Parker vs. Johnson, adm'r.

plaintiffs witness, Dr. Boon, says, the symptoms are increased by active labor and severe exercise. Dr. Green for defendant, says, that any kind of active labor or severe exercise, is sure to develop them. There is no discrepancy in this testimony. It may stand together. Dr. Boon does not say that this disease, if existing in a subject living in a quiet state, indicating no symptom of its presence, would not be surely developed, if that subject were put to active labor or severe exercise. If this be true, and the testimony of the witnesses, in this respect, may be reconciled in this way, the verdict is decidedly against the weight of evidence; for the evidence of the defendant is, that the negro was kept in active service performing labor down to the day of sale, and exhibited no symptom whatever of disease, and had all the appearance of health. After the sale, for two months and two days, she had led an inactive, quiet life, and down to the night of her death, made no complaint, and exhibited no symptom indicating the presence of the disease.

If, with labor and exercise, the disease would always be developed, and without them, it might not, the inference would be, that it had its origin after her habits of labor and exercise had ceased. In respect to the abstract professional opinions of the witnesses, which I shall not attempt to reconcile, I will remark that, if they be irreconcileable, they balance each other, as the witnesses are equal in number, and nothing appears in the record to entitle the witnesses of one party to more credit than the other.

Judgment reversed.

The Mayor and Council of Macon vs. Hays, adm'r of Shaw.

THE MAYOR AND COUNCIL OF THE CITY OF MACON, plaintiff in error, vs. SAMUEL HAYS, admı'r, &c., of HARVEY W. SHAW defendant in error.

If the city authorities remove its Marshal for a specified cause, and it be determined that such cause did not warrant the removal, and the Marshal sue for his salary and fees, the city authorities may aver and prove other matters good in law to justify the removal.

Assumpsit from Bibb. Tried before Judge LAMar, May Term, 1858.

Shaw was removed from the office of City Marshal, and brought his suit for the salary and fees which belonged to the unexpired part of his term.

Defendant pleaded neglect of duty on the part of plaintiff, in not reporting offenders against the law punishing gambling, and gambling on the part of plaintiff himself, while in their employ as Marshal, &c.

On the trial, the reports and decisions of the Supreme Court in this case, and the evidence reported therein, were read by plaintiff, under agreement of counsel, which are to be found in the 16 Ga. 172, and in the 21 Ga. 280, and in the latter volume, the evidence of A. R. Freeman was read instead of of using him on the stand.

Benjamin Allen testified, that the perquisites of the office of Marshal, for the year 1853, amounted to at least two dollars a day. Plaintiff here closed.

The defendant offered to introduce Victor Menard to prove that Shaw, while acting as Marshal in 1853, saw John Chain and others, bet and play cards for money, and did not prosecute them. The Court refused to admit it. Whereupon defendant's counsel excepted.

The case proceeded, and to many of the rulings, charges of the Court, and refusals to charge, defendants excepted, and assign the same as error. All of which, except one, are omit.

The Mayer and Council of Macon vs. llays, adm'r of Shaw.

ted, as the judgment of the lower Court is reversed upon the exception taken to the ruling out of the testimony of Menard.

The verdict was for plaintiff, whereupon defendants tender their bill of exceptions.

POE & GRIER, for plaintiff in error.

LANIER & ANDERSON; and STUBBS & IIILL, for defendant in error.

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

The defendant's intestate was Marshal of the City of Macon, in the year 1853.

Ta: Mayor and Council of the City removed him fron office, let mining, that by gambling within the corporate limits, he had been guilty of mal-practice in office and neglect of duty. The Judge of the Superior Court of Bibb county, upon a writ of certiorari, quashed the proceedings of Council, and his judgment was affirmed by this Court, 16 Ga. Harvey W. Shaw, the dismissed Marshal, the plaintiff's intestate, instituted suit for the recovery of his salary for the balance of his term remaining unexpired at the time of his removal, and for the fees to which he would have been entitled, if he had not been removed.

On the trial, the defendant offered to prove by Victor Menard, that the plaintiff's intestate, while acting as Marshal in 1853, saw certain persons bet and play at cards for money, and that he did not prosecute them, The Court refused to admit this evidence and defendants excepted. The presiding Judge excluded the evidence, no doubt, on the view which he took of the judgment of the Court above cited, in which it was held that the Marshal was improperly removed for the cause specified in that record. When he sues for his fees, however, the case comes up in a different aspect, and the defendants may plead and prove any cause which would jus

Laramore, et al. vs. Chastain.

tify the removal, so far as it respects his duties as an officer of the corporation. To violate a public law, may not be a breach of duty as such officer, and that is all that this Court decided in the case first brought up. But if there was other gool cause for the removal of the intestate, as Marshal, there is no good reason why the case should not be defended on that ground. If his term of office had not expired, when this suit was instituted, and he had moved for a man lumus to restore him, instead of bringing an action for his salary and fees, the Court would not have interfered, if good cause for his removal would have been shown, although he may have been removed without notice. Rex. vs. Mayor & C. of Axbridge, 2 Cowper 523. The King vs. the Mayor & C. of London. 2 Term Rep. 182.

This Court has held that for offences committed, in his presence, within the corporate limits of the city, it was the duty of intestate as Marshal to prosecute without notice. It was the object of the witness Menard's evidence to establish a breach of duty in that respect. If such evidence would have been admissible against him on an application to be restored to office, it is certainly admissible to disprove his right to salary and fees, for if he was not entitled to his office, he could not be entitled to salary and perquisites.

Judgment reversed.

J. L. LARAMORE, et al., plaintiffs in error, vs. J. M. Chastian defendant in error.

[1.] This Court will not interfere with the order of business, unless it appears that the presiding Judge exercised his discretion in that respect illegally.

Laramore, et al. vs. Chastian.

[2.] If a party acknowledge service, at the appearance Term of the Court, of the process and complaint, he shall not be allowed to dismiss the cause for want of service, at the trial Term.

Complaint from Lee. Tried before Judge ALLEN, September adjourned Term, 1858.

When this case was called, counsel for defendant objected to taking it up because it was not in its order, but called at the instance of the Attorney for plaintiff. The Court overruled the objection and defendants counsel excepted.

It appeared that acknowledgment of service was made by Laramore, one of the defendants at appearance Term. That the Sheriff had not served him in consequence of an agreement that he would always acknowledge service, on any case against him, and he did sign this acknowledgment in pursuance of that agreement.

Defendant's counsel moved to dismiss the writ for want of proper and legal service.

The Court overruled the motion and defendants excepted. Upon these exceptions error is assigned.

FRED. H. WEST, for plaintiffs in error.

WARREN & HUMPHRIES, for defendant in error.

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

[1.] It does not appear in this record in what respect the cause was called out of its order, and without evidence before us that the Court exercised his discretion in ordering the business of the Court illegally to the prejudice of the party complaining, we will not interfere with him.

[2] At the request of the defendant who is plaintiff in error, the Sheriff did not serve him with the process and copy complaint, on the promise that he would acknowledge service. He did acknowledge service at the appearance Term. VOL. XXV.-38