Harper v. Commissioners of Elberton
Supreme Court of Georgia
Illegality, from Elbert Superior Court. Decided by Judge Thomas, at September Term, 1857. The commissioners of the town of Elberton, issued a f. fa. against William H. Harper, to collect the sum of $15 57, the amount of tax assessed by said commissioners against Harper.
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Illegality, from Elbert Superior Court. Decided by Judge Thomas, at September Term, 1857. The commissioners of the town of Elberton, issued a f. fa. against William H. Harper, to collect the sum of $15 57, the amount of tax assessed by said commissioners against Harper. The marshal of the town levied the fi. fa. upon a buggy and harness belonging to Harper, who filed his affidavit of illegality upon the following grounds, to-wit: 1st. Because the fi.fa. issued without allowing1 deponent a trial by jury. 2d. Because the fi. fa. is not signed by three of the commissioners. 3d. Because the…
1Opinion of the Court
By the Court. —
Benning, J.
delivering the opinion.
The Court below overruled the affidavit of illegality. Was the Court right in doing so? That depends, of course, upon whether any of the grounds of the affidavit, were good or not.
The first of those grounds was, that the defendant in fi.fa. had not had a jury trial.
[1.] But the case was one of a kind in which, at the time of the adoption of the Constitution, jury trial had not been “ used.” Therefore, it was one to which, the words of the Constitution, — “trial by jury as heretofore used in this State, shall remain inviolate,” did not apply.
Ther…
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