Bishop vs. The State of Georgia.

venue is laid, the Court of Kings Bench, (the indictment being removed thither by certiorari,) will, upon an affidavit stating that fact, permit a suggestion to be entered on the record, so that the trial may be had in an adjacent County. Good ground must be stated in the affidavit for the belief that the trial cannot be had. The suggestion, however, need not state the facts from which the inference is drawn that a fair trial cannot be had. Citing Hunt's Case, 3 B. & A.444, (31 Eng. Com. L. Rep. 342.) And this suggestion, when entered, is not traversable. 1 Chitty's Crim. Law, 201. Roscoe, 236.

Believing these principles to be strictly analogous, the disallowance of this motion for a continuance cannot receive our sanction.

[7.] The only remaining question is, as to the competency of Madison Malsby as a Juror.

The general rules by which the fairness of a Juror is to be tried, are so fully stated in Monroe's Case, that we do not care to recapitulate them here. The affidavits submitted to the Court, by the defendant in support of his application for a new trial, establish, conclusively, the unfitness of the Juror. Nor do we think him relieved by his own statement. It is contended, that the opinion which he expressed, was predicated upon a hypothetical case; but, from an attentive consideration of all the evidence, we think otherwise. If it amounted to nothing more than the expression, simply, of an opinion upon a given state of facts, we could not only excuse the individual, but even commend him for giving utterance to his abhorrence of a great crime, supposed to have been wantonly and wickedly committed against the peace and welfare of the community of which he was a member. On the contrary, the proof shows a determination to look to the testimony alone, which would in-culpate, and not to that which would ex-culpate the defendant to believe that which would convict, and to disregard that which would acquit the prisoner. Such impressions would not be easily removed, whatever facts may have been proven in favor of the accused. Who can doubt but that they would have operated injuriously to the accused? It is the pride of the Constitution of this country, VOL IX 17

Towns, Governor, vs. Springer and others.

that all causes should be decided by Jurors, from whose breasts are excluded all bias and prejudice. To break down any of these safeguards, so wisely erected, and to suffer Jurors to decide upon the life and liberty of the citizen, whose minds are poisoned by passion or prejudice, would be to stab the upright administration of justice in its most vital parts. We cannot hesitate, therefore, to pronounce Madison Malsby an incompetent Juror, and that the Circuit Court ought to have awarded a new trial to the defendant on that account.

The judgment of the Court below must, consequently, be reversed and the cause remanded, and a new trial granted by the Superior Court of Bibb County.

No. 27.-GEO. W. Towns, Governor, for the use of P. A. Clayton, plaintiff in error, vs. JOHN SPRINGER et al. defendants.

[1.] A judgment rendered by a Court without jurisdiction, is a mere nullity, and may be so held wherever and whenever and in whatever way it is sought to be used as a valid judgment.

Rule absolute for a new trial. Granted by Judge STARK, at July Term, 1850, of Bibb Superior Court.

The plaintiff instituted an action of debt against the defendant upon his bond, as former Sheriff of Bibb County, for the recovery of money alleged to have been collected by the defendant, as Sheriff, upon a mortgage fi. fa. issued from the Inferior Court of said County, in favor of the usee, against one James T. Rivers, for the sum of three hundred and fifty dollars, principal, and sixteen dollars and thirty-three cents, interest, up to the 1st day of May, 1838.

The cause came on to be tried upon the appeal, at July Term,

Towns, Governor, vs. Springer and others.

1849, when the Jury returned a verdict for the plaintiff for seven hundred dollars and fifty-one cents.

Whereupon counsel for the defendant moved the Court for a new trial, upon the following grounds:

1st. Because the Court erred in admitting in evidence, for the plaintiff, a rule absolute in favor of Philip A. Clayton against John Springer, at the November Term, 1847, of Bibb Superior Court, founded on a mortgage fi. fa. from Bibb Inferior Court, this Court having no jurisdiction in said case.

2d. Because the Court erred in instructing and charging the Jury, that the said rule, against John Springer, was sufficient evidence to authorize the Jury to find for the plaintiff and against the securities of the said John Springer.

3d. Because the Jury found their verdict for the plaintiff without evidence, and contrary to evidence.

4th. Because the Jury found contrary to law.

5th. Because the verdict of the Jury is not in terms of the law, and because it is for too large an amount, and because the principal and interest are united in one sum.

At the July Term, 1850, Judge Stark heard and made absolute the rule nisi, and granted a new trial, "on the ground that the Court erred in admitting said rule absolute in evidence, because the Superior Court had no jurisdiction over an execution issued from the Inferior Court, and as the rule did not show that the Superior Court had jurisdiction, the rule absolute was a nullity and void, and therefore erroneously admitted in evidence."

To which decision of the Court, counsel for plaintiff excepted.

STUBBS and LESTER, for plaintiff in error.

COLE, for defendants in error.

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

[1.] It appears from the statements in the plaintiff's declaration, that the fi. fa. upon which the rule against the Sheriff was moved, issued upon the foreclosure of a mortgage, and was re

Towns, Governor, vs. Springer and others.

turnable to the Inferior Court. The rule was moved before the Superior Court, and was there made absolute. The question is, was that order absolute or judgment of the Superior Court admissible on the trial, to charge the surety of the Sheriff. We think it was not, because it is a mere nullity. It is a nullity, because the Court which rendered it had no jurisdiction over the Sheriff upon a rule founded on an execution returnable to the Inferior Court. If a nullity, it is available to the party procuring it for no purpose, consequently it is not available to him, as evidence in this suit against the Sheriff's surety, to show a breach of his bond. The assailability of a judgment of a Court of competent jurisdiction for irregularity is one thing-of a judgment of a Court not having jurisdiction, for the want of jurisdiction, is a very different thing. In the latter case, the judgment may be impeached whenever and wherever it is sought to be used as a valid judgment, no matter in what way it is proposed to be used. To make a judgment, in personam, valid, the Court which renders it must have jurisdiction of the subject matter, and of the person against whom it is rendered. In this case, the Superior Court had no jurisdiction over the Sheriff. He is amenable to the Inferior Court upon the process which issues from that Court. That Court has jurisdiction over its own processes. The Sheriff is the officer of that Court, as well as of the Superior Court. He is bound to execute its processes. If he does not, he is in contempt of that Court. He is bound to obey its orders, and if he does not, he is in contempt, and if in contempt, that Court alone has the power of punishing him. As he is not in contempt of the Superior Court for not obeying a process from the Inferior Court, the Superior Court has no power to punish him for not obeying the order absolute on the rule. Bethune vs. Bonner, 2 Kelly, 169. 9 Cow. R. 229. 15 Johns. R. 141. 4 Ibid, 354. 3 Wils. R. 188. 6 Wheat. R. 204. 2 Bay. R. 182. 7 Wheat. 38. Dearing vs. The Bank of Charleston, 5 Ga. R. 497.

This was the only question insisted upon in this case.
Let the judgment be affirmed.

Bryant vs. Hambrick.

No. 28.-THOMAS BRYANT, plaintiff in error, vs. HARRISON HAM

[1.] A declaration or answer may be amended at any time before the case is finally submitted to the Jury, if the principles of justice require it.

[2]. The judgment, and not the execution issuing thereon, is the proper subject matter of set-off.

[3.] In an action on a bond for titles, the measure of damages is the value of the land at the time when the title should have been made,

[4.] By making a proper case in Equity, a vendee, legally evicted, will be entitled to recover the value of the beneficial and permanent improvements put upon the premises.

Debt on bond for titles to land, in Troup Superior Court. Tried before Judge HILL, May Term, 1850.

This was an action of debt brought upon a bond made by Hambrick, the defendant in error, to Bryant, the plaintiff in error, in the penalty of five hundred dollars, and conditioned to be void when Hambrick should make good and sufficient titles to Bryant to lot of land No. 3, in the 12th district of Merriwether County.

On the trial of the cause in the Court below, the plaintiff proved that he purchased the land of defendant for two hundred and fifty dollars; that he had gone into possession, and made improvements worth $400, and that the land had increased in value to $450, making the premises worth $850; that in 1846, he was evicted from the land, in favor of a third person, by due process of law.

The defendant then offered in evidence an execution against plaintiff and one Obadiah L. Bryant, for the sum of $121 50, principal, with interest from 31st August, 1844, to the admission of which, counsel for plaintiff objected, on the ground that there was no plea to authorize its admission. The Court sustained the objection, and defendant's counsel then moved the Court to amend his plea, instanter, by inserting a plea of set-off, to which counsel for plaintiff objected. The Court overruled the objection, allowed the plea to be amended and the execution to be