#### J. M'Kee *v.*The Town-Council of Anderson.

By the act of incorporation of Anderson, power is given “ to the Town-Council to impose fines for the violation of their Ordinances, and, if for less than # 20, to try the offender.” The plaintiff was alleged to have committed a breach of an ordinance, by exhibiting certain *shows.*For this, he was summoned before the council and fined. He paid the fines, and brought an action, before a magistrate, to recover them back. Held, that if the “ Council” had not jurisdiction of the subject, the plaintiff’s remedy was *bj prohibition;*and, that after paying the fines imposed, an action to recover the money back would not he ; and, that if they had jurisdiction of the subject, their judgment was Anal.

The judgment of a court of competent jurisdiction, on a matter within its cognizance, is conclusive.

*Before GANNT, J., at Anderson, Fall Term,*1838.

This case comes up on an appeal from a magistrate’s decision, being a suit instituted for money had and received, for so much *25money, which plaintiff alleged had been improperly collected from him, under the act of the legislature of 1836, imposing a tax on shows. The only question raised was, whether the plaintiff was subject to the tax, the magistrate having so decided, although the defendant had also objected, before the magistrate, to his jurisdiction of this case. The only evidence before the magistrate was the handbill of the plaintiff, which accompanied his report; in compliance with which notice, it was admitted, there had been three several exhibitions on three several days — on which an execution had issued for fifteen dollars, and which was paid, with costs, to the sheriff, by the plaintiff. The presiding judge was of opinion that the plaintiff was not liable to pay the tax, and that the suit was well brought, and therefore reversed the decision, and gave judgment for the sum sued for.

The defendants now moved the Court of Appeals to review the decision of the presiding judge, on the following grounds: 1. Because, the plaintiff was, by his own showing, subject to the tax imposed for “ shows of any kind,” this being “ a Grand Exhibition of the improved Magic Lantern.” 2. Because, his handbill shows his pretended ‘ lectures ’ was a mere evasion of the law, accompanied, as they were, with “ Magical Views ” of various portraits, exhibiting persons and costumes in no way illustrative of his subject. 3. Because, he who exhibits the ourang-outang, monkey, great ant-eater, and such animals, for gain and reward, whether in life, painting, or magical illusion, is a showman, and subject to the tax. 4. Because, to have sustained his action, the character of the lectures and of the lecturer should have been shown, by satisfactory proof, as placing him without the purview of the law. 5. Because, the order of the court, if the magistrate was in error, should have been a new trial. 6. Because, the defendants were not liable, in this form of action, and before a magistrate.

Curia., per Earle, J.

The act of incorporation gives authority to the Town-Council of Anderson, to impose certain fines for the violation of their ordinances, and, if less than $ 20, to try the offender. The plaintiff, it was alleged, committed a breach of an ordinance by exhibiting certain shows. For this, he was summon*26ed before the council, and fined. He paid the fines, being $ 5 for each exhibition, amounting to the sum of $ 15, and brought this action to recover it back.

Whitner, for the motion.

If the council had jurisdiction of the subject, their judgment is final. If they had not, the plaintiff’s remedy was by prohibition. If he was not subject to their cognizance, he could have prevented the collection of the money. After having paid it, we do not perceive how he can be allowed to recover it back, without a departure from well settled principles. The judgment of a court of competent jurisdiction, on a matter within its cognizance, is conclusive. If the charter gives an appeal from the decision of the council, the plaintiff should have appealed. If it does not, I cannot perceive how the justice or this court could aid him. He does not come within the cases on the subject of money paid under color of legal proceedings, or void process, or extorted, or obtained by oppression.

If we consider the question of his liability, as we should on an appeal, it is equally clear that he was properly fined, for exhibiting figures and shows, in violation of the ordinance. It is only necessary to read his advertisement: — “Splendid Magical Views of the Ptolemaic System, and other Systems of Astronomy; Splendid Views of all the *Kings*and Queens of England ; Splendid Portraits, showing the Modern Costume of various Nations; Splendid Views of Beasts, Birds and Fishes!” This seems to include every portion of Nature, whether in Heaven, or on Earth, or in the waters of the Sea, and must come up to any definition of figures and shows. The council was not in error, nor was the justice; and his judgment is affirmed.

Richardson, Butler and Evans, Justices, concurred.