
    The Cherokee Lodge vs. White.
    [Warner, Chief Justice, being engaged in presiding over the senate organized as a court of impeachment, did not sit in this case.]
    1. In claim, cases in tlie justice courts, unless it appears from the record that the plaintiff in execution was claiming interest — the principal being fifty dollars — or that the property claimed was worth more than fifty dollai s, the remedy by certiorari will be upheld.
    2. Though a woman be married prior to the constitution of 1868 and the woman’s act of 1806, yet her acquisitions subsequent to those enactmenls are her own separate estate, and the marital rights of her husband do not attach thereto.
    
      8. Tlie question of fact being in doubt whether the money which paid for the property claimed was acquired before or subsequent to the act of 1866, the superior court was right to remand the case for a new trial.
    Jurisdiction. Certiorari. Husband and wife. New trial. Before Judge Lester. Cobb Superior Court. November Term, 1878.
    White filed his petition for certiorari against the Cherokee Lodge. The petition alleged that “a fi. fa. of fifty dollars,” based upon a justice court judgment rendered January 10, 1877, in favor of the Lodge vs. Walker et al., was, on July 18, 1878, levied on a wagon, which was claimed by White ; and that on the trial it was found subject. The fi.fa. is not copied in the record. In the bill of exceptions it is stated that it appeared to the court that the cause in the court below was “a claim case where a fi. fa. in favor of Cherokee Lodge vs. J. M. Walker et al., for fifty dollars principal debt, with interest and cost of suit thereon, was levied,” etc.
    Erom the petition and answer it appeared that White claimed by virtue of a purchase from Mrs. Walker, the wife of one of the defendants in fi. fa.’, that her husband had bought the wagon for her with money furnished by her in 1874; and that she was married prior to the “married woman’s act” of 1866. But the evidence left it doubtful whether the purchase money of the wagon came from sources arising for her before or after that act. The justice trying the claim case held that having mairied before the act of 1866, “no property received by the wife at any time, even subsequent to the act of 1866, can be her separate estate, except in trust.” This ruling was alleged as error in the petition for certiorari. The value of the wagon was not shown.
    Upon the hearing in the superior court, defendant iu certiorari moved to dismiss the case because the amount involved was more than $50.00, and the remedy was by appeal. The court overruled the motion.
    
      The court sustained the certiorari, and ordered a new trial. Defendant in certiorari excepted.
    W. T. & W. J. Winn, for plaintiff in error.
    Clay & Irwin, for defendant.
   Jackson, Justice.

The petition for certiorari alleged that thefi.fa. leA’ied was for fifty dollars; the ansiver does not set out the fi- fa. at all, nor does it appear by answer or petition that plaintiff in execution claimed any interest. The bill of exceptions sets out, it is true, that the fi.fa. was for fifty dollars and interest and costs, but it does not aver that the plaintiff was claiming any interest. So far as appears to us the plaintiff was pressing his y?, fa. for fifty dollars, and as it does not appear that the wagon was worth more than fifty dollars, the court was right not to dismiss the certiorari. Dykes vs. Woolsey, 62 Ga., 608.

The justice of the peace or notary was wrong in ruling that because the marriage took place prior to 1866, the date of the act vesting in married Avomen their OAvn acquisitions — therefore this woman from whom the claimant derived title to the wagon had no title to convey. If she got the money as her separate estate after 1866, no matter when she married, it Avas hers, and what she bought with it was hers, and she could convey good title. 57 Ga., 412.

Some of the acquisitions of the wife were made before, others after the act of 1866; and there Avas no positive proof that money acquired by her since the act of 1866 paid for the wagon. From the answer of the justice to the certiorari, she kept it mixed ; but as he decided broadly that if she married before 1866, it was all her husband’s, he did not necessarily pass on the doubtful question of what money paid for the wagon — Avhether that acquired before the act of 1866, which would make the wagon her husband’s, and subject it, if he had reduced to possession the property that paid for it, or that acquired since the act of 1866, which would make it bers, no matter what he did about it. There being clear error on this legal point in the justice court against the plaintiff in certiorari, and it being the province of that court to decide on the question of fact, to-wit: what money of the wife was in this wagon — that she got before or that she got after the woman’s right act of 1866 — the superior court was right, in our judgment, to sustain the certiorari and send the case back for a new trial.

Judgment affirmed.  