13 Ga. 389 | Ga. | 1853
By the Court.
delivering the opinion.
We do not see a hook to hang a reasonable doubt upon about this case.
That was the case of a fi. fa. founded on a general judgment against A. levied upon property in the possession of B. We held the Sheriff a trespasser. We held that it was the perversion of a legal process — that it was the right of the officer to judge of the fact whether property, not in possession of the defendant, was subject to the execution — that he must judge at his peril, and if he did levy, he must justify, and show that the property was the property of the defendant, in order to protect himself against damages. We have no fault to find with that ruling. It is the laAV, as settled for centuries, and which no laAvyer can question, Avithout loss to his professional reputation. But Ave do not see hoAV it is possible for the counsel to entrench himself behind that case. This is a different case. A general judgment binds all the property of the defendant — it is a judgment iri personam. It makes no specification of property. The process founded upon it, directs the officer to make the money out of the goods and chattels, lands and tenements of the defendant. It points out noNproperty, but commands the officer to raise the money out of any that belongs to him. This is no authority to the officer to disturb the peace of the Avorld by levying upon any man’s property. As a rule of right and of policy, therefore, he is limited to property in the possession of the defendant, which is, prima facie, his. He cannot levy upon property in the possession of a third person, because, prima facie, it is not his. If he departs from this rule, and depart he may, it is at his OAvn risk. If he does depart, he may ask for an indemnity, and if he departs upon
' Judgment affirmed.