2 Ga. 53 | Ga. | 1847
By the Court.
delivering the opinion.
The plaintiff in error, filed his bill in Decatur County, setting forth the following facts. . That on the 18th day of May, 1841, four small Ji.fas. were issued from the Justice’s Court of the 513th District, G, M. by Daniel M. Whaley, then the acting Magistrate
The defendants, in their answer, denied every fact and circumstance which entitled the complainant to the aid of a Court of
It appears from the record sent up, that Arnett made first an affidavit of illegality to the executions, on the ground of payment; and that the judgments, both of the Justice’s Court and of the Superior Court, upon certiorari, were against him.
An order was taken at Chambers in July, 1846, calling upon the complainant to show cause on a given day therein stated, why the injunction should not be dissolved, on the ground that the equity contained in the bill was denied and fully sworn off; and upon the hearing, the rule was made absolute, and leave given at the same time to the complainant to amend his bill.
Had the transcript of the record and the bill of exceptions
And in the judgment of this Court that is a sound position. In Reed against Pruyn and Staats, 7 John. R. 427, the Supreme Court of the State of New-York, held, that a Sheriff cannot, with his own money, pay the plaintiff an execution and afterwards levy
The Chief Justice cites the case of Waller vs. Weedale, Noy. 107, where it was laid down by the Chief Baron, that the Sheriff on fi. fa. cannot detain the goods taken, upon an execution in his own hands, and satisfy the debt of his own proper money, “ a grand inconvenience might ensue if the Sheriff himself might detain them;” and adds, that this ancient case received strength and credit in Langdon vs. Wallis, (1 Lutw. 589,) when it was cited as good law by such counsel as Sergeants Wright and Luiwyche. In this last case, it was observed, that the law requires of Sheriffs a strict execution and observance of writs, as their authority was to sell the goods, and this doctrine appeared to be approved by the decision of the Court.
The payment then, of the two executions to Williams the judgv ment creditor, by Whaley the Magistrate, (constituted by law, pro hoc vice a collecting officer,) not being a conditional, but an absolute discharge; was a satisfaction of the debts, and therefore, the executions were spent and could not be used for the benefit or reimbursement of the officer. See also Millard vs. Canfield, 5 Wend. R. 61; Jackson vs. Anderson, 4 Ib. 474; Swan vs. Saddlemire, 8 Ib. 676; Armstrong vs. Garrow, 6 Cowen R. 465.
All we can do then is to remand the case, with this distinct declaration of opinion upon the matter of law, contained in the bill of exceptions.