State of Georgia vs. Bell. dispose of the public buildings at Tazewell; to provide payment for the undertakers of the new court house; to levy an extra tax, and for other purposes. The 7th section provides, "That the Justices of the Inferior Court of Marion County shall appoint five commissioners, whose duty it shall be to ascertain the value of the town property in Tazewell, (the same to be fixed at the amount the owners thereof placed upon it in the returns of their taxable property for the year 1847,) and then assess the amount of the depreciation of said property, on account of the removal of the county site, and the said commissioners were required to execute to the owners a certificate, declaring the damage thus sustained; which certificate, it is enacted, shall become a debt against the County Treasury." And it is further provided in the 12th section of the Act, "That for the purpose of discharging the debt incurred by building the new court house, as well as to pay the owners of town property in Tazewell, that the Justices of the Inferior Court be allowed to levy an extra tax, not exceeding seventy-five per centum on the general tax, which, together with the fund arising from the sale of the public property at Tazewell, shall constitute a fund, to be first applied to the payment of the new court house, and for the payment of the damages sustained by the owners of property in Tazewell, ascertained as aforesaid." It is also provided by the Act, "That the certificate shall be received in payment for any conrtact for the purchase of any lot or lots sold in the new county site, contemplated as aforesaid." Pamphlet Laws, 1847, pp. 71, 73, 74. In pursuance of this Act, Andrew Hood, Van Swearingen, Charles Womack, William Williams and William Hirst, were appointed commissioners by the Justices of the Inferior Court of Marion County; and the three first being a majority of the whole number, after being duly sworn to perform faithfully the trust thus delegated to them, did, on the 24th day of June, 1848, proceed to ascertain the value of the property in the town of Tazewell, and to assess the amount of the depreciation of the same, by reason of the removal of the county site, when it was found that Charner B. Strange, the relator, owned town property State of Georgia vs. Bell. of the value of $3127 873, and that the same was depreciated 57 per cent. by reason of said removal. Accordingly, the said commissioners, by virtue of the authority reposed in them by the law, as aforesaid, on the 30th day of June, 1848, certified that the said Charner B. Strange had been damnified $1782 88, and that the said sum was a debt against the County Treasurer of Marion, and to be received in payment of any purchase made by him of property at the new site, and to be first paid out of the extra tax to be levied as aforesaid, and from the money arising from the sale of public property at Tazewell, subject only to the priority of payment on account of the new court house. On the 7th of March, 1849, the certificate thus issued in terms of the Statute, was presented to the County Treasurer, and payment thereof demanded; but William A. Bell, the Treasurer, refused to pay the certificate, alleging as a reason, among other things, that the town property claimed by Strange, and upon which the damages were assessed, did not belong to him, and that he (Bell) had been notified by one William Wells not to pay the said damages, or any part thereof, to Strange or his assigns, as he (Wells) was the owner of said property. A mandamus nisi having been granted by Judge Alexander against Bell, the Treasurer, he sustained the objections thus interposed by the Treasurer at the hearing, and to reverse this decision this writ of error is prosecuted. [1.] Was it a good excuse in the mouth of Bell, the Treasurer, that he had been notified of the existence, real or pretended, of an outstanding title in Wells, or any body else, paramount to that of Strange, in whose favor the certificate had issued? We think not. The Treasurer is not at liberty to inquire into the truth or falsehood of the certificate. Neither is he or the County responsible for it. His duty is to obey the mandate of the commissioners; and having done this, the law casts the ægis of its protection over both him and the County. Nor is there any hardship in this, upon Mr. Wells or any one else claiming to be the true owner of the property upon which the assessment was made. Why did he not interplead, in order to bring the conflicting titles directly before the proper tribunals? Why may VOL IX 43 Lowe vs. Murphy. he not do it still? Suppose no proceeding is ever instituted for this purpose, is the fund to remain forever locked up in the vaults of the County Treasury? The judgment below must be reversed, No. 65.-BENJAMIN T. LOWE, for the use &c. plaintiff in error, vs. JOHN MURPHY, administrator, &c. of JOHN A. Scorт, dec'd. defendant in error. [1.] The plaintiff declared upon the following instrument, "This is to certify that I did, in the year 1844, purchase of B. F. White his tan yard and stock, for which I did promise to pay Benjamin T. Lowe, for the benefit of B. F White, four hundred and seventy-five dollars; which amount I hereby ac-. knowledge to be unpaid and yet due; and one note of hand for fifty-three dollars and fifty cents, which note is said to be lost or mislaid-each amount bearing interest from 1st January, 1845. Held, that the foregoing instrument is, in legal contemplation, a due bill, and may be declared on as a promissory note. Assumpsit, &c. in Harris Superior Court. Tried before Judge ALEXANDER, September Term, 1850. This was an action upon the following account, annexed as a bill of particulars : "John A. Scott to Benj. T. Lowe, for use, &c. To 1 tan yard and stock, Dr. $475 00 53 60 $528 60 Lowe vs. Murphy. Upon the trial, plaintiff's counsel moved to amend their declaration by inserting a count upon the following instrument, describing the same as a promissory note: "This is to certify that I did, in the year 1844, purchase of B. F. White his tan yard and stock, for which I did promise to pay to Benjamin T. Lowe, for the benefit of B. F. White, four hundred and seventy-five dollars, which amount I hereby acknowledge to be unpaid, and yet due; and one note of hand for fifty-three dollars and fifty cents, which note is said to be lost or mislaid: each amount bearing interest from the 1st January, 1845. Sept. 23, 1847. "(Signed,) JOHN A. SCOTT." The Court rejected the amendment, deciding that the instrument was not a promissory note and could not be declared on as such. This decision is the first error assigned. Plaintiff's counsel then moved to amend by adding the following as a count: "And your petitioner further showeth that the said defendant is indebted to him in the further sum of five hundred and twentyeight dollars and sixty cents, besides interest, on a written promise and acknowledgement, dated and due on the 23d September, 1847, which said sum the said defendant refuses to pay." To this count was annexed a copy of the instrument above set forth. The Court rejected the amendment, and this decision is assigned for error. The plaintiff having proved the execution of the above described instrument, offered the same in evidence, under the original declaration. The Court rejected the evidence, and this decision is assigned for error. H. HOLT, for plaintiff in error. BENNING & INGRAM, for defendant. Lowe vs. Murphy. By the Court.-WARNER, J. delivering the opinion. [1.] If the instrument declared on by the plaintiff is, in contemplation of law, a due bill, then it may be declared on as a promissory note. Kemball vs. Huntingdon, 10 Wendell's Rep. 675. By transposing the words of the instrument, without altering its legal effect, it will read as follows: "Due Benjamin F. Lowe, for the benefit of B. F. White, four hundred and seventyfive dollars, for his tan yard and stock, purchased of B. F. White, and fifty-three dollars and fifty cents for one note of hand which is said to be lost or mislaid-each amount bearing interest from 1st January, 1845. JOHN A. SCOTT. "Sept. 23, 1847." (Signed,) The inquiry is, does this paper import an engagement that money shall be paid absolutely? If it does, no matter by what words, it is a good note.. Luqueen vs. Prossen, 1 Hill's N. Y. Rep. 259. In Brewer vs. Brewer, (6 Ga. Rep. 588,) we held the following instrument to be a due bill: "I do hereby acknowledge the credit of three hundred and thirty-two dollars and fifty cents, to be due to the estate of Drewry Brewer, deceased. "August 5th, 1847." (Signed,) CLARK BREWER. See also Carey vs. McDougald, 7 Ga. Rep. 85. We are of the opinion the paper declared on by the plaintiff imports an engagement to pay money, and states also the consideration for that engagement, and is a due bill in contemplation of law, and may be declared on as a promissory note. The amendment offered by the plaintiff to his declaration ought to have been allowed. Let the judgment of the Court below be reversed. |