Beatie vs. Brown et al.

under the tax fi. fa. at the instance of a creditor of the defendant, who has attached the property last levied on, who states in his bill that the defendant is insolvent, and that if complainant is deprived of this means of securing this debt by the action of the sheriff, he will lose it, it being apparant that the sheriff levied the tax fi. fa. for his own protection and not for the benefit of the State.

2. Notice given to one deputy sheriff by the tax collector, under the cir cumstances set forth, to satisfy the tax fi. fa. with the money first made, is notice to all.

Judicial interference. Tax. Notice. Injunction. Before Judge HOPKINS. Fulton county. At Chambers. May 25th,

1872.

David A. Beatie filed his bill against James O. Harris, sheriff, and A. M. Perkerson and W. D. Brown, deputy sheriffs, praying that the sale of certain property levied on under a tax execution in the hands of the defendant Brown, be enjoined. The bill and affidavits read on the hearing of the application for injunction made the following case:

Hannibal I. Kimball absconded from the State of Georgia, in the fall of 1871, owing to complainant $3,718 75, and has since remained absent from said State in a hopelessly insol-. vent condition. At the time Kimball left he owned a large amount of property in the city of Atlanta, including the hotel known as the "H. I. Kimball House." On November 13th, 1871, complainant sued out an attachment upon the debt due to him, which was levied upon certain personal property belonging to said Kimball. Kimball had not paid his State and county taxes for the year 1871, amounting to $6,000 or $7,000, and being chiefly the taxes due upon the H. I. Kimball House, which was assessed as of the value of $650,000. In January, 1872, the tax collector issued an execution which was immediately placed in the hands of deputy sheriff W. D. Brown, with instructions to collect the taxes from the first money received from the sale of Kimball's property. On the first Tuesday in February thereafter, A. M. Perkerson, another deputy sheriff, sold the H. I. Kimball House under what were claimed to be mechanics' liens of Healey, Berry

Beatie vs. Brown et al.

& Co. et al., to Dr. Joseph Thompson, B. H. Hill and George Adair, for the sum of $15,010. Brown notified Perkerson before and at the sale, that the said execution was in his hands for collection, and that the money when received must first be applied to its satisfaction. Before the money was paid out Mr. Hill went to Perkerson and subsequently to the tax collector, and proposed that if Perkerson would pay out the money in discharge of the mechanics' liens first, that he would point out other property upon which no creditor had a lien, from the sale of which the taxes could be made. The tax collector refused to make any such arrangement, as he stated he expected the taxes to be paid from the money already in hand, but Mr. Hill, by indemnifying Perkerson, or by some other means, induced him to appropriate the money to the satisfaction of the mechanics' liens, and at once caused the tax execution to be levied upon the same property upon which complainant's attachment had been previously levied. If the proceeds of this property is applied to the satisfaction of the tax execution, complainant will lose his debt. The bill prayed that the sale under said levy be enjoined, and that said tax execution be entered satisfied.

The Chancellor refused the injunction and complainant excepted, and assigns said ruling as error.

L. E. BLECKLEY; C. F. AKERS, for plaintiff in error. Tax fi. fa. has prior lien: Code, sec. 812. Healey, Berry & Co. et al., were not mechanics: Footman vs. Pusey, Jones & Co., decided January Term 1872; Code, sec. 1970.

No appearance for defendants.

MONTGOMERY, Judge.

of

1. This case may be disposed of by the single remark that section 3618 of the Code was intended for the purpose preventing obstacles in the shape of suits from being interposed between the State and the collection of her revenue, not of being used by parties who may have collected that reve

Ferguson vs. The New Manchester Manufacturing Company. nue under the direction of the tax collector, to shield themselves from liability incurred by them by a misappropriation of the fund collected.

2. The notice given by the tax collector to one deputy sheriff to satisfy the tax fi. fa. out of the first money made, was notice to all.

Judgment reversed.

ANGUS FERGUSON, plaintiff in error, vs. THE NEW MANCHESTER MANUFACTURING COMPANY, defendant in error. Where an affidavit of taxes paid, as is required by the Act of October 13, 1870, was filed within the time prescribed, but the affidavit failed to say that "the plaintiff expected to prove the same on the trial:" Held, That the affidavit is amendable at the trial.

Relief Act of 1870. Tax affidavit. Amendment. Before Judge WRIGHT. Douglass Superior Court. April Term, 1872.

Angus Ferguson brought assumpsit to the October Term, 1871, of Douglass Superior Court, against the New Manchester Manufacturing Company on several notes made before June 1st, 1865. When said cause was called for trial, counsel for defendant moved to dismiss the same, on the ground that the affidavit as to the payment of the taxes, filed by plaintiff, did not state that he expected to prove on the trial that the taxes on the claims, which were the foundation of said action, had been duly given in and paid, as required by law. Plaintiff proposed to amend said affidavit to meet the objection made by the defendant. The Court held said affidavit to be fatally defective, and that the same could not be amended, and directed that the suit be dismissed. Whereupon, plaintiff excepted, and assigns said ruling as error.

COLLIER, MYNATT & COLLIER; POPE & BROWN, for plaintiff in error, submitted the following brief: 1. An affi

Pritchett vs. The Inferior Court of Bartow county.

davit as to payment of taxes is pleading; all pleadings are amendable: Code, sec. 3429. 2. There was no plea or demurrer made in the Court below, on the ground that the demand was barred by the statute of limitations. This Court will not now consider objections on that ground: 6 Ga. R., 207; 9 Ibid., 9; 16 Ibid., 49; 18 Ibid., 534; Const., Art. V., sec. 2., part 2.

WILLIAM EZZARD, for defendant.

MCCAY, Judge.

The substance of the

We think this affidavit amendable. Act is complied with in the original affidavit. It is mere matter of form that is proposed to be supplied. The affidavit is not here the foundation of the proceeding, in the sense of section 3453 of the Code. Judgment reversed.

MARCELLUS L. PRITCHETT, administrator, plaintiff in error, vs. THE INFERIOR COURT OF BARTOW COUNTY, defendant in error.

The declaration of a plaintiff who sues on a written contract must set forth a complete and valid contract, even when suit is brought under Jones' form of pleading. Therefore, in a suit against a county on s bond given, after the adoption of the Code, by the Justices of the Inferior Court, the pleadings must show, affirmatively, that the contract was entered upon the minutes of the Inferior Court. Without such entry, the contract would not be valid, under section 527 of the Code, if good in other respects.

Contract with Inferior Court. Minutes. Pleading. Before Judge HARVEY. Bartow Superior Court. March Term, 1872.

Marcellus L. Pritchett, as administrator de bonis non of Bennett H. Conyers, deceased, brought complaint against the

Pritchett vs. The Inferior Court of Bartow county.

Inferior Court of Bartow county, alleging the following facts, to-wit: That defendant is indebted to petitioner in the sum of $9,765, besides interest, on a bond dated October 27th, 1863, and due January 1st, 1864, with interest from the date of said bond, which said defendant refuses to pay.

To the declaration was attached the following copy bond:

"MANASSAS, GEORGIA, October 27th, 1863.

"STATE OF GEORGIA-BARTOW COUNTY:

"Be it known, that the county of Bartow owes to Bennett H. Conyers or bearer the sum of nine thousand seven hundred and sixty-five dollars, for the amount paid by him this day into the treasury of said county, for the support of soldiers' families, in accordance with the provisions of an order passed by the Inferior Court of said county on the 6th day of February, 1863, which sum of money the said county of Bartow promises to pay the said Bennett H. Conyers or bearer on or before the 1st day of January, 1864, with interest at the rate of seven per cent. per annum, from this day. This bond shall be received in payment of county taxes, or other debts due the county.

"In witness whereof, the Clerk of the Inferior Court and the County Treasurer have hereunto set their hands and attached the seal of the Inferior Court of said county. Done by order of the Inferior Court of Bartow county, this 27th day of October, 1863.

(Signed) "B. F. GODFREY, Clerk Inferior Court. [L. s.] "ARTHUR HAM, County Treasurer. [L. S.]

"$9,765."

The defendant demurred to the declaration. The demurrer was sustained by the Court and the action dismissed. To which ruling defendant excepted, and assigns the same as

error.

WARREN AKIN, for plaintiff in error.

A. JOHNSON, represented by LESTER & THOMSON, for defendant.