54 Ga. 507 | Ga. | 1875
Money in court was raised by sale of property under the older of two judgments. Plaintiff in the younger, in order to take the money, attacked the older as paid off. This was the issue tried by the jury. Fi. fa. on the older judgment was issued in 1861. The execution docket, for some reason, was not introduced, but the person who was then clerk testified, without objection, that the records and dockets showed that the fi.fa. was issued and handed to the sheriff. Nothing more appears in reference to the custody of the fi. fa. until some time in 1863, when the plaintiff paid cost upon it to the sheriff. Whether he received the fi. fa. from the sheriff at that time, or whether he already had it in hand, he could not state, and there was no other evidence as to the date of its reception by him. The same persons were sheriff and deputy sheriff from a time prior to the issuing of the fi'. fa. until after it came to the plaintiff's hands. There is evidence tending to show that in 1862 the clerk was called upon to make a calculation upon all judgments against the defendant which were then liens upon his property; that he did so, and in his presence the defendant paid to the sheriff and deputy sheriff,
Judgment reversed.