State of Georgia es. Dean.

EZZARD & MURPHY, for plaintiff in error.

IRWIN & RICE, for defendant.

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

In the 6th section of the Act passed 21st December, 1836, for the construction of the State Railroad, it is provided, that "The engineer and superintendent shall have full power and authority to treat with any owner of land through which the said road may be cut, or from which any timber or other material may be taken, and to fix and agree upon a compensation for the same; and that in the event of disagreement, the injury or damages shall be, in writing, submitted to and adjudged and determined by three arbitrators, sworn to do justice between the State and the party aggrieved; one of whom is to be chosen by the engineer and superintendent, one by the other party, and the third by the two so chosen; or if they cannot select, by any three or more of the Justices of the Inferior Court of the County in which such land may lie, either in term time or vacation. All of which submission, choice, appointment and award, shall be reduced to writing. And it is made lawful for the engineer or superintendent, for and on behalf of the State, or for the other party to the award of the said arbitrators, to present to them a written declaration of dissatisfaction therewith, and desire to appeal therefrom, who shall thereupon transmit, forthwith, to the Clerk of the Superior Court of the County wherein said land may lie, all previous proceedings in the case, together with such appeal, to be tried by a Special Jury, as in other cases of appeal, without formal pleadings or issue; which said appeal shall be presented on the part of the State, by the Attorney or Solicitor General officiating in such Court." Prince, 356.

J. F. Payne, Hiram Hooper and Thomas Hooper, having been selected, under this Act, as arbitrators to ascertain the injury done to the land of Henry G. Dean, Junior, by reason of the cutting of the State Railroad through his premises, met on the

State of Georgia vs. Dean.

4th day of April, 1850, and awarded to the owner the sum of fifteen hundred dollars as his damages.

On the 4th of September thereafter, William L. Mitchell, Esq. the Chief Engineer, for and on behalf of the State, presented to the arbitrators, his written dissatisfaction with the award, and gave notice of his desire to appeal therefrom, in terms of the Act. The papers were forthwith transmitted to the Clerk of the Superior Court of DeKalb County, and by him filed in his office on the 5th of September.

At the ensuing term of the Court, which met on the third Monday of the month, the presiding Judge, upon motion of counsel for Dean, the respondent, dismissed the appeal; whereupon the counsel for the State excepted.

[1.] The only question to be determined, therefore, is, whether the appeal by the State from the award of the arbitrators was entered in time?

The Act of 1836 specifies no time within which appeals shall be entered. It does not provide even, that appeals shall be tried at the next term of the Superior Court of the County where the land lies.

When a Statute guarantees to parties the right of appeal, and no time is designated within which it shall be entered, the rule is, that it must be done within a reasonable time; and the Legislature of Georgia have determined, that a reasonable time for appealing is four days—that being the period fixed by law within which appeals, in ordinary suits, shall be entered.

Knowing, however, as we do, that a contrary practice has prevailed throughout the State, under the various charters containing similar provisions to those in the Act of 1836, and that it has been usual, in all the Circuits, to allow appeals to be entered at any time before the next term of the Court after the award was made by the appraisers, we are unwilling to prescribe a definite rule and apply it to existing cases; and one which, being made to operate retroactively, would deprive parties of the privilege of having their rights passed upon by a Special Jury.

In the exercise, then, of the plenary powers conferred upon this Court, of giving such direction to cases as shall be in ac

Tyler vs. Gray.

cordance with justice and equity, we shall reverse the judg ment, dismissing the appeal, and order it to be re-instated, without any disparagement, as it will be perceived, to the legal acumen of our learned brother, who held that it had not been entered within a reasonable time.

No. 74.-DANIEL TYLER, plaintiff in error, vs. JOHN D. GRAY, defendant in error.

[1.] When the Jury find a verdict contrary to the charge of the Court, and manifestly contrary to law, a new trial will be granted.

Assumpsit in Bibb Superior Court, and motion for a new trial. Heard and decided by Judge STARK, July Term, 1850.

This was an action instituted by John D. Gray against Daniel Tyler, for the recovery of $450 14, as compensation for the services of the plaintiff, and the hire of his negroes, upon the Monroe Railroad, for the months of November and December, 1845.

The defendant pleaded a set-off of $4953 73, as money raised for freight and passengers on the road during the same time, and received by the plaintiff.

On the trial, Midas L. Graybill testified, that Daniel Tyler was the owner of the Monroe Railroad in November and December, 1845; that Gray run the road during these months; that the items in plaintiff's account for services of plaintiff and negro hire, were correct-the services of Gray were worth from $125 to $150 per month, &c. Witness was employed by Gray, and knows that he (witness) paid out all the money that was received during the months of November and December, and that the said items in the account were not paid. In paying out

Tyler vs. Gray.

money, he was governed by Gray's orders. The road, prior to the month of November, was in the hands of the commissioners, who sold the road, and Mr. Whittle was their agent. The whole receipts of the road during the months of November and December, amounted to......... Mr. Whittle turned over, to pay debts which were incurred during his service, the sum of........

Disbursed during three months for wages,

materials, &c. and running the road...2,771 20 Paid R. Collins for the hire of his ne

662 00

groes for the same months......................... J. D. Gray's negroes for same time...... 431 12 S. H. Martin's negroes for same time.....

..$4,356 79

596 94

4,953 73

201 53

4,165 85

787 88

In the item of $2771 20 of disbursements, are included items of expenses incurred during the time of Mr. Whittle, equal to the amount paid over by him, and a part of the receipts of November and December were applied, by Mr. Gray's order, to the payment of debts contracted prior to the month of November, 1845; that the hire of Gray's negroes from the 1st September to January, amounted to eleven hundred and odd dollars, and from the 1st of November to 1st January, the hire amounted to $431 12; that all sums received during the months of November and December, were paid out to debts legitimately due by the said road. A part was paid to debts contracted before Tyler got possession of the road-none of the money passed through Gray's hands. Witness paid it out as the agent for Gray, and by his orders, to the road. When Gray went out there was no money in hand.

L. N. Whittle testified, that he paid over a sum of money to be applied to the payment of debts, contracted while he had the superintendence of the road under the commissioners, which he required to be paid to the expenses that he (Whittle) left unpaid; that by order of Tyler, he placed Gray in possession of the VOL IX 52

Tyler vs. Gray.

road, &c. with orders to employ all necessary agents, labor, &c. to carry on the said road. The money left (by Whittle) was about enough to pay all the expenses he left unpaid—probably a little more.

The Court charged the Jury as follows: "In this case a setoff is pleaded. The Jury must look into the evidence, and see if the accounts have been proved, and if the account proven by one of the parties is larger than that proven by the other, the smaller must be deducted from the larger, and a verdict be given accordingly. The defendant is not liable for the debts contracted for the use of the road prior to his getting possession of it. The plaintiff is liable for all moneys which came to the hands of himself or his agents, for the months of November and December, subject to all payments made for expenses of these months. The money Graybill received from Whittle, being received as Tyler's agent, was of right paid by Gray towards the expenses Whittle left unpaid."

The Jury found a verdict for the plaintiff; whereupon counsel for the defendant moved the Court for a new trial, on the grounds

1st. Because the verdict of the Jury is contrary to evidence. 2d. Because the verdict of the Jury is contrary to the charge of the Court.

The Court refused to grant the motion for a new trial; whereupon counsel for the defendant excepted.

MCDONALD, for plaintiff in error.

POWERS and WHITTLE, for defendant.

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

[1.] The motion for a new trial in this case ought to have been granted, upon the ground that the Jury found contrary to the charge of the Court, which charge, in our judgment, was in accordance with the law governing the rights of the partiesconsequently the verdict is contrary to law.