25 Ga. 590 | Ga. | 1858
By the Court.
delivering the opinion.
The defendant’s intestate was Marshal of the City of Macon, in the year 1853.
Th : Mayor and Council of the City removed him fio.n office, dtt ^mining, that by gambling within the corporate limits», he had been guilty of mal-practice in office and neglept of duty. The Judge of the Superior. Court, of Bibb couuty, upon? a writ of certiorari,, quashed the proceedings of Council, and his judgment was affirmed by this. Court, 36 Ga. Harvey W„ Shaw, the dismissed Marshal, tire, plaintiff’s intestate, instituted suit for the recovery of hi.s 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 fot 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
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 aud fees, for if he was not entitled to his office, he could not be entitled to salary and perquisites.
Judgment reversed..