The Mayor, &c. Savannah vs. Hartridge.

levy a tax for the purpose of establishing a regular watch in the City" of Savannah; and the Act of 1825 was to raise money for the use of the City, "in all matters of internal police, and general safety, as respects health, fires, City guard, salaries of of ficers, and any other exigencies usual to incorporated Cities."

Now, it is disclosed to this Court, in the record before us, that one of the main purposes of this income tax, was to meet the heavy liabilities of the City, on account of its subscription to the stock of the Central Rail Road. This is distinctly set forth in the ordinance of January, 1842, of which the ordinance of Novernber of the same year, and a portion of which is transcribed in the bill of exceptions, is amendatory. The presiding Judge certifies that he pronounced his judgment in view of all the tax ordinances passed by the corporation. Concede, then, that the power had been given to the Mayor and Aldermen to impose an income tax for any or all of the various objects enumerated in the Acts of 1787, 1805 and 1825. Admitting, in other words, that the power was delegated over the subject matter of this tax, still it would not be allowable to tax income, to meet the liability of the City for its subscription to the stock of the Central Rail Road; there being neither a specific nor general grant, in any of these Acts, to that effect.

In 1838, however, the Legislature conferred on the corporation, authority to obtain money on loan, "on the faith and credit of the City, for the purpose of contributing to works of internal improvement." What does this grant imply? Not only the right to pledge the property of the City, but to resort to all the legitimate means of taxation bestowed by their charter, to maintain and redeem this "faith and credit." Still, the right to tax income, even for this purpose, has not, as we have attempted to show, been delegated, however necessary and proper it may appear to be to the City Authorities, to meet their engagements.

[9.] I have not deemed it necessary to consider the Act of the present session of the General Assembly, (1849,) explanatory of their previous legislation upon this subject, and which has been read, though not seriously relied on, by counsel in their argument for the plaintiffs in error. For, while we are among the last persons who would be inclined to impair the legislative power of the State, one of the most useful, as well as honorable, in all Governments, and would be among the foremost to support and

Curry and others vs. Piles.

construe favorably all its Acts not prohibited by paramount authority, yet law, from its very nature, must be confined to subsequent occurrences-a rule for future cases. It cannot look back, therefore, upon interests already settled, or events which have already transpired. By Mr. Justice Woodbury, in Merrill vs. Sherburne, 1 New Hamp. R. 199. See also, 7 Johns. R. 495. 1 Bay, 107. Bacon. Statute, 6. 7 Mass. R. 385. In this State, as well as in all republics, it is not the Legislature, however transcendant its powers, who are supreme-but the people-and to suppose that they may violate the fundamental law, is, as has been most eloquently expressed, "to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of delegated power may do, not only what their powers do not authorize, but what they forbid." The law is made by the Legislature, but applied by the Courts. The law prescribes a new rule for new controversies, but never interferes with the past or the present, because no rule of conduct can, with consistency, operate upon what occurred before the rule itself was promulgated. 16.

Let the judgment below stand affirmed.

No. 4.-MOSES CURRY and others, plaintiffs in error, vs. ROBERT S. PILES, defendant in error.

[1.] The decrees or judgments of a Court of Equity are embraced within the Dormant Judgment Act of 1823.

Motion, in Glynn Superior Court. Decided by Judge FLEMING, April Term, 1849.

This was a motion to sue out a fi. fa. under the 13th Equity Rule of the Superior Courts, nunc pro tunc, on a decree rendered 4th December, 1838. The motion was resisted on the ground,

Curry and others vs. Piles.

that the decree was for a specific sum of money, and was dor mant under the Act of 1823. The Court refused the motion, and error is assigned thereon.

W. & W. F. Law, for plaintiffs in error.

BARTOW & DELYON, for defendant,

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

[1] The only question presented by the record in this case is, Whether a decree of a Court of Equity for a specific sum of mo ney is embraced within the Dormant Judgment Act of 1823.

The argument for the plaintiffs in error is, that only Common Law judgments, founded on the verdict of a Jury, as specified in the Judiciary Act of 1799, are embraced within the true intent and meaning of the Act of 1823.

The Act of 1823 is an Act to amend the 3d section of an Act, passed 19th December, 1822, entitled an Act to amend the 26th section of the Judiciary Act, passed the 16th day of December, 1799; and, also, to prevent a fraudulent enforcement of dormant judgments. A decree is the judgment or sentence of a Court of Equity. Bouvier's Law Dictionary, 428. 2 Maddock's Ch. Pr.

464.

The Act of 1823 declares, that " All judgments that have been obtained since the 19th day of December, 1822, and all judgments that may be hereafter rendered, in any of the Courts in this State, on which no execution shall be sued out, &c. within seven years from the date of the judgment, shall be void and of no effect." Prince, 458. The Act not only purports to be an Act to amend the 26th section of the Judiciary Act of 1799, but also to prevent a fraudulent enforcement of dormant judgments. Besides, the words of the Act are very broad and comprehensive, embracing all judgments rendered in any of the Courts of this State. According to our practice, the decree is rendered by the verdict of a Jury, and is nothing but the judgment or sentence of the Court, and we are not aware of any Statute that gives to the decree or judgment of a Court of Equity, in this State, a lien on the property of the defendant, but the Act of 1799. Judgments rendered by Justices' Courts, are not generally founded on the verVOL. VIII 5

Williams vs. McIntyre.

dict of a Jury, yet such judgments have always been held to be embraced within the Dormant Judgment Act.

a

We think the decree mentioned in the record, being for a spe cific sum of money, is, in contemplation of the Act of 1823, judgment, and is not only embraced within the words of that Act, but is also within the mischief which that Act intended to remedy. Let the judgment of the Court below be affirmed.

No. 5. MARGARET WILLIAMS, plaintiff in error, vs. ROBERT MCINTYRE, adm'r, &c. of John Wagner, deceased.

[1.] A testator bequeathed as follows: "I farther will that one hundred dollars per annum be paid out of the profits of said bakery to B, Moore, of the City of New York, for the use of my mother, Mrs. Elizabeth Wagner; and, also, the like sum of one hundred dollars, out of said profits, to my sister, Mrs. Margaret Williams, together with eighty dollars, lent by her to me in New York, with interest from date:" Held, that the bequest to Mrs. Williams gives her a specific sum of one hundred dollars, and not an annuity of one hundred dollars.

[2.] The Judge of the Superior Court in Georgia, sitting as a Chancellor, has the power, exclusively, to administer the Law. It is the province of the Jury to find the facts, and render a decree upon the trial on the merits, and in that point of view only, may they be considered in the light of Chancellors.

In Equity, in Chatham Superior Court. Decision on demurrer, by Judge FLEMING, at Chambers, July, 1849.

The bill of Margaret Williams alleged, that in 1841, John Wagner made his last will and testament, which, among other things, contained the following item:

"Item 1st. It is my will and desire, that my beloved wife and son, my sister, Mrs. Margaret Williams, and her daughter, Mary Williams, should reside in the dwelling in which I now reside, at the corner of Broughton and Jefferson-strs, in the City of Savannah, and keep up the baking business as long as it can be

Williams vs. McIntyre.

made profitable, so as to pay the five per cent. discount on Aaron Sibley's notes, in the Banks of Savannah, drawn by me and indorsed by Sibley. I farther will, that one hundred dollars per annum be paid out of the profits of said bakery to B. Moore, of the City of New York, for the use of my mother, Mrs. Elizabeth Wagner, and also, the like sum of one hundred dollars, out of said profits, to my sister, Mrs. Margaret Williams, together with eighty dollars, lent by her to me in New York, with interest from date; and in case my wife and sister should disagree and wish to live separate, then, in such case, I give and bequeath to my said sister, Margaret Williams, Garden Lot No. 4, on the White Bluff road, together with all the stock and improvements thereon, to her and to her heirs and assigns, forever."

The bill farther alleged, that after the death of Wagner, the executor, Felt, paid over to her annually, one hundred dollars, as bequeathed in the will; that in 1847, Felt procured himself to be dismissed from the office of executor, and letters of administration, with the will annexed, were granted Robert McIntyre, who married the widow of Wagner. The bill alleged that the baking business was continued, and the profits were ample to pay complainant her annuity, but that the administrator had refused to do so; denying that the will gave her an annuity, but simply a legacy. The prayer of the bill was for an account, &c.

A demurrer was filed to this bill, for want of Equity, and after argument had thereon, the Court sustained the demurrer and dismissed the bill.

To this decision complainant excepted, and alleged error on several grounds, which reduce themselves to two

1st. That the Court erred in its construction of the will of John Wagner, in holding that the same bequeathed to complainant a legacy and not an annuity.

2d. That the Court erred in dismissing the bill, and in deciding that, upon the hearing, the complainant would not be allowed to introduce any testimony, but the will itself; the complainant contending, that testimony was admissible for certain purposes, and, moreover, that under our system of jurisprudence, the law and facts were properly to be adjudicated by the Court and Jury, and not by the Judge alone.

BARTOW and WILLIAMS, for plaintiff in error.