Couper et al. vs. Rowe et al.

said that $9,200 00, besides interest on the bonds of the county, were due in February and July, 1870, besides $10,000 00 of bonds, to fall due in February and July, 1871, and that one hundred and fifty per centum upon the State tax would raise but $9,481 55.

In support of this showing, defendants presented a report signed by three persons, as the finance committee of the grand jury of the Fall Term of 1870, of the Superior Court of said county, in which they simply said that, "after investigating the Treasurer's books, we find the following statement of the Treasurer of Glynn county correct, and recommend to the Ordinary the necessity of the assessment and collection of one hundred and fifty per cent. on the State tax for county purposes;" and the affidavit of these three persons that the report was correct. Whether this report is the one aforesaid, does not appear. When defendants offered to read said report in evidence, it was objected to because it was a secret of the grand jury and ought not to be made public until the grand jury makes and publishes its general presentments. This was overruled and the report was read. They then read an affidavit from the former Treasurer, in which he affirmed that the grand jury for the former term (July, 1870) had his books and inspected them, thereby showing the financial condition of the county as shown in said books. Here defendants closed.

Complainants read the affidavit of the foreman of the grand jury, then in session, in which he affirmed that the grand jury had not acted upon said report, but had refused to do so, and that Rowe had possession of it "unlawfully." They also read an affidavit by four persons, affirming that they were of the grand jury of the July Adjourned Term, 1870, and that no statement, showing the financial condition of said county, was made to the grand jury, showing the amount of money received and disbursed during 1869, or showing the present financial condition of the county and the amount of tax required to be assessed to carry on the

Couper et al. vs. Rowe et al.

financial affairs of the county. After argument had, the Chancellor refused theinjunction. That is assigned as error.

HARRIS & DAVENPORT, by COLLIER & HOYT, for plaintiffs in error. County tax may be enjoined: R. Code, sec. 537; 27th Ga. R., 354; 8th, 23. The Ordinary of Glynn county cannot act without recommendation of grand jury: Acts 1869, 178; Const. 1868, Art. 11, Sec. IV. This local Act repeals conflicting laws: 8th Ga. R., 23; it repeals sec 545 of R. Code as to Glynn county. This tax is not assessed as required by sections 544, 545 and 550 R. Code. The injunction should have been granted: 18th Ga. R., 47; 8th, 23.

HARRIS & WILLIAMS, for defendants, furnished no brief to Reporter.

WARNER, J.

The Ordinary of Glynn county had no authority, under the statement of facts disclosed by the record, without the consent of two-thirds of the grand jury, to levy the extraor dinary tax of one hundred and fifty per cent. under the Act of 1869. The Ordinary, under the general law of the State, had only the right (in case the grand jury failed or refused to recommend the levy of an extra tax for county purposes) to levy an extra tax not exceeding fifty per cent. on the State tax; provided, the levy of such extra tax was necessary to discharge any judgment against the county, or any debt for the payment of which there was a mandamus against the county, or for the necessary current expenses of the county for that year: Code, sections 543, 545.

And the order of the Ordinary levying such extra tax should clearly and distinctly specify the objects for which such extra tax was levied. It is also the duty of the Ordinary of the county to see that by the time of the organization of the grand jury, there has been prepared by the County

Avera vs. Vason.

Treasurer, under his supervision, a statement of the financial condition of the county, and the amount of tax required to discharge the county liabilities for that year, which should be presented by the Treasurer to the foreman of the grand jury, on the first day of the Court for their inspection: Code, 544. It was error in the Court below to refuse the injunction restraining the collection of the extraordinary tax of one hundred and fifty per cent. as prayed for in the bill of the complainants.

Let the judgment of the Court below be reversed.

GEORGE W. AVERA, sheriff, plaintiff in error vs. WILLIAM J. VASON, executor, defendant in error.

In this case there being no appearance for the plaintiff in error, the defendant moved the Court to open the record, and prayed for an affirmance of the judgment of the Court below, with damages for delay. Held, That the defendant was entitled to an affirmance of the judgment on the statement of facts contained in the record, and that damages be awarded as provided by the 4221st section of the Code for delay in bringing the case up to this Court.

If a sheriff sell land and put the purchaser in possession without collecting the bid, he will be made to pay the money. (R.)

Damages.

Practice. Supreme Court. Before Judge CLARK. Calhoun Superior Court. March Term, 1870.

In September, 1869, a mortgage fi. fa., in favor of William J. Vason, executor of Turner Clanton, against William C. Bray, was issued from said Court. On the 4th of October, 1869, Avera, the sheriff, levied it upon the mortgaged lands. At March Term, 1870, he was ruled by the plaintiff. He answered, that on the first Tuesday of December, 1869, he sold said land to one Dunn, at $2,000 00, but Dunn had not complied with the terms of the sale. He admitted that he had put Dunn in possession of the land, and that

VOL. XLII-16.

Wright vs. McBride.

Dunn then had exclusive possession of it. He asked further time to readvertise and resell the land. The Court granted an order absolute, requiring Avera to pay said $2,000 00 to plaintiff. This was followed by attachment nisi, and attachment absolute. Avera sued on his writ of error, averring that the Court erred in granting the first rule absolute.

When the cause was called here there was no appearance for Avera. Counsel for Vason moved to open the record and have the judgment affirmed, under Rule 22d, of this Court, and asked for damages for delay.

C. B. WOOTEN, for plaintiff in error.

No appearance for defendant.

WARNER, J.

On the statement of facts disclosed by the record in this case, the defendant is entitled to have the judgment of the Court below affirmed, and is also entitled to have damages awarded, as provided by the 4221st section of the Code, for delay in bringing the case up to this Court.

Let the judgment of the Court below be affirmed, and damages be awarded.

F. K. WRIGHT, plaintiff in error, vs. MARTHA MCBRIDE, defendant in error.

When there was no defense to an action on a promissory note and judg ment was rendered thereon, and a motion was made at the same term of the Court to set it aside, on the grounds that it was not signed by the plaintiff's attorney, but by the Judge, as provided by the 38th rule of Court; that the plaintiff was not stated in the judgment as "admin istratrix," and because the judgment did not recite the fact that Wright was "security." The Court overruled the motion and allowed the judgment to be amended so as to insert the word "administratrix," as to the plaintiff, and the word "security," as to the defendant, Wright:

Wright vs. McBride.

Held, There was no error in overruling the motion to set aside the judg ment and allowing the same to be amended.

Held further, That there was no error in the refusal of the Court to allow the judgment to be opened so as to enable the defendant, Wright, to file his plea to the original suit, on the statement of facts contained in the record.

Practice Supreme

Arrest of Judgment. Amendment. Court. Before Judge CLARK. Dougherty Superior Court. June Term, 1870.

The complaint of "Martha C. McBride, administratrix" of James H. McBride, averred, "that James H. Hill and John Wright, surviving partners of the firm of said Hill, Wright & James Marshall, said firm composed of said Hill, Wright & James Marshall, deceased, makers, Frank K. Wright, security," were indebted to the petitioner "$1,687 50, besides interest on a promissory note, dated January 1st, 1860, and due twelve months after date." It prayed process against "said defendant." The process stated the cause thus: "Martha McBride, administratrix, vs. James H. Hill, John Wright and Joseph Marshall, administrators of James Marshall, and F. K. Wright, security. Complaint," and began, "the defendants are hereby required," etc. The copy-note was, "twelve months after date, I promise," etc., and was signed, "Hill, Wright & Marshall. F. K. Wright, security." Hill and F. K. Wright were served. There was a return of non est inventus, as to "John Wright and Marshall." A second original was issued, and on it J. R. Marshall, as administrator of J. F. Marshall, acknowledged service. Another second original was issued and John Wright was served.

No plea was filed, though the suit was brought in 1867. Iu June, 1870, judgment by default was rendered "by the Court for the plaintiff against defendant," for $1,687 50, and interest, and was signed by the Judge officially, but not by the plaintiff's attorneys. During June Term 1870, counsel for F. K. Wright moved to arrest said judgment: Ist. Be-