Allen, Ball & Co. vs. Mayor and Aldermen of Savannah. Judges of a Court of record, in which final judgment has been given, and commanding them, in some cases, themselves to examine the record; in others, to send it to another Court of appellate jurisdiction, therein named, to be examined, in order that some alleged error in the proceedings may be corrected. Steph. Pl. 138. 1 Cowen, 18, 19.. 3 Hammond, 354. [2.] The object of the writ of error is to review and correct an error of the law, which is not amendable at Common Law, or cured by any of the Statute of jeofails. Tidd's Pr. ch. 43. Graham's Pr. B. 4, e. 1 Bac. Abr. Error in pr. 1 Vern. 169. Yelv. 76. 1 Salk. 322. 2 Saund. 46. n. 6. Ibid, 101, n. 1. 3 Bl. Com. 405. Serg. Const. Law, ch. 5. ment and the law. [3.] It is considered a new suit, and it is less an action between the original parties than a question between the judgIt is not the action which is to be judged, but the judgment. 7 Durnf. & East, 337. 6 Port, Rep. 9. 3 Story's Const. Law. §1721. 2 Sand. 101, f. Writs of error are, upon final, as contrasted with interlocu tory judgments, meaning, by the words final judgment, one which determines the particular cause. 1 Wend. 35. 4 Cowen, 82. 6 Johns. 337. 2 Mass. 142. 3 Binney, 531. 9 Pierce, 606. 3 T. R. 78. 2 Salk. 504. Peters, 464, 465. 5 Conn. Rep. 356, 357. Treatise on Error and Appeals, passim. 4 Rawle, 355. 2 Tillinghast & Yates" [4.] The inference to be drawn from these authorities is, that the judgment of the Court below is considered, at Common Law, a final judgment, and the object of the new proceeding by writ of error, is to test this judgment by the law, the result being, on such an examination, either its affirmance or reversal. [5.] By the Act of 1845, as well as by the Common Law, à writ of error is no supersedeas of execution, unless bond and security is given. The first judgment is treated, to all intents and purposes, as a final judgment. Indeed, if it be sustained, none other is awarded. [6.] And the Statute expressly provides that judgment in the Court below, if affirmed, shall not lose any lien or priority by Allen, Ball & Co. vs. Mayor and Aldermen of Savannah. reason of the proceedings in the Court above. Pamphlet Laws, 1845, p. 21. [7.] Our conclusion, therefore, is that the pendency of the writ of error did not affect the judgment of the Superior Court declaring void the ordinance of 1842, imposing a tax upon income. It was binding until reversed, and being affirmed, it was binding, ab initio. The only effect of the judgment of the Supreme Court, in January, 1850, was the judicial ascertainment of the fact, from an examination of the record, that the ordinance of November, 1842, was always a nullity, so far as inincome tax was concerned, the corporation possessing no authority to impose it, and of course was inoperative, on the 8th of December, 1849, when the Act of the Legislature was passed. [8.] Had the judgment of affirmance of the Supreme Court been pronounced prior to the legislative enactment, there would be no doubt or controversy. The effect is just the same, whether made in October, before the Act was passed, or in January, afterwards. It relates back, and takes effect from the date of the first judgment in the spring of 1849. [9.] What is the meaning of the phrase, " in operation," used by the Assembly? According to Webster, and the best lexicographers, operation is defined to be the exertion of power, physical, mechanical or moral-action, as of an army or fleetmovement of machinery. Can an ordinance, which had been pronounced a nullity by a Court of competent jurisdiction, six months previously, and the proceedings under it set aside as illegal, be said to be "in operation," viz: working for the corporation? Instead of being in progress, its motion was completely arrested, never to be again revived. What purpose those who framed this Act may have designed to subserve, we do not pretend to know. Gathering the intention of the Legislature from the language of the Statute, we are of the opinion that the ordinance of 11th of November, 1842, was not "in operation" at the time of the passing of the Act of December 8th, 1849, and was, therefore, not embraced by the terms of the 4th section of that Statute. Allen, Ball & Co. vs. Mayor and Aldermen of Savannah. Whether the 3d section of this Act confers power to impose an income tax, it is unnecessary to decide. It vests the Mayor and Aldermen "with full power and authority to make such assessments, and levy such taxes on the inhabitants of Savannah, or those who have taxable property within the same, for the safety, benefit, convenience and advantage of the city, as shall appear to them expedient." All I can say is, that this grant is exceedingly broad. Let the judgment be reversed. No. 56.-EDWARD BROOKS, plaintiff in error, vs. JOHN C. ASHBURN, defendant in error. [1.] In an action of trespass for killing a slave, the defendant plead the general issue, and at the trial, gave in evidence, by way of justification, that he was acting as a patrolman, under the 44th section of the Act of 1770: Held, that the defendant was not sued for putting in execution any of the powers contained in the Act of 1770, and that so much of that Act as is repugnant to the Judiciary Act of 1799, which requires the defendant plainly, fully and distinctly to set forth his defence in writing, is repealed by the latter Act. [2.] Where a witness who resides in the County in which the suit is pending, and was in attendance under a subpoena on the first day of the Court, and on that day his testimony was taken by commission, who, on the day of the trial, was unable to attend the Court, from bodily indisposition: Held, that the testimony could not be read as that of a witness who was unable to attend the Court from age or bodily infirmity, as contemplated by the Act of 1838. 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