By the Court.
Jlnkins, J.,delivering the opinion.
This is an appeal from a judgment of the Superior Court, on certiorari, sued out to correct alleged errors of three Justices of the Inferior Court of Newton county, upon the trial of a possessory warrant, to try the right of possession, under the Act of December, 1821, entitled: “An Act, more effectually to quiet and protect the possession of personal property, and to prevent taking possession by fraud or violence.”
The record discloses the fact, that this was the third warrant sued out, within the present year, by the same plaintiff, against the same defendant, for the same slaves. The first and second warrants were dismissed by order of the Court of original jurisdiction, but upon what ground does not ap^ pear. Upon the return of the third warrant, counsel for defendant moved, before any evidence had been submitted, to dismiss the warrant upon the ground, that the matters in controversy had been adjudicated in a previous proceeding, by the same plaintiff, against the same defendant, in the same Court, and that the plaintiff was, by said former judgment, precluded from further proceeding by possessory warrant; which motion was overruled, and defendant excepted.
After hearing the evidence and the arguments of counsel, the Court ordered the property into the possession of the plaintiff, upon his giving bond and security in terms of the Act above recited. Defendant’s counsel excepted. And upon these two exceptions, the certiorari was predicated. On a hearing of the certiorari, the Superior Court sustained the judgment of the Court of original jurisdiction, on both grounds, and defendant excepted to these rulings.
1. The orders dismissing the first and second warrants, would, by their terms, indicate that there had been no judg*126ment upon the merits — no adjudication of the right of possession, but a dismissal, owing to some informality, or upon the motion of the plaintiff, who may have desired to strengthen his case. They bear a strong resemblance to-, and are in the nature of nonsuits, either voluntary or compulsory. It must be conceded that a nonsuit, or an order of dismissal in the nature of a nonsuit, might, under certain circumstances, be the appropriate disposition of such a cause. Counsel for plaintiff in error argued, with equal earnestness and ingenuity, that, under the provisions of the Act, no other judgment could be rendered in favor of the defendant. We construe the statute differently. This is its language: “The Judge, or Justice, shall hear evidence, as to the question of possession, in a summary way, and cause the said negroes, or other chattels, to be delivered over' to the party from whose possession the same were violently or fraudulently taken, or enticed away, or from whom the same absconded, or in whose peaceable possession they last were." Let it be remembered that, at the time of the hearing, upon the return of the warrant, the property is in the possession of neither party. In the regular course of procedure, under the explicit directions of the statute, it must have been seized by the officer.
POSSESSION BY OFFICES, ESSENTIAL BEFORE PRIMARY TRIAL BEGINS. “Even with proper parties, the superior court can not, on the hearina: of a certiorari, order the defendant in a possessory warrant to deliver the property to his adversary, without requiring" bond and security from the latter, in terms of the statute, as a condition precedent. Indeed, neither the primary court, nor the superior court, on certiorari, should ever order one party in the warrant to deliver directly to the other. Delivery should first be made to the proper ministerial officer, and by him to the party entitled, on the requisite bond and security being presented and approved. The officer under the magistrate, ought to have possession before the primary trial of the main case is begun.” McClain v, Cherokee Iron Company, 58 Ga. 233, 235.*126It is, at the hearing, in custody of the law, and a judgment of the Court, upon the merits, would seem inconclusive, without, in express terms, awarding the future possession to one or the other. But, recurring to the terms of the Act above quoted, which are directory to the Magistrate trying the case, all doubt vanishes. There are three distinct members of the sentence in this directory clause; the two first of which would seem to indicate the plaintiff as the party into whose possession the property should be ordered, provided, of course, that the evidence justified it. But the third member (which I have italicised), may refer either to the plaintiff or defendant, as the one or the other may appear from the evidence, to be the party “in vahóse peaceable possession they (the chattels) last were.” ■ It will not be denied that cases may, and often do, occur, in which the evidence shows that the defendant is that party. Indeed, if the plaintiff fail to show, by evidence, that the negroes “were violently, or fraudulently taken, or enticed away, or absconded from him, or were last in his peaceable possession,” it results in*127evitably, as between those parties, that they were last in the peaceable possession of the defendant. In that event, the statute is clearly mandatory to the Magistrate, “to cause the negroes, or other chattels, to be delivered to him.” Failing to do this, he would fail in his duty, and this we will not presume against any Magistrate, unless clearly shown. So construing the statute, we can not regard these orders, dismissing former warrants, as adjudications between the parties.
2. The Court below is said to have erred in sustaining the judgment of the Court, of original jurisdiction, awarding the possession to the plaintiff.
It appears, the relation of father and son existed between these parties; that they lived together at the homestead of the father, where these slaves - were; that, at some short time previous, the slaves were certainly the property of the father, and in his possession; that the son superintended his business, and managed his slaves; that the son, upon the marriage of his father, abandoned his home, and took the slaves with him, without his father’s consent. In so doing, he must have used either violence, or enticement. Several witnesses, on behalf of the plaintiff, testified to his possession up to that time. Other witnesses testified, on behalf of defendant, to his control of the slaves, whilst on his father’s place, and to sundry declarations of the father, to the effect, that “he had given up the negroes to defendant,” that “he had given the negroes to defendant,” that “he had given up all his claim to said negroes to defendant.” None of these expressions, used as they were, whilst the parties lived together, necessarily imply change of possession — or any change beyond such control as an agent or overseer would have, unless they be considered as evidence of a gift, involving the idea of a change of possession. But in Bvmis, me, etc., vs. Bozvling, at this term, we have held, that such declarations are insufficient to prove a gift. The weight of evidence is with the defendant in error.
JUDGMENT.
Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be affirmed.