Dugas vs. Mathews and others.

sustain some equitable defence. The judgment, therefore, is a valid, subsisting judgment, and could not now be set aside for irregularity. The transfer of the note, then, placed him in the position of the usee of the action, and of the judgment when obtained. The record, it is true, of the judgment, exhibits the plaintiff as the legal owner of the judgment, but the evidence shows that he holds the title to it for the use of the transferree. In Equity he is the owner of the judgment—he is, as such, entitled to the money raised on it, and his receipt would be a protection to the defendants. We hold that an equitable ownership or title to the judgment, is such a title as will authorize the suing out of garnishment. There can be no doubt but that the assignee in this case could, in a Court of Chancery, apply a debt due by the garnishees to the defendants in the judgment, to that judgment, upon his claim, as holding the equitable title to it. If so, why go into Chancery, if our Statute gives him a remedy at Law? The proceeding by garnishment is in the nature of, and a substitute for a proceeding in Chancery. Particularly is this position true in this State, where we have a Statute which authorizes a party to proceed at Law, in all cases where he may conceive that the legal remedy will be sufficient. The only reply to this is, the language of the Statute, which simply authorizes the plaintiff, or his agent or attorney, to sue out a garnishment on the judgment. It will not do to put too literal a construction on it. For the purposes of this proceeding, and in the spirit of the Act, the real owner of the judgment is the assignee. This construction would, before our Statute, have denied to the transferree of a judgment, assignable at Common Law, the benefits of our Garnishment Laws. Our Statute authorizing the assignment in writing of a judgment, empowers the assignee to collect it in his own name, and, as I conceive, admits him to the remedy by garnishment. Before that Statute, the proceeding to collect was, no doubt, in the name of the plaintiff for the use of the assignee. So we have held, that the assignee of a dormant judgment may revive it, by scire facias, in the name of the plaintiff for his use. 7 Ga. R. 204. Here, the title to the judgment, by the transfer of the note, is not set up under the Statute,

Dugas vs. Mathews and others.

but under the Common Law. How, then, was the proceeding to be instituted? It could not be instituted by the plaintiff, L. F. E. Dugas, because he could not swear, as the Statute requires, that anything was due to him on the judgment, for he had transferred his interest in it. The only practicable course is that taken in this case. Here the proceeding is instituted in the name of the assignee-he takes the oath (or rather his attorney) he is the plaintiff in garnishment; but the fact of the transfer is developed in the record. It is stated in the oath, and the record brings before the Court the whole transaction. The proof offered is in accordance with the pleadings. It sustains the allegations of the oath. The transfer of the note, therefore, we think, ought to have been admitted, not as evidence of title to the judgment, under the Act of 1829, but as evidence of an equitable title acquired, upon general principles, before the judgment was had. The garnishees certainly cannot complain, for a judgment against them on this issue, would be a protection against the plaintiff in the fi. fa. and against their creditors, the Habersham Iron Works & Manufacturing Company.

[3.] Independent of the transfer of the note, we think that the order to Col. Stanford is a written assignment of the judgment, sufficient under the Act of 1829. That Act prescribes no form of assignment. No law makes necessary any formality in the transfer, of which I have any knowledge. It only requires that the transfer be by written assignment or control. That is all. It forbids all parol assignments, and makes written evidence of the transfer indispensable. Here is that evidence, under the hand of the only person that could make it, to wit: the plaintiff. It contains an acknowledgment that he has assigned this judgment to Lewis A. Dugas, and directs that his name should be used in all proceedings deemed necessary to enforce its collection. The assignment referred to as the acknowledgment is, no doubt, that of the note. This order to Col. Stanford does not give effect to that, as a transfer of the judgment, but the acknowledgment, coupled with instructions to use his name in all proceedings necessary to collect it, and that for the benefit of Lewis A. Dugas, is a present transfer of that judgment. It is written evi

Shorter and others vs. Smith and Justices Inferior Court of Floyd County.

dence that he was not the owner of it, and that Lewis A. Dugas was the owner. We cannot believe that the ends of justice can be subserved by requiring, under the Act of 1829, a technically formal deed of assignment. What we do require is, that there be intelligible written evidence that the judgment is the property of him who claims to be its assignee. Such we consider this order to be.

Let the judgment be reversed.

:

No. 94. ALFRED SHORTER, et al. plaintiffs in error, vs. WILLIAM R. SMITH and THE JUSTICES OF THE INFERIOR COURT OF FLOYD COUNTY, defendants in error.

[1.] The ancient doctrine of the Common Law, that the franchise of ferry, although not declared to be exclusive, is necessarily implied in the grant, is inapplicable to both the local situation and political institutions of this country.

[2.] This doctrine had its origin in the feudal system, and has undergone great modification, if it has not been entirely abandoned, even in England.

[3.] Grants by the public are to be strictly construed, and nothing passes by implication.

[4.] The whole legislative history of this State, shows that the understanding of our people has been, that exclusive privileges are never conferred, where none such are expressly given by the charter.

[5.] The Legislature, or the Inferior Court, as its agent, after having chartered a company, to make a particular improvement for public accommodation, without any provision that no rival improvement should afterwards be authorized, may grant a charter to another company or individual, to make an improvement of the same or of a different kind, to afford the like accommodation, however the work of the junior company might impair, or even destroy the profits of the elder.

[6.] It is competent for the Legislature to grant charters with exclusive privileges, but should a change in the business, population and intercourse of the country require it, new avenues may be opened, within the limits of

Shorter and others vs. Smith and Justices Inferior Court of Floyd County.

such exclusive grant, by providing just compensation. There is no difference between a franchise and any other property in this respect; all may be made subservient to the public use, provided the public faith be not violated in making adequate remuneration.

[7.] Does a grant to build a bridge, confer a ferry right, and vice versa? Quere.

In Equity, in Floyd Superior Court. Decision by Judge JOHN H. LUMPKIN, at Chambers, April 12th, 1851.

The plaintiffs in error filed their bill, alleging the following facts: That they were the owners, and in occupation of certain toll bridges over the Etowah and Oostanaula rivers, near their junction at the Town of Rome; that those under whom they hold were, from the time of the first settlement of the country by the whites, owners of the land, and of a ferry privilege over said rivers; and that being the owners, and in undisturbed possession thereof, they did, in 1834, propose to the Justices of the Inferior Court then in office, and to the said County of Floyd, as a consideration for the removal of the County site from Livingston, and its permanent location at Rome, the following terms: 1st. That they would give to the Inferior Court, for the use of the County, one-half of the proceeds of the sale of town lots, on lot of land No. 245, in the 23d district 3d section, and that suitable lots should be selected thereon for a Court-house, jail, academy and three churches.

2d. They proposed to pay to the citizens of Livingston, the actual value of all their improvements made in said town, the improvements to belong to them; the value to be assessed by three respectable and disinterested citizens, the payment to be made out of the first proceeds of the sale of town lots realized by them.

3d. They proposed to keep a free ferry at the head of the Coosa river, for the benefit of free passage of the citizens of Floyd County upon foot and on horseback, except persons passing and repassing to their farms.

4th. The sale of the town lots at the head of Coosa, together with the collection and equal division of the proceeds of said lots, to be under the joint management of the said Court and the company.

Shorter and others vs. Sinith and Justices Inferior Court of Floyd County.

These propositions were submitted to a vote of the people of the County, and being accepted by a large majority of the voters, they were ratified by the Inferior Court, and entered on their minutes as a judgment and order of the Court.

Complainants further stated, that all the arrangements contemplated in said proposition were carried into effect, and that the conditions on both sides were performed; that they substituted bridges for ferries, to meet the public convenience, and had been for many years, and ever since the settlement of the County, in the peaceable enjoyment of their franchise. They claim to have acquired by prescription, a right to said franchise, and moreover, that the agreement between them and the County, above stated, was in full force, and sufficient in law, to protect them from any infringement of their exclusive rights.

They alleged, however, that the Inferior Court of said County, now in office, had passed an order, authorizing the defendant, William R. Smith, to erect a bridge over the Etowah river, within the corporate limits of the Town of Rome, and within one mile or less of complainant's bridge over the same river; which complainants charge, will be an injury to them, and a violation of their franchise; and they pray that defendants may be enjoined from proceeding further therein. The application for injunction being heard before Judge Lumpkin, at Chambers, was refused by him; to which decision complainants excepted.

UNDERWOOD and ALEXANDER, for plaintiffs in error.

MCDONALD, for defendants.

Points made by counsel for defendants in error.

Complainants do not show a prescriptive right either for a ferry, or an exclusive right to a ferry.

To constitute a prescriptive right, the enjoyment must have existed time out of mind. 1 Black. Com. 75. 2 lb. 263.

Seven years undisturbed possession and enjoyment of an incorporeal hereditament, presumes a grant. 7 Geo. Rep. 352.