77 Ga. 163 | Ga. | 1887
The affidavit of illegality filed by the county treasurer to this execution raises no issue as to the authority of the ordinary to issue the same, or as to his failure to observe any condition required by law, as to notice or settlement, previous to taking action thereon; and although these questions were discussed at the bar, we decline to express an ■ opinion upon them. If the execution issued, or was proceeding illegally upon any of these grounds, they should have been set up and insisted on in the affidavit, so that the opposite party might have been notified of the objections to this demand he was expected to meet.
(1.) The record puts in issue the fact that the county treasurer is in default, and insists that he has accounted for and paid over all funds received by him. ■
(2.) It denies indebtedness to the county, or that he has in hand any of its funds.
(3.) That the amount charged against him never came to his hands, and resulted solely from an erroneous calculation made by the ordinary; orders which he had paid off for large amounts, being absent when the calculation was made, having been placed in the hands of the grand jury, while investigating his accounts, and never returned by them to him.
(4. j And lastly, an offer to tender and set off against the county an order for $800 which he held, and which the county had refused to pay.
The jury, under the evidence and charge of the court, found all these issues against the affiant, and returned as due the county $1,723r2uu principal, with interest at 7 per cent, from the date of the execution.
A motion was made foi a new trial on various grounds,
Had the affiant observed these requirements, there would have been no necessity to resort to such testimony as that offered and rejected ; that they were not observed was attributable to his own negligence, of which he should not be permitted to take advantage, and thereby, to substitute evidence of a lower character for the record it was incumbent upon him to make out and deposit; that this cannot be done generally, or without some unavoidable casualty, is scarcely debatable. Nothing was shown to take this case out of the rule excluding such testimony, and we see no error in rejecting it.
Judgment affirmed.