USA > Georgia > The bench and bar of Georgia: memoirs and sketches. With an appendix, containing a court roll from 1790-1857, etc., volume II > Part 13
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But this digression has served to show that Mr. Kelly was broken up in his fortunes in 1825; and it will hereafter appear that his license to practise law bears about even date with that of the author. In 1826, Mr. Kelly removed to Perry with very slender means. He brought with him a white pony and a dog, one of the two named "Lubin;" but his friend,t who shared equal adversity at the time, does not now recollect which of the animals was thus designated. Mr. Kelly also had a little remnant of goods, on which he opened a shop, and was a liberal patron of himself in the grocery department. His friend (who was raised a printer in Savannah) had taken a school, and, to refresh his intervals of leisure, imbibed potations from the " Blackstone" spring, while Mr. Kelly solaced himself from quite a different fountain, whose magic destroyed care, made crookedness straight, poor men rich, timid men fearless, and weak men strong- in visions of the mind! The two friends compared notes, (not bank-notes, nor promissory notes, but a more abundant cur- rency,-notes of distress,) when the Blackstone disciple kindly suggested his bill of fare as affording better sustenance than Mr. Kelly was deriving from his merchandise. The idea was at once accepted, legal studies diligently pursued, and at April Term, 1827, of Houston Superior Court, Judge McDonald presiding, a most creditable examination of two applicants was had, and two commis-
* The late John W. Campbell, Esq., uncle to the Hon. John A. Campbell, now an Associate Justice of the Supreme Court of the United States.
+ Howell Cobb, Esq., of Houston.
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sions issued, one of which, in course of time, was absorbed in " Cobb's Analysis and Forms," and the other was vacated when the first Reporter of the Supreme Court entered upon his official labors.
Now to the practical difficulties of the law. Mr. Kelly's maiden fee was to avenge his client against an adversary for killing a dog. A warrant was drawn up by the counsel and signed by the magis- trate, with due solemnity, charging malicious mischief. The defendant was arrested, and, unable to give security for his appear- ance at court, was committed to jail to await the action of the grand jury. The friend at whose instance Mr. Kelly became a lawyer was associated with him in the prosecution. Passing the jail one day, he saw the prisoner looking through the grated win- dows, apparently satisfied with his lot. The idea occurred that the whole proceeding might possibly be without law to justify it ; and, if so, a very beautiful action for false imprisonment would lie against his client, the prosecutor. Whereupon the two counsellors weighed the case, searched the books, reasoned together, and finally decided that the killing of a dog (especially a fice dog) was not a crime under the penal code. One of the counsel walked again by the jail, as if by accident, and exchanged salutations with the prisoner, expressing regret at seeing him deprived of his liberty. The prisoner appeared to be in no distress, and calmly remarked that "all things would work right." The counsellor suspected a design to sue for damages, and graciously proposed to have the matter arbitrated. The offer was agreed to, and two impartial men, one selected by each party, acted as umpires in the controversy. The gentleman* chosen by the prosecutor was a famous hunter, and fond of dogs: he led the arbitration. He maintained that dogs were valuable; that he prized his hounds, and would bear down upon any man who killed one, to the full extent of the law. He therefore proposed, as there was hardship on both sides, that the cost should be divided, the prosecution withdrawn, and the defendant set at liberty,-which was consented to, and made the award. Here the matter ended,-the first case of the future Reporter of the Supreme Court of Georgia.
Mr. Kelly collected as many law-books as his finances would permit, made good use of them, analyzed his cases well, traced out principles, and always came into court thoroughly prepared. He was not eloquent; his delivery was not captivating, nor was his
* The late John J. Owens, Esq.
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manner graceful : still, he was always heard with interest. His excellent sense, his complete mastery of the facts, his persevering statements, and frequent repetition, if need be, until he was fully understood, made him quite successful,-so much so that parties considered their rights in safe hands when he was on their side. They knew he worked hard in his office, and could give them good reasons for his opinion. He advanced slowly, however, from the fact that his habits continued to be irregular. His friends trem- bled for him, and clients held off, all lamenting the unfortunate passion for strong drink. He was most formidable in justices' courts, in which he had a large practice. Having once presided in that forum, he knew what management was most likely to succeed, how much and what sort of law to produce, and what arguments to press. Frequently he met face to face his brother- lawyers of Perry before these tribunals. Then came the agonies of battle : there was no sham fighting: they did their very best,-put forth all their faculties in the law, and wrestled like valiant champions contending for the spurs of knighthood. It gave a fine opportunity to acquire self-confidence in debate and to brighten the whole professional armor.
At the session in 1828, Mr. Kelly was a candidate before the Legislature for the office of Solicitor-General of the Southern circuit. He and the author, with several other striplings in the law, competed for the prize, but were all beaten by the late Major Thomas Porter, who had a very influential relative (Col. John S. Porter) in the Senate, from Baker county. Of course, this little affair never in the least disturbed the kind personal relations which ever existed between Mr. Kelly and the author. They often alluded to it pleasantly, and expressed their satisfaction that the office de- volved upon Major Porter, for the sake of his very interesting family.
As mementos of the olden time, the author begs to submit here two short letters, the originals of which are now before him, while his dear friend Kelly, who wrote them, is in his honored grave :-
PERRY, GA., March 27, 1830.
DEAR SIR :- A part of the money, $-,'on the case - -, the clerk informs me, has been collected. You told me when I was in Twiggs that you intended to give me the tax fee; and, if you are yet willing to do so, send an order to the clerk to pay me the tax fee .* The money which has been collected is ready for you, and the balance will be collected as soon as it can be done. I am, respectfully, your friend, JAMES M. KELLY.
* Then four dollars in each case sued to judgment. Mr. Kelly had represented the author in this case. The sum involved was quite small.
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While at the Superior Court of Pulaski county, then sitting at Hartford, the author received on the same day it was written, through Benjamin Vernon Iverson, Esquire, the following :-
DEAR SIR :- At the last term of the Pulaski Superior Court, I was employed by Mr. - - to assist Torrance in the defence of the case which has been instituted on his constable's bond, &c. Will you represent me in that case, and inform - of the fact that I have obtained your services in the case in his favor, as I cannot attend court ? The favor will be recipro- cated with pleasure. I am your friend,
JAMES M. KELLY.
PERRY, April 12, 1830.
In a few years from this time, Mr. Kelly was so well established in his profession, and so much respected by the people of Houston county, that he was elected a Representative in the Legislature, where he proved to be a useful member. The trust was highly flattering, and he was grateful for it. His self-respect increased. Association with men of note, of active minds, of public spirit, of noble aims, whom he found at Milledgeville in a law-making capa- city, roused his ambition ; and he conferred with them on all topics of general interest, of party discipline,-on measures to secure popularity at home and fame abroad; and he toiled for these objects, as others toil for them, with constant assiduity.
By examining the Journals of the House, it might be ascertained on what committees Mr. Kelly served. As he was but a new member, it is hardly supposed that he was made chairman of any at the first session ; yet, if the Speaker, or the usages in committee, allowed him the privilege of making reports, there can be no ques- tion that he prepared very neat and sensible documents on any subject referred. He was capable, and he loved to see his name in print. For it to appear on the Journal of the House, and in the newspapers, that "Mr. Kelly, from the Committee on the Judi- ciary," " Mr. Kelly, from the Committee on the State of the Repub- lic," "Mr. Kelly, from the Committee on Finance," "Mr. Kelly, from the Committee on Education," "Mr. Kelly, from the select com- mittee appointed to investigate the disorders of the currency, the defects of corporations, the expediency of restricting individuals to the enjoyment of their vested rights, and to punish those who may infringe the same,"-in fact, from any committee,-" Mr. Kelly, from the Committee on Enrollment," would have been a happy position, rather than none at all in the work and publicity of committees. Let no man condemn this taste. Even Byron, who scorned trifles, says it is pleasant to see one's name in print. With such an example, who shall depreciate this noble passion as
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vanity ? If connected with great deeds and lofty purposes, it is well,-it is admirable. Napoleon delighted to see his bulletins in print, in reading the eulogiums of the press, and was chagrined at its censures. He often complained of them, and rarely forgave the authors.
Mr. Kelly was elected more than once to the House of Repre- sentatives, but how often, or in what years, the author is not in- formed. By accident he has in his possession a copy of the Senate Journal for 1839, which shows that, on the 4th day of November, "The Honorable Samuel Beall, Senator elect from the county of Wilkinson, having been called to the chair, the members produced their several credentials, and were sworn, agreeably to the Consti- tution of this State, and to support that of the United States, by the Honorable John S. Thomas, one of the Justices of the Inferior Court of Baldwin county, of this State, and took their seats, to wit:" "From the county of Houston, the Hon. James M. Kelly," who was one of eighty-eight Senators present on the first day of the session.
From his service in the other branch of the Legislature he must have acquired some reputation as a jurist ; for we find that in the construction of the committees by the President* of the Senate, Mr. Kelly was made Chairman of the Judiciary Committee,-an honor indeed, if no influence but merit prompted its bestowal. The other members of the committee were Messrs. Alexander, Crane, Brown of Hancock, Williamson, Tracy, Harris of Warren, Stan- ford, Miller, Lewis, Pryor, and Billups.
The Journal has been glanced over, to see what bills, resolutions, or reports were ascribed to Mr. Kelly. The following is the sum, with the pages given :-
62. Mr. Kelly reported a bill to amend so much of the first section of the third article of the Constitution of this State as relates to the Supreme Court. Read the first time.
88. The bill being under consideration, and various amendments pro- posed, Mr. Kelly offered a substitute for the whole bill ; upon the reception of which, the ayes and nays were recorded, and are,-Ayes, 29; Nays, 51. The vote was then taken on the original bill and rejected,-Ayes, 27; Nays, 59.
91. On motion of Mr. Kelly, the Senate reconsidered so much of the Journal of Saturday as relates to the rejection of the bill to alter and amend a part of the first section of the third article of the Constitution, and all action had thereon.
* The late Col. Robert M. Echols, of Walton county, who died in Mexico while in command of the Georgia regiment.
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155. Mr. Kelly, from the Joint Standing Committe on the Judiciary, reported a bill to amend an act to authorize the Superior Courts of this State to appoint persons to assign and set off dower, and prescribe the mode of proceeding therein, and to define how dower shall be laid off and assigned. Read the first time.
178. Mr. Kelly laid on the table the following preamble and reso- lutions :--
Whereas, the late suspension of specie payments by the Bank of Darien and branches, and the consequent refusal of the officers and agents of the State to receive the bills of that institution in payment of the public dues, or of grant-fees, or debts due the Central Bank of Georgia, have had the effect to depreciate said bills below their real value; and whereas, the State owns near seven-tenths of the capital stock of the Bank of Darien, and, as such stockholder, is bound and liable for the ultimate redemption of its bills in the same proportion ; and the last semi-annual report of said bank shows sufficient assets to redeem all liabilities at par, which assets will in a short time be available for that purpose,-
Be it therefore Resolved, &c., That the State Treasurer, the officers of the Central Bank, their agents and attorneys, and all other officers of the State, be and they are hereby required to receive the bills of the Bank of Darien and branches in payment of grant-fees or of debts due the Central Bank, and of all other public dues which are by law required to be col- lected and paid into the Treasury of the State or the Central Bank.
211. Mr. Kelly, from the Joint Committee of the Judiciary, to whom was referred the communication of the Treasurer enclosing a copy of a correspondence between that officer and the Cashier of the Georgia Rail- road Company, touching the liability of the bank-capital of said company to taxation under existing laws, made a report, which was laid on the table for the present.
212. Mr. Kelly laid on the table the following resolution :-
" Resolved, That Allen Matthews have leave to withdraw from the con- sideration of the Judiciary Committee the memorial presented by him upon the subject of a digest of the general principles of the common law of force in Georgia."
Which was taken up and agreed to.
308. Mr. Kelly moved to adhere to the bill of the Senate, to create a bank at Milledgeville, to be called the Central Bank, &c., and to reject the amendment of the House ; which was agreed to.
311. The appropriation-bill for the year 1840 being under consideration, Mr. Kelly offered the following amendment :-
" And be it further enacted, &c., That the sum of thirty-one dollars and fifty cents be paid to the administrator of Alexander Broxson, deceased, for forty-two days' service rendered by said Alexander Broxson in Captain Hugh L. Dennard's company of mounted volunteers in 1836, the said Alexander having died in service without receiving any pay for said service, as is shown by the muster-roll of said Captain Hugh L. Dennard ; and that the said money [sum] be paid out of any money in the Treasury or Central Bank not otherwise appropriated, and charged to account against the United States."
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On which amendment the yeas and nays were recorded, and are,- Ayes, 31; Nays, 28.
This statement includes all, except motions occasionally, which have been omitted. It is not so fruitful of reports as might be justified by his position on the committee, into whose sieve a great deal of crude matter is frequently thrown to be cleansed from dust and rubbish. There is no evidence to prove, or ground to infer, that the chairman declined making reports in extenso whenever the opportunity permitted. He was not the man to shrink from the labor or the éclat of such performances.
Turning from his legislative career, in which no laurels bloomed for him in debate, another field is brought to view more within the scope of his capacities for distinction. Mr. Kelly had determined to become master of his profession, or, in other words, to exert his faculties to that end. His investigation was patient, minute, and systematic. Through the kindness of his late partner,* (a gentle- man who does honor to the bar,) the author has before him "The Lawyer's Common-Place Book" of Mr. Kelly, which affords ample evidence of these qualities. One case has been selected as an example. It having been decided before the establishment of the Supreme Court, it is probable that the brief does not appear in the Georgia Reports. At all events, it may prove interesting to the profession ; and certainly it is a monument to his industry and research, worthy of being incorporated in his memoir. Its length can be no objection with those who desire to know what consti- tutes a lawyer,-a thinking, hard-working lawyer. The para- graphs and sentences are preserved as Mr. Kelly noted them in the brief :-
Doe on demise of Summerlin ) Ejectment in Pulaski Superior Court, and
Howell, tenant in possession. S vs. plea, general issue and statute of limita- tions, &c.
The defendant purchased the premises some twelve or fifteen years before suit brought, received a deed of conveyance from the person from whom he purchased, and went into immediate possession, and has ever since lived upon the land, and has improved it, &c.
The statute of limitations of North Carolina (see Revised Statutes of that State, vol. i. pp. 371 and 372) is in substance the same as that of force in this State, so far as respects suits for the recovery of land.
The wording of the statute of North Carolina is as follows :- " That no person or persons, nor their heirs, which shall hereafter have any right or title to any lands, tenements, or hereditaments, shall thereunto enter or
* John M. Giles, Esq.
VOL. II .- 8
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make claim but within seven years next after his, her, or their right or title descended or accrued ; and, in default thereof, such person or persons so not entering or making claim shall be utterly excluded and disabled from any entry or claim thereafter to be made."
Here follows provision for those who are disabled.
Compare this with our statute, (new Prince, p. 573,) and no difference in principle between the two acts can be perceived.
The decisions of the Supreme Court of North Carolina upon this statute cannot fail to meet with favor in our courts, because that statute is precisely like our own, and the principle involved is the same in both. The decisions of the Supreme Court of North Carolina on this subject are then applicable here; and, being consistent with the English rule, (differing only in regard to the length of time from that rule,) they would seem to have the force of authority.
It never was the intention of the Legislature, perhaps, to give a mere squatter title by the lapse of time, but to protect those who, bona fide and in good faith, became possessed and improved the land, believing their title to be sufficient. This seems to have been the intention of the Legislature of North Carolina, and hence color of title in that State must necessarily accompany the possession, according to the decisions of the judges. It is not intended to controvert that position now, nor to avow a different opinion. But see hereafter.
The North Carolina decisions are as follows :-
The act of limitations concerning lands was made with the intention that, when a man settled upon and improved lands upon the supposition that they were his own, and continued in the occupation for seven years, he should not be subject to be turned out of possession. Hence arises the necessity of color of title; for, if he has no such color or pretence of title, he cannot suppose that the lands are his own, and he settles upon them in his own wrong. Grant vs. Winborne, 2 Hayw. 56, (1798.) S. P. Armour vs. White, 2 Hayw. 69.
The possession of lands for seven years under color of title bars the right of entry, although the possessor knew, at the time he obtained his color of title and took possession, that the lands belonged to another person. Any other construction of the act of limitations would render titles insecure and frustrate the intention of the act. Doe on dem. Reddick et ux. vs. Leggat, 3 Murph. 539, (1819.) A bond to make title is no color of title. vs. Ashe, 2 Hayw. 103, (1799.) The deed of a feme and her husband, to which she has not been privily examined, is a color of title. Pearse vs. Owens, 2 Hayw. 235, (1803.)
A devise is color of title, and seven years' possession under it bars the right of entry. Doe on dem. of Evans vs. Satterfield, 1 Murph. 413, (1810.) S. P. Young vs. Irwin, 2 Hayw. 9.
A constituted B his attorney "to levy, recover, and receive all debts due to him; to take and use all due means for the recovery of the same; and for recoveries and receipts thereof to make and execute acquittances and discharges." B sold to C a tract of land belonging to A, and con- veyed the same as attorney of A. C entered, and had seven years' pos- session of the land. Held, that the deed of B as attorney of A, although he as attorney had no authority to sell the land, was color of title, and that seven years' possession under it barred the right of entry of A.
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When a deed is executed, (which is afterward considered as forming only color of title,) the party executing it must be considered as not having a complete title to the land which he by his deed purports to convey. The heirs of Hill vs. the heirs of Wilton, 2 Murph. 14, (1811.)
A will constitutes a color of title, and, if accompanied with seven years' possession, will ripen into a perfect one. Trustees of University vs. Blount, N. C. Term Rep. 13, (1816.)
When both parties claim by descent from the same common ancestor, a color of title by virtue of such descent cannot be set up by one against the other, whatever may be the effect of descent in any other case. Doe on dem. of Midford et ux. vs. Hardison, 3 Murph. 164, (1819.)
A sheriff's deed, which recites the execution under which the lands in dispute were sold, as having been tested and signed by the deputy clerk, shall inure as color of title. Doe on dem. of R. & T. Jones vs. Putney, 3 Murph. 562, (1819.)
It seems that the return of the sheriff upon a fi. fa. is colorable title under the act of 1791, though no deed be made by the sheriff. Doe on dem. of Tate vs. Southard, 1 Hawks, 45, (1820.)
An unregistered deed is color of title. Doe on dem. of Campbell vs. McArthur, 2 Hawks, 33, (1822.)
An unconstitutional act of the Legislature is color of title. Episcopal Church of Newbern vs. Newbern Academy, 2 Hawks, 233, (1822.)
Seven years' possession under allotment of dower made to a widow, without previous notice to the infant heir-at-law, constitutes good title as against a stranger, although the allotment might have been reversed or set aside by the heir or those claiming under him. Rayner and wife vs. Copehart, 2 Hawks, 375, (1823.)
Color of title may be defined to be a writing, upon its face professing to pass title, but which does not do it, either from want of title in the person making it or the defective mode of conveyance which is used; and it would seem that it must not be so obviously defective that no man of ordinary capacity could be misled by it. Doe ex dem. of Tate's heirs vs. Southard, 3 Hawks, 119, (1824.)
Adverse Possession .- When a man has obtained a grant of land, he thereby gains a constructive possession, which continues until an actual adverse possession commences ; and that adverse possession must be con- tinued seven years before the jus intrandi or right of possession of the first grantee is lost. Doe ex dem. of Slade vs. Smith, 1 Hayw. 248, (1796.)
Cattle ranging in on land is not such a possession as is calculated to give notice to the adverse claimant that his land is occupied and claimed by another. Doe on dem. of Andrews vs. Mulford, 1 Hayw. 320, (1796.)
A single act of taking possession and then leaving the land will not do. Il.
Feeding cattle or hogs, building hog-pens on land, or cutting wood from it, do not prove an adverse claim, and will not avail as possession, which, to be effectual, must be notorious, 2 Hayw. 56, (1798.)
The possession of part of a tract circumscribed by marked lines is a possession of the whole tract within those lines. Armour vs. White, 2 Hayw. 87, (1799.) S. P. Borrets vs. Turner, 2 Hayw. 97; S. C. 2 Hayw. 113.
The possession which bars must be adverse. Bloss vs. - , 2 Hayw. 223, (1802.)
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Possession of part is possession of the whole, both parties having color of title. Larkin vs. Miller, 2 Hayw. 345, (1805.)
Constructive possession exists only when the party claiming has title to the land, and there is no one in actual possession claiming under the adverse title. McMillan vs. Hapley, 2 Car. Law Repos. 89, (1815.)
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