff, upon the commissioners; at least twenty days before the Court to which the same is returnable; and if upon the investigation of the case, it shall appear that the accusation is made out by the proof, the Judge shall thereupon, impose upon such commissioners, a fine of not less than fifty, nor more than two hundred dollars." By section 638, of the old Code substantially the same power over the commissioners, were conferred upon the Inferior Court: "When any person shall file his affidavit in writing in the Clerk's office of the Inferior Court, that any commissioner or set of commissioners, have neglected their duty generally or in any particular; or when the grand jury makes presentment of the same, or of the bad condition of any part of the public roads."

The section first quoted from the Revised Code, gives the Superior Court the same power over the commissioners, which was formely vested in the Inferior Court, with this difference, that the Inferior Court might act upon the written affidavit of any person filed in the Clerk's office, that the commissioners had neglected their duty generally, or in any particular; or when the grand jury made presentment of the same, or of the bad condition of any part of the public roads, while the Superior Court can act only upon the presentment of the grand jury. Now it is contended that this proceeding can not be sustained because the presentment was not sufficiently technical, or was not in the form prescribed for a presentment, by the Statute.

It will, we think, be apparent, by a careful investigation

Blankenship et al., vs. The State.

of the subject, that this is not a criminal proceeding. The commissioner when fined, is not a private individual punished for a crime, but a public agent, punished for the neglect of a public duty. If it is necessary that there be a technical presentment of the grand jury in this proceeding, such as is required to put a criminal on trial. it was equally necessary when the Inferior Court acted upon the presentment of the grand jury, that it have the same technical accuracy. In each case the action is predicated upon the presentment. But it will hardly be contended that the presentment upon which the Inferior Court could act, must have set forth the offence with all the legal averments and charges contained in a bill of indictment. In each case the Statute only requires a presentment for neglect of duty generally, or in any particular. No doubt the legislature had in view the attention usually called to the condition of the roads by the grand juries in their general presentments, as in this case.

But let us look at the subsequent proceedings. If there must be a technical presentment of the grand jury to authorize the Superior Court to act, as in a criminal case, the subsequent proceedings should also follow the usual course of proceedings in criminal cases. After the presentment, a bench warrant should issue against the defaulting commissioner, to arrest and bring him into Court; and he should be held and tried, as in other criminal cases. Instead of this a summons is issued by the Clerk, and served upon the commissioner by the Sheriff, and if the commissioner fails or refuses to appear, the next section, 702 of the Code, provides, not that the Court shall compel his attendance by arrest, but that the Court may proceed against him ex parte. And by section 703, it is provided, that the Clerk issue execution for the fine imposed, which is to take lien upon the property of the defendant, as in case of defaulting road workers. This shows very clearly that it is not a criminal proceeding. And we think a technical presentment of the grand jury is not required, but that the general presentment in this case was sufficient.

The fact that the commissioners were not presented each

Eady et al., vs. Shivey.

by name, is not a sufficient cause to quash the proceedings. All the commissioners in the county were presented. The public records showed who they were. And the summons

was issued by the Clerk to each one by name.

Under this

summons they appeared, and made their defence. The cause shown by them was adjudged by the Court to be insufficient and we concur in that judgment.

To the commissioners is given plenary power, to have the public roads put in good condition. Judged by their own showing they had not exercised that power, and the Judge simply discharged a plain duty when he imposed the penalty prescribed by law. The public highways have been neglected in almost all parts of the State. And it is time for the grand juries to take hold of this matter vigorously; and it is the duty of the Judges of the Superior Courts to sustain them, by imposing such penalties for neglect, as will compel commissioners to do their duty. So far as it lies in our power, we shall sustain the Judges in the fearless and faithful discharge of this plain duty on their part.

We need only add that in our judgment, the objection that the Judge heard the case without a jury, is not well taken. We know of no case in which a road commissioner charged with neglect of duty, was ever tried by a jury, in any Court in this State. Neither the Constitution nor the Statute gives him the right to demand a jury.

Let the judgment of the Court below be affirmed.

DOE, ex dem., SAMUEL EADY et al., plaintiff in error s ROE, casual ejector, and C. B. SHIVEY, tenant, defendant in error.

The existence, genuineness and contents of a deed shown to be lost or destroyed, may be proven by a certified copy of the record of it, if it has been properly and legally probated for record.

Ejectment. Evidence. Before Judge HARRELL. Superior Court. April Term, 1870.

Clay

Eady et al., vs. Shivey.

Doe, on the demise of Eady, Thomas J. Smith and Sarah A Cook, executrix of W. C. Cook, and others, brought ejectment against Roe, casual ejector, and C. B. Shivey, tenant in possession, for lot number three hundred and sixty-six in said county. Plaintiff's counsel read in evidence a grant of said lot from the State to Eady, dated 15th January, 1821. They then produced an affidavit by said Smith, "that the title deeds composing the chain of title from the owners and as they are recorded are not in his possession, power or custody, that he has made diligent search and enquiry and has been unable to find them; hence he believes they are lost or destroyed;" and an affidavit from said Sarah A. Cook, stating, "that the deeds that appear on record in the Clerk's office of said county, to lot of land number three hundred and sixty-six, in the twenty-sixth district, the lot for which the said S. A. Cook, executrix, and Thomas J. Smith, are suing C. B. Shivey, in an action of ejectment, are not in her possession, and, as she believes, are lost or destroyed and she make this affidavit that copies of the same from the records may be used in said case."

Thereupon, plaintiff's attorneys offered in evidence copies of deeds to said lot, duly certified from the records, from Eady to Thomas Broddus, from Broddus to David Merriwether and others, a deed from them, the heirs of Broddus, to said Smith, and from Smith to said Cook. (Said last deed purported to convey but a half interest in said land.) Defendant's counsel objected to these copies and they were rejected, upon the ground, (as was said in argument,) that there was no proof that such original deeds had ever existed. Plaintiffs closed.

Defendant's counsel examined plaintiff's attorneys who admitted that they did not represent Eady, that said Smith and said Cook were their clients, and that they had no right to sue for Eady, except that by said copy deeds he appeared as a warrantor of the title of said land, in the chain of title as aforesaid. And Shivey testified that he had been in possession of said premises from 1852, did not go in under W. C.

Eady et al., vs. Shivey.

Cook, or hold as his tenant, that once, while in possession, he requested Cook to purchase it for him, stating to Cook that if he would get a good title to the land he would give him a certain animal for it.

The Court charged the jury that said Smith and Cook could not recover in this action on the demise in the name of Eady, unless they showed a connection between their title and Eady's, and that they could not show by parol, that Eady was a warrantor on the title held by said plaintiffs. The jury found for the defendant.

Plaintiff's attorneys say that the Court erred in rejecting said copy deeds, and in charging as aforesaid.

H. FIELDER, for plaintiffs in error, cited 17th, Ga. R., 489 and 29th, 579, as to the parol proof.

HOOD & KIDDOO, for defendant, cited as to secondary evidence, 13th Ga., R., 406; 14th, 185; 16th, 368; 30th, 391, and as to parol proof, 29th, Ga., 572.

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

We think the Court erred in rejecting the copy deeds. The affidavits conformed strictly to the forty-second rule of Court. It is true, there was nothing in the affidavits affirming, directly, the existence and genuineness of the originals. We are of the opinion that this was proven "prima facie," by the certified copies from the record. Why should not the existence of a proper record, be evidence of the existence and contents of a lost original? To go to record, a deed must be probated, either executed, or acknowledged before a magistrate, or proven by the affidavit of one of the witnesses.

The very object of the record is to preserve a copy of the deed to be used if the original is lost or destroyed; and it would largely lessen the uses of a record, if it were necessary, before it could be used, to prove the existence of the original by other evidence.

The witness who could prove the original existed, could just as easily prove its contents. Indeed, a knowledge of