27 Ga. 299 | Ga. | 1859
By the Court.
delivering the opinion.
Was the charge right? That depends on, whether tresjoass was the remedy.
If the constable, in levying on the negroes, acted without authority, trespass was the remedy j if he acted merely in excess of his authority, the remedy was case. It is agreed, I believe, that this is the somewhat nice distinction. Conceding, that such a distinction exists, the question is, whether the constable acted without authority ? And, we think, that he did. At the time when he seized the negroes, he had already seized two mules, some cattle, a rockaway, and a wagon; and these articles were of sufficient value, to satisfy they?, fas. The Act of 1811, [Pr. Dig. 506,) declares, that, “No constable shall be authorized to levy on any negro, or negroes, or real estate, unless there is no other personal estate to be found, sufficient to satisfy the debt.”
That being so, trespass was the remedy.
This ground in the motion, we think, then, was valid, and therefore, we think, that there ought to be a new trial.
As to the remaining ground, it is one that need not be considered.
Judgment reversed.