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McGuire et al. vs. Johnson.

of the cause to be paid by the plaintiff in error in this Court, which includes those expenses which are necessary to bringing it here, such as attend the suing out a bill of exceptions, procuring the transcript of the record, &c., but it does not apply to the costs which have accrued in the Court below, which the plaintiff in error may pay or not as he chooses, but which he is not compelled to pay, unless he wishes to obtain a supersedeas: Brewer vs. Brewer, 6 Ga. 587. I believe, in practice, expenses of the Clerk in the Court below are never collected in this Court. These costs, the costs incurred by bringing the cause to this Court, must be paid by the party, by process to be sued out in the Court below, against whom the judgment of reversal is pronounced in this Court. There is no authority for taxing them against the party who may be eventually cast in the Court below It is the fault of the party who insists on the erroneous judgmeut, and he must pay the penalty. It is otherwise, however, in regard to costs which have accrued in the cause in the Court below. According to usage and practice, and we may say law, the party eventually cast in that Court must pay all costs which accrue in the cause there. In this case, the defendants who were plaintiffs in error in each of the causes brought to this Court, paid all costs which had accrued in the Circuit Court up to the time of the judgments complained of, and they seek now, though finally cast in their suit, to recover from the plaintiffs that portion of the costs as well as the costs in the Supreme Court. That they cannot do.

The party who finally loses the case in the Superior Court, must pay all costs which have accrued in that Court, excluding therefrom all costs and expenses to which he may have. been exposed in carying the cause to the Supreme Court, in case, in that Court he obtained a judgment of reversal.

Judgment reversed

Holman vs. Carhart, Bro's & Co.

DAVID HOLMAN, plaintiff in error, vs. CARHART, BROS. & Co., defendants in error.

[1.] A plea by one of two persons sued as partners, that he did not sign the note sued on, or authorize any other person to sign it for him, and that he was not one of the partners, when the debt was contracted, is not a plea in abatement. but a plea in bar.

[2] Collier vs. Cross, 20 Ga. R. 1, remarked on.

Complaint, from Randolph county. Tried before Judge KIDDOO, May Term, 1858.

Carhart, Bro's & Co., sued John W. Shropshire, David Holman and Christopher Holman, as partners, doing business as Shropshire & Holman," on a note and account against said firm.

At the trial Term, David Holman filed his plea denying that he was a member of said firm at the time the debt sued on was contracted, and that he was not liable therefor, and moved to continue the cause as to himself, for the absence of Christopher Holman, against whom the suit was not progressing, he not being served, by whom he expected to support his plea, and made the usual oath for a continuance.

The Court overruled said motion, on the ground that the plea filed was in abatement and must be filed at the first Term, and the witness could not be permitted if present, to testify in support of the plea.

To which counsel for Holman, excepted.

On motion of plaintiff, the plea of defendant, Holman, was then stricken, and defendant by his counsel excepted and assigns error.

GEO. L. BARRY, for plaintiff in error.

HOOD & ROBINSON, for defendants in error.

Holman vs. Carhart, Bro's & Co.

By the Court.-BENNING J. delivering the opinion.

The plea of David Holman was, that he did not "sign" the note, or authorize any one to sign it for him, and that he was not a partner in the firm of Shropshire & Holman at the time when the debt was contracted and the note given.

[1] Surely this is not a mere plea in abatement. It must be a plea in bar. The word "sign" is used in place of the more usual and more comprehensive word, make; but that, if a defect, is amendable; at all events, is not a thing to make the plea, a plea in abatement. It is a plea intended to deny" the "note" sued on. A plea denying the note sued on, is a plea in bar.

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[2.] In Collier vs. Cross, this Court held, (Judge LUMPKIN not presiding,) that a somewhat similar plea was not good; but did not hold that it was a plea in abatement. And that decision I now think wrong, unless there were some facts not reported, to support it, I must think, however, that there were some such facts, although, I cannot remember any. I must think, that the plea lacked being sworn to, or that there was some other special ground of objection to it. See Straus vs. Barry & Co., decided at this Term.

If the plea in the present case was a plea in bar, it is clear, that the motion for a continuance ought to have been granted; and it is equally clear, that if the plea was defective, it was amendable, and ought not to have been struck out, provided an offer to amend it was made.

Judgment reversed and a new trial ordered.

VOL. XXV.-39.

Jones vs. The Mayor and Council of the city of Columbus.

SEABORN JONES, plaintiff in error, vs. THE MAYOR AND COUNCIL OF THE CITY OF COLUMBUSs, defendant in error.

[1] The title of an Act amending a former Act of the Legislature, may be looked to, as well as that of the original Act, to ascertain if the amending Act has any matter different from what is expressed in the title.

[2.] A city having the right to tax slaves employed and laboring in the city, belonging to persons resident out of the city, may discriminate in the amount of tax imposed on them respectively.

[3] The Mayor and Council of the City of Columbus, have no power to impose a tax on real estate within the city, to pay the city bonds issued to build the Mobile and Gizard Railroad, there being no Act of the Legislature authorizing it.

Illegality, from Muscogee county. Decision by Judge WORRILL, May Term, 1858.

Seaborn Jones filed an affidavit of illegality to certain executions, in favor of the Mayor and Council of the city of Columbus, against him, on the grounds:

1st. That the defendant resides without the limits of the City of Columbus, and the Act which authorizes said Council to levy taxes on the property of citizens and residents of said city, and the other Acts amendatory of the same, contain matter different from their title, and are unconstitutional.

2d. That one of the executions is for tax on negroes of defendant hired in said city, and more tax is imposed on that kind of property belonging to non-residents, than on that of residents within the limits of the city.

3d. That a tax is levied for the purpose of paying bonds issued by the City Council of Columbus, for the building of the Mobile and Girard Railroad, and said Council had no authority to levy such tax according to the law.

On the hearing, the Court overruled said affidavit and ordered the executions to proceed.

Jones vs. The Mayor and Council of the city of Columbus.

Whereupon, said Seaborn Jones excepted, and assigns

error.

JONES & JONES, for plaintiff in error.

HINES HOLT; and THOS. SLOAN, for defendant in error.

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

[1] The plaintiff in error resides without the limits of the City of Columbus, and he insists that the existing Acts of the Legislature authorizing the Mayor and Council of that city, to raise revenues for any purpose, from the property of persons non-resident in the city, are anconstitutional, and that, therefore, the tax imposed on his property within the limits of the city, is illegal. The alleged ground of unconstitutionality is, that the Acts, so far as they impose a tax on the property of non-residents of the city, contain matter different from what is expressed in their title. The title of the Act of 1841, confines its purpose to the imposition of a special tax on the persons and property of the city of Columbus, residing and being within the same; but the Act of 27th December, 1845, according to its title, is "to raise a revenue. for the City of Columbus, amendatory of the Act of 1841." The part of that Act which imposes a tax on slaves employed and laboring in the city, belonging to non-residents of the city, is repealed by the Act of 1847, which latter Act immediately imposes another, but lower tax on the same description of property. The title of the Act of 1847, is to amend the Acts of 1845, and recites the captions of both Acts. The title of the Act of 1845, recited in the caption of the amending Act of 1847, "to raise a revenue for the City of Columbus," is broad enough to admit any provision for that purpose in the body of the Act, and the addition of the words "amendatory of the Act of 1841," cannot restrict the power of the Legislature to the objects of the Act of 1841, as ex

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