6 Ga. 410 | Ga. | 1849
By the Court.
delivering the opinion.
Our Statutes have given to persons, not parties to executions, remedies unknown to the Common Law, when they are levied upon property to which such persons have claim. They are found in our Claim Laws. The remedy provided in Georgia, by the interposition of a claim, is known to but few of our sister States. Statutes similar to ours obtain in Alabama. If the remedy by claim be considered as a substitute for the action of trespass as at Common Law, and be considered farther as controlled by the decisions in Great Britain upon that action, why then, the judgment ought to have been produced. The claimant, by our Statute, must be a person not a party to the execution. A Sheriff in England being sued by such a person, we have seen, could justi
One of the provisos to the Claim Law, is as follows: “ Provided, also, that the burden of proof shall he upon the plaintiff in execution, in cases where the property levied on is, at the time of such levy, not in possession of the defendant in execution.” Prince, 448. Upon the trial of the issue, made as I have stated, between the plaintiff in execution and the claimant, it is obvious, from the whole Act, and particularly from this proviso, that the Legislature intended that the plaintiff in execution should, in the first instance, be held to make out a prima facie case only. The levy must precede the interposition of the claim. At the time of the levy, it is not to be inferred that there will be a claim. The law contemplates — the whole machinery of the Claim Laws contemplates — in advance of any issue, a plaintiff with a process regularly obtained. For without such a process — certainly without a process — there can he no such thing as a claim at Sheriff’s sale. The levy being made and a claim put in, and the issue joined, if it is apparent from the Sheriff’s entries, or by proof, that the property was in the possession of the defendant, at the time of the levy, the plaintiff need proceed no farther — he may rest his case, and the claimant must show his title. The onus is cast. Possession in the defendant to an execution, levied hy the Sheriff, raises the presumption that the property is liable.
The proviso contains a negative pregnant. It declares that, in cases where the property is not in the possession of the defendant, the burden of proof shall he on the plaintiff. The affirmative with which this negative is pregnant is, that if the defendant is in possession, the burden of proof shall not he upon the plaintiff — that is, the possession in that case shall he sufficient to cast the burden on the claimant. Now, in all such cases, the plaintiff
In Alabama, where there are Claim Laws similar to our own, this question has been so determined. Carlton et al. vs. King, 1 S & Port. 472. See, also, Hooper vs. Pair, 3 Porter, 401.
Eet the judgment bo affirmed..