French & Aven vs. Campbell.

But the present is a different case. It is a case in which, the makers had to pay the note, not to the holder, payee, but to a creditor of his; more, it is a case in which, they had to pay it under a process of law, which was operating on them from a time before the note was even payable-the grond lab ment having been served on them before the inte oue It could not be in their power therefore, to take :: TEA DE TRE either when they paid it, or previously, where gue ment began to act on them. That the mant have not taken it up, therefore, does not a sumption, that the note had been negotiated vice of the garnishment.

On the score of equity, garnishees are e the most favored. On that score then C. feree of the note, has no ground to ask fo presumption in his favor, against Fren

It is easier for him to show when than it is for them to do so.

And then, on the plaintiff is the

out his case. See Harvey vs. Masu, v

1

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up

lainccrued

¿ it up, c., but for ourt below, ging the cases it below, finally dgment rendered up judgment and accrued in all the

below. The counsel ved to have this judg

I that the costs be revis

McGuire et al. vs. Johnson.

DANIEL J. MCGUIRE et al., plaintiffs in error, vs. WILLIAM J. JOHNSON, et al., defendant in error.

[1] The Superior Court may order its Clerk to revise and review a judgment for costs, and order them to be retaxed.

[2] A party cast in the Supreme Court liable for the costs in that Court; and if he eventually succeed in his cause in the Superior Court, he cannot re cover them.

Costs. Decided by Judge LAMAR, November Term, 1858.

McGuire et al., sued William J. Johnson in complaint for land. This case was carried by defendant to the Supreme Court three times and reversed each time; and each time defendant when said case came back, obtained judgment for all the costs which had accrued in both Courts; and the fourth time it was carried up the judgment of the Court below was affirmed, and plaintiffs upon the return of the remittitur entered their judgment for all the costs which had accrued during the progress of the entire case, up to final judgment.

The motion was to retax and review the entire costs in said case; the Court held and or ered that the said defendants in the complainant, Wood & Johnson, were entitled to recover back from plaintiffs the costs they paid for each time they carried said case to the Supreme Court, and obtained a reversal, although plaintiffs finally gained and prevailed in said case; and that their three judgments for costs were valid and unsatisfied, and they were entitled to enforce and Gollect the same.

Plaintiffs excepted and assigned error.

LANIER & ANDERSON, for plaintiffs in error.

STUBBS & HILL, for defendant in error.

McGuire et al. vs. Johnson.

By the Court-MCDONALD, J. delivering the opinion.

The plaintiffs in error, denied the power of the Court below to hear a motion to review and retax the costs in the case, inasmuch as a judgment had been entered for the same by the Court having competent jurisdiction to award the same, which remained in the Court unreversed, and a fi. fa. had been issued thereon.

[1] The Court decided that it had the power, and error is assigned on said decision. We entertain no doubt of the power and jurisdiction of the Superior Court, to hear a motion in Term time, to set aside a judgment entered at a previous term of said Court for costs, and to have the costs retaxed, if an illegal judgment had been entered up, and to order the writ of fi. fa., issued for the same, to be returned and cancelled.

[2.] At each time that the cause on which this controversy arises was brought to this Court, the plaintiffs in error paid all costs which had accrued in the Circuit Court up to the judgment complained of. When the judgments of reversal were respectively remitted to that Court, they entered up judgments against the defendants in error, who were plaintiffs in that Court, not only for the costs which had accrued thereon in this Court, and the expenses of bringing it up, such as transcribing and certifying the record, &c., but for the ordinary costs which had accrued in the Court below, which constituted no part of the costs of bringing the cases to this Court. When the plaintiffs in the Court below, finally succeeded by the affirmance of the fourth judgment rendered in their favor in that Court, they entered up judgment and had execution for the costs which had accrued in all the cases, both in this Court and the Court below. The counsel for defendants in the Court below moved to have this judgment and writ of fi. fa. set aside, and that the costs be revised, reviewed and retaxed by the Clerk. The Court on hearing evidence from the Clerk of the Superior Court, that the

Galloway vs. The State.

WILSON GALLOWAY, plain'iff in error, vs. THE STATE OF GEORGIA, defendant in error.

[1] Where there are cross indictments, the acquittal of the defendant who is the prosecutor in the case about to be tried, is no ground for a continuance; nor is the fact that the prosecutor is a member of an influential family, and of the party in the majority, and politics to some extent was mixed up with the trial which had taken place, and had given rise to excitement.

[2.] Error cannot be assigned on the conclusion of fact of the presiding Judge acting

as trior.

Assault with intent to murder, from Twiggs. Tried before Judge LAMAR, March Term, 1858.

Wilson Galloway was indicted for an assault with intent to murder, and put upon his trial at the March Term of Twiggs Court, 1858, and found guilty. His counsel moved for a new trial on the following grounds:

1st. Because the Court erred in not granting a continuance of the case, when defendant stated under oath, that he could not safely go to trial at said Term, for that the defendant was the injured party, and on whom, and against whose habitation the offence was committed, for which the said Andrew J. Smith was tried and acquitted on the day before. That said Andrew J. Smith is a member of a very influential family in said county, and the political questions of the day have been to a very great extent mixed up with said case, and operating against him, and would prevent him, the defendant, from getting a fair trial at said Term of the Court, and that he, the defendant, being a member of a political party, in the the minority at that time in said county, and said difficulty having originated in political differences, and the public mind being excited against defendant, he could not safely go to trial at said Term of the Comt, and that he did not maïse the application for delay, but solely for the purpose of getting a fair trial.

2d. Because the Court decided Britton Oneal to be a competent juror, when said Oneal was the overseer of B. B. Smith