Jaffray & Co. vs. Purtell. what laws are promotive of the public morality, or otherwise, and so long as those laws are not "plainly and palpably" violative of the constitution, the courts must recognize and uphold them. Such abuses must be corrected by an appeal to the people at the ballot-boxcourts have nothing to do with the wisdom, policy or expediency of a law. These are matters purely of legislative deliberation and cognizance. Let the judgment of the court below be affirmed. 66 226 123 209 JAFFRAY & COMPANY vs. PURTELL. A declaration in attachment was filed after the first term and notice given to the defendant. At the next term the attachment was dismissed, but without prejudice to the proceeding on the declaration. On the same day a general judgment was entered against the detendant by default, a fi. fa. issued and was levied: Held, that a judgment could not be taken at that term; one so taken was a nullity, and the levy thereunder was properly dismissed. Attachment. Judgments. Before Judge HILLYER. Fulton Superior Court. September Term, 1879. Reported in the decision. ARNOLD & ARNOLD; HOKE SMITH, for plaintiffs in error. W. I. HEYWARD, for defendant. CRAWFORD, Justice. The record in this case shows that the plaintiffs in error had sued out an attachment against Purtell & Carroll, which had gone into execution, and been levied upon certain land, which was claimed by Mrs. Purtell. When this claim case came on to be tried, after the plaintiffs in fi. fa. had introduced their testimony and closed, the claimant Jaffray & Co. vs Purtell. showed by the record in the attachment case, that the same had been issued and made returnable to the April term, 1876 of Fulton superior court; that on the twelfth day of September following, a declaration in attachment. was filed; on the 16th of the same month notice was served on the defendants, and that at the said September term of the said court the attachment was dismissed, and on the same day a general judgment was taken against the defendants by default. Upon this testimony, the counsel on both sides submitting its legal effect to the judge, he dismissed the levy, and that ruling is assigned as error. The question made, therefore, is whether the judgment taken under the facts stated was a nullity. The law requires the declaration in cases of attachment to be filed at the first term, and when so filed, all subsequent proceedings are the same as in cases where there is personal service. When notice in writing is given personally to the defendant ten days before final judgment on said attachment, the same shall have the force and effect of judgments rendered at common law. The failure of the plaintiffs to file a declaration at the first term caused the dismissal of the attachment, leaving the declaration unaffected thereby, and with personal service on the defendants, but not with such standing in court as to authorize a judgment at that term. The law which allows a general judgment, where the ten days notice is given, pre-supposes the legal steps to have been taken, and that the declaration was filed at the first term. Judgment affirmed. Hitch vs. Lambright, Justice of the Peace. HITCH US. LAMBRIGHT, Justice of the Peace. 1. If a note be placed in the hands of a justice for suit and collection, it would be error to dismiss the action merely because the plaintiff did not appear. With the note in his possession, he should proceed to trial and produce the same as evidence, subject to such defenses as defendant might present. 2. Where the magistrate erroneously dismisses the action for the nonappearance of the plaintiff, whether he would be liable to rule would depend upon the good faith with which he acted. He would not be subject to rule for an error in judgment, but only for malfeasance. Rule. Justice of the Peace. Judge. Officer. Before Judge MERSHON. Glynn Superior Court. May Term, 1880. Reported iu the opinion. S. W. HITCH, by Z. D. HARRISON, for plaintiff in error. GOODYEAR & HARRIS; MABRY & CROVATT; SYMMES & ATKINSON, for defendant. SPEER, Justice. Hitch brought his rule in Glynn superior court, against defendant as a justice of the peace, alleging that on the 10th day of May, 1879, he placed in the hands of defendant, as a justice of the peace, a note for suit and collection, on which there was a balance of $49.00 due; that the maker was solvent, and that defendant in error had failed and refused to collect said note. He prayed for an order requiring defendant in error to pay to him the amount of the unpaid balance. Defendant answered the rule, admitting the allegations therein, and saying, that as soon as said note was placed in his hands, it was sued to the next succeeding term of Hitch vs. Lambright, Justice of the Peace. the court in which respondent presided; that when the trial came on said case was sounded on the docket-there was no response for plaintiff, whereupon counsel for defendant moved to dismiss the case for want of prosecution at the cost of plaintiff, which motion was granted; that he received said note for the purpose of suing the same, and not as a collector or agent. Plaintiff then introduced a receipt signed by defendant given for the note, as a justice of the peace, for suit and collection, and closed upon the rule, answer and evidence submitted; the court discharged the rule, and plaintiff excepted. It is the duty of magistrates to receive for suit and collection all notes and accounts within their districts when tendered, and to give receipts for the same. Code, $4147. It is also made their duty to have parties' served by summons, and to proceed to the trial of such causes at the proper term of the court. If a note thus placed in the hands of the magistrate is sued and the defendant appears, we think it would be error in the magistrate to dismiss such suit merely because the plaintiff did not appear, with the evidence of indebtedness under his control and in his possession. He should proceed to the trial of said cause, and produce the same as evidence, subject to such defenses as the defendant might present against the recovery of a judgment thereon. We, therefore, are of opinion the court erred in discharging the rule upon the evidence submitted. Whether the defendant in this case would be liable to judg ment on this rule would depend upon the fact whether he was acting bona fide as a magistrate in dismissing said cause or whether he was acting in collusion with defendant, or his counsel. In the former case it would be an error of judgment, acting judicially, for which he is excusable; in the latter, it would be such malfeasance of duty as would render him liable for the debt. Let the judgment of the court below be reversed, Taylor, executrix, et al. vs. Meador. TAYLOR, executrix, et al. vs. MEADOR. Where a testator bequeathed to his wife all of his estate until January 1st, 1880, at which time she was to distribute and pay to each child then living, or their heirs, $7,000.00, any previous payment being deducted, and directed that if any of the children should die without leaving any heirs, their share should be divided among the surviving children, it was clearly the intention of the testator to give to each of his children $7,000.00 contingent upon their living to January 1st, 1880, when such distribution and payment were to be made, that those who lived and received the legacies should have them absolutely, and that if any did not live to that time and left heirs (probably meaning children), those heirs were to take, but if no heir were left, then the surviving brothers and sisters were to take. Wills. Legacy. Before Judge HILLYER. County. At Chambers. September 4th, 1880. Reported in the decision. HOPKINS & GLENN, for plaintiffs in error. HENRY HILLYER, for defendant. SPEER, Justice. Fulton Florinda W. Taylor, as executrix of R. G. Taylor, Katie G. Phelps, formerly Taylor, Georgia W. Williams, formerly Taylor, and T. W. Taylor, allege that the testator, R. G. Taylor, was the husband of the executrix and father of the other complainants. That testator died the 9th of October, 1874, leaving a last will. That one of complainants, to-wit: Florinda W. Taylor, qualified as executrix. That the daughter named in the will, Florinda Taylor, was born the 7th of May, 1860, intermarried Ist of October, 1879, with defendant Charles D. Meador, and on the 17th of July, 1830, died without issue. That about the first day of January, 1880, the seven thousand dollars mentioned in the third item of the will was deliv |