17 Ga. 624 | Ga. | 1855
By the Court.
delivering the opinion.
The ofiicial attestation of the papers, is prima facie proof of their genuineness, atid easts the burthen upon the party denying it.
We see no necessary repugnance between the oath ' and the proof. It is true, that where a declaration charges a joint in- • debtedness to maintain the action, it must be proved as laid. And so, e converso, if the declaration charges individual indebtedness against the defendant, the evidence should correspond. (2 T. R. 478. 1 Chitty’s Pl. 31. 1 East. 52.)
Where one of the joint debtors is dead, however, or a certif
Here it appears, from the testimony, that both of the Whites resided out of the State. One of them sent property into the State, which was attached. Why not treat the other as actually or civilly dead ? In other words, not notice him at all in the proceeding ?
Besides, the alleged defect here is in the oath, which is never supposed to set forth the contract upon which the indebtedness is founded. That is left for the declaration, to be subsequently filed in the case.
Either this is a sound view of the subject, or else, there is a casus omissus in our Law of Attachments. An attachment would never lie against one of two joint debtors, provided the ordinary process of law could be served on the other. No such defect, we apprehend, exists in the law. If it does, the sooner it is remedied the better.
The proof in this case is stronger even than the foregoing ■rule. It goes to the conduct rather than to the sayings of the Constable. He pointed to the property while in his custody, as that upon which he had just levied the attachment.
Under the stringent rule laid down by this Court, in Crawford, Governor, &c. vs. Word, Wofford and others, (7 Ga. R. 445,) the Circuit Judge was right, perhaps, in repelling the proof to this point. But the doctrine in that case has been modified; and under our present view of the law, as announced during this term in Taylor vs. The Governor, &c. we held that an officer who is sued for not selling property levied on by attachment, may prove a paramount title in another in his defence. Under an execution or attachment against A, it would' be trespass in the officer to seize the property of B.
The Act of 1818 provides, that “ each and every Constable-shall give bond with two or more securities, to be judged of by the Justices of the Peace in their respective districts, in the sum of §500, (unless said district be in a town — and in that case, §1.000) for the faithful performance of the duties of their office as Constable.” (Cobb's Dig. 206.)
Cities and towns in this State, as well as Militia Districts, are all created by law. And it is by no means certain but that the Courts are bound to know whether a particular district for which the Constable is qualified, be or be not within a town or city. But we are clear, that the rule of criminal pleading, that where an offence is created by Statute and an exception is made, not by another Statute nor by another and substantive clause of the same Statute, but in the enacting clause, that it is for the indictment to charge and the proof to
. The Circuit Judge was right, in our opinion, in holding that it was incumbent on the defendants to prove the negative, namely: that Weems was not a Constable in a town or city at the time of executing the bond.
In this case, the Jury were told, in substance, that the presumption was against, instead of being in favor of the party charged with official neglect of duty; and it does not appear,, from the proof, but that the attachment papers may have been taken from the Clerk’s office, the proper place for returning, such process.
Here, again, the Judge was governed by the decision of this Court in the Governor, &c. vs. Wood et al. already referred to. And if there be error in this charge, and we hold there is, the fault lies at our door — my door — and our brother is blameless. The measure of damages is the injury sustained, whatever that be.