11 Ga. 331 | Ga. | 1852
By the Court.
delivering the opinion.
Upon this principle, it was legally proper for them to move against the Sheriff for this fund — nay, it was their duty to do so. No matter how the fund came into his hands — if it was a County fund, it was their duty to collect it; not as a Court, but as the agents of the law, charged with the general supervision and control of the property and money of the County. The Clerk, in issuing the process, acted ministerially. He has no authority to issue the process, without an order from the Justices. It was that order that gave vitality to the process. The Justices alone could order the sale, and upon that order, without a process, I have no doubt the Sheriff could have sold the slave. Electing, as they may do, to issue a process, they used, as they may do, their Clerk for the purpose. The fact that the money is by law payable to him, gives him no power over it — he is
The next exception is, that the Justices of the Inferior Court could not try the issue on the traverse of the Sheriff’s return, because, being parties to the proceeding against the Sheriff, they were sitting as judges in their own case. They were parties, as public agents, and not in their own right as citizens. It was not their case, but that of the County. They had no interest in the cause, different from, or greater than that of any other citizen. They occupied the position of naked trustees. The money, when paid over, would not go into their hands, but into the hands of the legally authorized depository of the County. By law, they have jurisdiction both of the subject matter and of the Sheriff. The whole of this record shows, that the proceeding was instituted to compel the payment of a public fund in the hands of the Sheriff; it shows how it was raised, and the final judgment passes it from the Sheriff to the custody of the law, and I do not entertain a doubt but that that judgment will be a complete bar to any subsequent proceeding instituted by the Clerk, or any other person, for the same money. We are satisfied that this exception was not well taken. See the case of The Governor, &c. vs. Richard Basset and his sureties, determined at Macon, in February, 1852. Ante. 207.
Was then, Judge Johnson right in holding, that beside the illegal evidence, there was, plainly and incontrovertibly, testimony sufficient to warrant the verdict ?
Upon the trial of the traverse, the process was in evidence, with the Sheriff’s return thereon of the sale — of the disbursement for jail-fees and other expenses, and exhibiting a balance of upwards of two hundred dollars. His return to the rule acknowledged the sale — set forth the amount — the amount of payment on account of jail-fees and other expenses, and presented a balance of some fl 98.42, which balance the return states, was paid to A. B. Raiford, the Clerk and Treasurer. It was also proven that the books of the Clerk and Treasurer showed no payment of this fund to him. There was no evidence for the Sheriff, except, that one witness testified, that he heard the Clerk ask the Sheriff for a settlement of this money, and that afterwards he, heard the Clerk say that he had a settlement with the Sheriff, but whether the settlement spoken of was of this particular fund, the witness stated he did not know. Now, it is clear that the return on the process, and the admissions in the return to the rule, prove the balance in the hands of the officer for which the verdict was rendered.. Upon this proof he is necessarily liable, unless he discharges himself by showing that he has paid it over, according to his response — or by proof of something else which is in law a discharge.
Let -the judgment be affirmed.