Stone vs. Wetmore. cents: Section 806, paragraph 3. This is the poll tax. It, then, by various paragraphs, taxes lawyers, doctors, etc.: Section 806, paragraphs 1, 2, 4, 5, 6, 7, 8, 9. So, too, did the Legislatures of 1868 and 1869. And such has always been a distinction, kept up in this State. It is founded, too, in fact. The skill, or education, or tact, which is the source of profit in these occupations, is clearly distinguishable from that capacity which is in every man to work for his support with the hands which God has given him. Judgment affirmed. AMHERST W. STONE, plaintiff in error, vs. HENRY S. WETMORE, defendant in error. Pending a controversy, under a quo warranto, against one in possession of a public office, a Court of Equity has no jurisdiction to enjoin the de facto officer from receiving the fees of the office, nor to appoint a Receiver to take and hold the same same until the controversy is settled. Quo Warranto. Injunction, etc. Before Judge SCHLEY. Chatham County. Chambers. March, 1871. Stone averred that he was the Ordinary of Chatham county, duly commissioned, in possession of the records and exercising the functions of the office; that during his temporary absence from Savannah, Wetmore, without authority of law, took possession of said office and records, and is assuming to act as Ordinary and is receiving the fees of the office, which are worth, say, $100 00 per week. He filed a petition for quo warranto to eject Wetmore, but the Court refused to grant it, and that cause is before this Court upon writ of er ror. As some time must elapse before this cause can be finally disposed of, and as Wetmore is insolvent, he prayed injunc VOL. XLII-39. Stone vs. Wetmore. tion against his receiving such fees, and that they be paid to a Receiver, to be held subject to the final decision of this controversy. This bill was demurred to, and the Court refused to grant any part of the prayer. That is assigned as error. W. DOUGHERTY, A. SLOAN, A. W. STONE, for plaintiff in error. HARTRIDGE & CHISOLM, JACKSON, LAWTON & BASSINGER, for defendant MCCAY, J. If the defendant in this case is an intruder into the office, attempting without any show of right to exercise its duties and receive its fees, if he is, in fact, a mere trespasser, with no right to claim its proceeds, then any one who pays them to him, does so at his peril; his acts are all void, the receipt of the fees cannot hurt the complainant. But, if, as must be assumed, in order to give any show of foundation for this bill, he is a de facto officer, performing the duties of the position under such circumstances as justify him in demanding and receiving the fees, we know of no authority to justify a Court of Equity in interferring. To do so, would practically decide the dispute as to right to the office. Το For purposes of public policy, it is a settled rule that an officer de facto may do legal acts, though his title to the office may be defective: Code, section 120. The same public policy which establishes this rule, prevents the Courts from interferring to disturb the de facto officer in the receipt of the fees. If he works he must live. The law authorizes him to demand his fees on the performance of the work. The prac tice is universal for the Ordinary to demand his fees, and not to deliver to the parties their letters, certificates, etc., until their fees are paid. We should hesitate to hold an Ordinary Stone vs. Wetmore. bound to do the duties of his office for one who failed or refused to pay him the fees fixed by law. To appoint a Receiver to take the fees would be to authorize the Ordinary to refuse to perform the duties of his office. Suppose it were necessary, as it sometimes is, to enforce the collection of fees by execution or by attachment, is the Receiver to do this? Is the Ordinary to issue the process in the name of the Receiver? Is the Receiver to sit by and take the fee for every marriage license, every set of letters of administration, every order or certificate the Ordinary may grant? Or is the Ordinary, when he receives the fees, to pay them over to the Receiver? It seems to us that to set up such a power, in a Court of Chancery, is to assume a jurisdiction over constitutional functionaries that is contrary to law, contrary to public policy, and contrary to all the authorities: 9 Paige R., 507; Cooper vs. Reilly, 2 Sim., 561; 10 Beavan, 544, 545; 9 Paige, 507; 2 Paige, 333; Edwards on Receivers, 57. In England, as a general rule, a Receiver will only be appointed when there is a suit pending-a controversy in the Court: 1 Atkins, 578-except in some special cases, as in protection of the interests of lunatics and infants, and when the Court interferes as the general guardian of that class of persons. Here, there is no controversy in the Court. The proceeding is at law, over a legal matter, and depending on legal, not equitable, rights. The power to appoint a Receiver, provided for in section 265 of the Code, is not to the Chancellor, but to the Judge of the Superior Court. Upon the whole, we are satisfied that the demurrer to this bill was properly sustained. Judgment affirmed. Wimberly vs. Brown et al. HENRY S. WIMBERLY, plaintiff in error, vs. R. A. BROWN et al., defendants in error. Where A, as administrator of C, filed his bill of interpleader, in which he alleged his intestate left property to which he held bond for titles from Collier, that the property had been sold and the fund arising therefrom is claimed by several persons who allege their priorities, who were made parties, and on the hearing it appeared that one of the claimants held a judgment lien against the vendor, and the main question was whether a transferee of the notes given for the purchasemoney by such vendor was entitled to priority over said judgment, etc.: Held, Under the facts in this case, the verdict of the jury, decreeing a good title to the purchaser upon his full compliance with the terms of sale, and in favor of the administrator for his actual expenditures upon the property, and for administration fees and reasonable counsel fees, was correct. But it was error to apply the balance of the proceeds arising from the purchase-money to the payment of the notes transferred by the vendor in preference to the judgment lien against such vendor; and we direct the decree to be so entered as to apply the balance first to the payment of such judgment lien. Lien of Judgments and of Vendors. Before Judge CLARK. Dougherty Superior Court. June, 1870. So much of this proceeding as is needful for an understanding of the opinion, is as follows: Cargile filed his bill containing the following averments: In January, 1865, S. S. Crawford died in said county, intestate, and, in default of other administration, it was cast upon him, he being Clerk of the Superior Court. His household furniture, etc., were assigned to the widow for her year's support, and $200 00 was assigned to her in lieu of dower. Crawford left no other property but a house and lot in Albany. He had continuously occupied said premises since 1858, and Cargile did not doubt that they were his, though he could find no writing showing his title thereto. The premises needed repairing to fit them for sale, etc., and Cargile advanced the money to make these repairs. The rent of the property, ad interim, Wimberly vs. Brown et al. had partly repaid these outlays, leaving a balance of say, $121 00 due Cargile. When Cargile was about procuring an order to sell said property to pay Crawford's debts, he was informed that Collier had sold said land to Crawford, giving him a bond for titles, and taking his notes for the price. But he could find no bond, and Collier says he has lost the note. He agreed with Collier that he would establish the bond for titles, and that Collier should establish the note, that he would sell the land and first pay Collier the sum due him for balance of purchase-money, so that the purchaser at the administrator's sale would get a good title. Accordingly, Cargile sold said land in May, 1867, at regular administrator's sale for onehalf cash and the balance on credit. Brown bid off the land at $1,000 00, gave his draft on Rust & Johnson for $500 00, which they accepted, and gave his note for $500 00, with Rust & Johnson as security, in compliance with his bid. But Collier now claims $750 00 as balance due on his notes for purchase-money, whereas Cargile had understood the amount to be but about $200 00. Because Cargile will not consent to pay the $750 00 Collier will not make a deed to the land, and because he will not, Rust & Johnson and Brown refuse to pay said draft and note. They also refuse to pay Cargile because Wimberly claims a lien on said land. In 1856 or 1857, Wimberly obtained a judgment at common law against Collier, from which Collier appealed, pending which appeal Collier sold said land to Crawford. Wimberly obtained a final judgment in said cause in December, 1866, against Collier, and now claims that said land is subject to the lien of said judgment. This judgment is for more than the house and lot are worth. Cargile claims that the Statute of limitations protects the land from that lien. Besides, one Chafin has a small judgment, obtained in April, 1866, DeGraffenried holds another, obtained in January 1861, and Fears another obtained in 1860, all against Crawford. Crawford also owes other debts not in judgment. Because of the |