The Mayor v. Hays
| Decision Date | 30 June 1858 |
| Citation | 25 Ga. 590 |
| Parties | The Mayor and Council of the City of Macon, plaintiff in error. vs. Samuel Hays, adm'r, &c., of Harvey W. Shaw, defendant in error. |
| Court | Georgia Supreme Court |
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 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-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 hill of exceptions.
Poe & Grier, for plaintiff in error.
Lanier & Anderson; and Stubbs & Hill, 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.
The Mayor and Council of the city removed him from office, determining, that by gambling within the corporate limits, he had been guilty of malpractice 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...
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