By the Court
Lumpkin, Judge.This was an action of trespass, m et armis, brought by the plaintiff in error against the defendant, in the Superior court of Washington county. The cause stood for trial on the appeal, before Judge Gamble, at September Term, 1846.
Edmund May was a justice of the peace, and the complaint alleged against him was, that he had issued an attachment against the property of the plaintiff illegally ; the same having been made returnable to the Justice’s Court; notwithstanding the sum sworn to was ninety dollars — an amount exceeding the magistrate’s jurisdiction, which is limited to thirty dollars. It was charged in the writ that the property of Warthen had been seized and sold under this process. It was nowhere averred in the declaration, that notice had been given to the defendant previous to the commencement of the suit.
A demurrer was filed to the action and sustained by the courtbelow, on the ground that one month’s notice of the suit should have been given under the act of 24 George 2.
To this decision of the Circuit Judge plaintiff’s counsel excepted, and the single question submitted for our adjudication is, whether the act of 24 George 2, ch. 44, sec. 1, is of force in the State of Georgia ?
It is contended, on the authority of Blaekstone and the elementary writers, that, inasmuch as this statute was passed in 1751 — nineteen years after the settlement of Georgia by Gen. Oglethorpe — it cannot be made to extend to the colony unless expressly named therein. And we recognize this as a sound rule of interpretation. It is not pretended that an act of the British Parliament merely would bind the provinces. Some have supposed, however, that even where the colonies were not expressly mentioned, yet if from the whole purview of the statute it manifestly appears to have been the intention to include them, such ought to be the construction.
Again: it is urged that this act is not embodied in Schley's Digest of English Statutes, of force in this State. I am hot aware that the validity of any act contained in that valuable compilation has been called in question by our courts. The converse of this proposition, however, is not here. Many statutes, and this among them, have been declared to constitute a part of our law, although omitted in that work. Nor is it easy to perceive why the acts of 11 George 2, for the more effectual securing the payment of rents and prosecuting frauds by tenants, and that of 24 George 2, ch. 45, for the apprehension of per-,] sons in any county, under warrants granted by justices in any other county; should be retained, and that under review rejected. The learned and laborious author, in his preface, puts the adoption of the two former upon the fact that they have been in constant use ever since the 14th May, 1776. As the record of our judicial decisions does not *605extend back to that period, we are unable to form any opinion upon tins averment. We have, however, the testimony of the whole bench of the State, that the act of 24 George 2, has been in force in Georgia since about the beginning of the present century.— Upshaw vs. Oliver et al., Dudley’s Rep. 241.
By our adopting statute, passed in 1784, we have incorporated into our code the acts of the provincial Legislature, which were binding on the inhabitants of the colony in May, 1776 ; and the common laws of England and such of the statute laws as were usually in force at the commencement of the revolution; so far as they are not contrary to the constitution, our laws and form of government. To say what portion of the common or statute laws of England were usually in force in this State at the date designated, is wholly impracticable. Actual usage is the only evidence of adoption in many cases. Hence the importance of the statement in Dudley, that the act of 24 George 2 had been recognized in practice from an early period.
Judge Crawford, clarurn et verier abide nomen, who delivered the opinion of the convention in the case cited, was a practitioner of law shortly after the passage of our adopting statute, and, consequently, his evidence as well as his judgment sustaining this act are highly important.
The rule of construction respecting British statutes I apprehend to be this: whenever the principles upon which they are founded are foreign to our state of society — the manners and customs of our people they do not extend to the colonies, though passed prior to their emigration and settlement. And, on the other hand, whenever, from their subject-matter and provisions, they were suited to our situation and circumstances, they have been practically adopted by our courts, although enacted since the settlement of the colonies. — Palmer et eux vs. Downer, 2 Mass. Rep. 79 n.; Londonderry vs. Chester, 2 New Hamp. Rep. 268.
Indeed, it will be found by reference to the decisions of the courts in our sister States, that they have assumed to discriminate between the different portions of the same statute; adopting some of the provisions, and rejecting others.
Admitting, then, that there was no particular fact known to the court, from which the adoption of this statute might bo inferred, is there anything in it repugnant to our institutions ? On the contrary, is not its operation here as salutary as in the mother country ? It is at best a stringent rule which subjects judicial officers to suit, not for corruption, but an error in judgment only. Is it not a most reasonable requisition that the party aggrieved should give one month’s notice of his intention to sue, to enable the justice to make amends for the alleged injury, and thus relieve himself from the payment of costs ?
This question vitally affects some eight hundred magistrates in the State ; and seeing no good reason why they should be deprived of the protection of this most wholesome act, we take pleasure in affirming the judgment of the court below.