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Hackett rs. Jones.

is money in hand or not; it is granted as matter of right if the costs be rightfully due. What then is the effect of this order? It does not create a lien it is true upon all money to be realised from fines and forfeitures, as we understand liens at common law, but we are not sure that a Chancellor would not pronounce it an equitable lien. But further. The Solicitor General is an officer of the law; he holds his office by legislative appointment, and to his office are attached certain fees, the fees for example, which we have designated as costs, to pay which, the legislature has set apart the proceeds of fines and forfeitures. He goes into office under a contract therefore with the State, that in consideration of the services which his office requires at his hands, he shall receive the fees attached to it, and in the manner and out of the fund appointed by law. Clearly the legislature could not violate their contract with him and order these fees to be withheld; he has by legislative appointment, so soon as, according to the directions of the law his account has been allowed by the court, an interest in the fund, which the legislature cannot divest. The order for payment is the evidence of that interest, and in our judgment constitutes a charge upon the fund, which the legislature itself cannot annul. If the legislature cannot annul, or revoke, or disallow this order, and the interest represented by it, can the courts do it in favour of a like claim set up by a successor in office? We think they cannot. We concede, that as between the legislature and himself, the successor has the same rights in this fund that his predecessor had; but his rights yield to those which have already vested in his predecessor, for this reason, that he takes the office burdened with those rights. It is part of his contract with the legislature, that the fees in arrear to his predecessor shall be paid; and the same rights obtain in his favour as against his successor. We are satisfied with this construction, the more, because it is equitable. The construction of the Court below defeats altogether the claim of Colonel Hackett; ours secures the ultimate payment of both officers. The judgment of the Court below is reversed.

Morris vs. Wiley, Parish & Co.

No. 43. JAMES MORRIS, plaintiff in error vs. LEROY WILEY, PARISH, & Co. defendants in error.

[1.] In a writ of error on a judgment against an appellant, and his security on the ap peal, both must be joined.

Motion to quash the writ of error.

The plaintiff in error was claimant and appellant in the case in the Court below. The case was tried on the appeal before Judge WRIGHT, in Murray Superior Court, September Term, 1846, and resulted in a judgment against the plaintiff in error and his security on appeal. In the course of the trial below, several exceptions were taken to the decision and charge of the Circuit Judge, and the plaintiff in error sued out this writ alone, omitting to join with him in the writ his security on the appeal. This omission is the ground of defendants' motion to quash.

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TRIPPE, for the plaintiff in error.

HANKS & AKIN, for defendants.

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

A preliminary motion is made to quash this writ of error [1.] for want of proper parties. Upon the authority of Dill and others vs. Jones, decided at Talbotton in January last, this application must be sustained. In that case there were two sureties, one of whom had been joined and the other omitted; and the rule was, for the plaintiff to show cause why the writ should not be quashed, either on account of the mis-joinder or non-joinder of the proper parties. The point was fully discussed, and, after taking time to consider, the Court made the rule absolute and dismissed the writ, because of the non-joinder of all the parties. Subsequent reflection and research have satisfied us of the soundness of the judgment then rendered.

That all the parties, whether plaintiffs or defendants, must join in a writ of error, is a position abundantly settled by the courts.

In Deneale and others vs. Stump's executors, 8 Peters R. 526, Chief Justice Marshall says: "The present writ of error is brought by

Morris vs. Wiley, Parish & Co.

Mary Deneale and others,' as plaintiffs; but who the others are cannot be known to the Court, for their names are not given in the writ of error, as they ought to be. Mary Deneale cannot alone maintain a writ of error on this judgment, but all the parties must be joined. The present writ of error must therefore be dismissed for irregularity."

In Cook vs. Conway, 3 Dana R. 454, the Court of Appeals of Kentucky, held, that all the defendants to a joint judgment must be parties to a writ of error to set it aside.

In Shirley vs. Lunenburg, 11 Mass. R. 379, the Supreme Court of Massachusetts held, that all the plaintiffs or defendants in an original suit, who are alive, must join in a writ of error, and this must be done, even if some of them should choose to abide by an erroneous judgment; and a summons and severance will take place of such as choose not to prosecute the suit.

A series of adjudications in the neighbouring State of Alabama, have established the same principle. Swift vs. Hill, 1 Porter R.277; Jameson vs. Collum, 1 Stew. & Port. R. 253; Tombeckbee Bank vs. Freeman, Minor R. 285; Eastland vs. Jones, Minor R. 275. The case last cited is very similar to the one under review. A suit had been instituted before a Justice of the Peace by Jones & Stephens ts. Eastland; judgment was given in favour of the plaintiffs; Eastland appealed to the Circuit Court, and one William D. Wallace became bound with him in the appeal bond. The Circuit Court affirmed the judgment of the Justice of the Peace, and rendered judgment pursuant to the statute, against both Eastland and Wallace his security. Eastland sued out a writ of error in his own name to reverse the judgment of the Circuit Court, and a motion was made to quash the writ of error on the ground of the nonjoinder of Wallace. It was contended for the plaintiff in error, that as Wallace was not an original party, and only came in as security, the writ was properly sued out in the name of Eastland alone. But the Court, in its opinion, declared the rule to be well settled, that all the parties in interest who were to be affected by the proceeding, and who were parties to the case below, should join in the writ of error.

In England, as well as in our own country, from the earliest reported cases, the same doctrine has been uniformly maintained. Roll Abr. 747; Dyer 89; Hacket vs. Herne, Carth. R. 7; Walter vs. Stokal, 1 Ld. Ray. R. 71; Brewer vs. Turner. 1 Str. R. 233; Knox vs. Costello, 3 Burr R. 1789.

Morris vs. Wiley, Parish & Co.

So much for precedent; then as to the reason of the thing. The act creating this Court, 1 Kelly's R. p. vii, declares that "if the decision and judgment below be for any sum certain, and be affirmed in the Supreme Court, the plaintiff may in the Superior Court enter judgment against the defendant and his securities for the amount of principal, interest and costs, as shall have been conferred or found by a jury, and ten per cent. damages on the principal sum, and have execution immediately, unless one or more of the judges shall certify that in his or their opinion such cause was not taken up for delay only."

How important therefore, that every person to be directly affected in his interests or rights by the ultimate judgment of this Court, be made a party and have an opportunity of being heard. Nor can one of several parties be subjected to the hardship and loss of being deprived of his writ of error because the others refuse to join in it; one may sue out a writ of error in the name of all, and if the others refuse to join in the prosecution, they may be brought before this Court and severed at their own request, after which, he or they who sued out the writ of error may go on alone. In this manner all inconvenience may be avoided, justice administered, and the harmony and conformity of the record preserved. The cases cited from Alabama and elsewhere, are precedents in support of this process of summons and severance, as well as upon the main question involved.

I have not had an opportunity of reading the opinion of this Court, in the Talbotton case, since it was written out by my brother Warner. In my attempt to fortify the judgment then rendered, I may have travelled over the same ground occupied by my colleague. We are of the opinion, that one plaintiff or defendant alone, where there are several to the judgment below, whether as original parties or sureties, cannot prosecute a writ of error, and that this writ should be quashed.

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Harris vs. The State of Georgia.

No. 44.-WILLIAM W. HARRIS VS. THE STATE OF GEORGIA.

[1.] This Court will not grant a mandamus against a Circuit Judge, commanding him to certify a second bill of exceptions for the same cause, in the same case, the first having been dismissed on the hearing for irregularity.

Application for mandamus against Judge HILL, for refusing to certify second bill of exceptions.

For the facts, see the opinion of the Supreme Court.

K. L. HARALSON and R. S. BURCH, for plaintiff.

No counsel appeared for the State.

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

When this motion was first made we felt considerable embarrassment, on account both of the novelty and magnitude of the question presented for our adjudication. And it is but just to ourselves to say on this occasion, that our successors on this bench will be relieved from many of the difficulties which beset us, as pioneers under the new organization of our judiciary. We are not only forced to decide all questions promptly, and at remote places in the State, where we cannot procure that assistance from books, so essential to the sound and satisfactory administration of justice, but we are often called upon, as in the present case, to pronounce the law upon points that are new to us. It may be that the principles involved may have been well settled elsewhere, but having heretofore no tribunal here, out of which alone such cases could arise, the profession is not prepared by their previous reading for the proper discussion of them.

With what extreme caution, then, does it become us to proceed, with what diligence and care to examine and deliberate, lest we should not only do injustice to the parties before us, but, what is perhaps still more to be deprecated, establish a precedent which we should be compelled to reverse, and thereby diminish the public confidence in the stability of our opinion, or else to adhere to it at the expense of the public justice of the country.

Much, yea every thing, depends on the discreet exercise of the powers of this Court, so far as its permanence, strength, and use

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