Coleman v. Neal

8 Ga. 560

Opinion

By the Court

Lumpkin J.

delivering the opinion,

[1.] The objection set up by Coleman, the County Treasurer of Randolph, to the payment of the orders held by Neal, is, that the consideration for which they were given, to wit: the building of a court-house for said county, has entirely failed — the courthouse having fallen down, and become altogether useless.

By reference to the return made by the Inferior Court to the mandamus nisi, obtained against them by Neal, to show cause why these orders should not be issued by them, in compliance with their contract, it will be found that they resisted the fulfilment of their agreement, upon identically the same ground. Having submitted the issue of fact, thus presented to the Court, instead of to a Jury, as it was the right and privilege of the respondents to have done, and the Judge having made the mandamus absolute, and directed these orders to be issued, notwithstanding the defence which was set up, justice requires — the public tranquility demands — that this litigation, having been fairly and finally determined between these parties, should not be renewed, but closed forever.

[2.] Were the Inferior Court, instead of the County Treasurer, the party in this case, we should be forced to decide from this record, that they were bound and estopped by this previous proceeding.

[3.] Their Treasurer, who can only defend under them, or in privity with them, but not against them, as we held he might do, in Johnson vs. The State of Georgia, (1 Kelly, 274,) is equally concluded by the judgment upon the first mandamus ; indeed, it is made his imperative duty, by the Act of 1825, (Prince, 185,) to pay, without delay, all orders passed by the Inferior Court, and directed to him, provided he has funds so to do.

Judgment affirmed.