Duncan v. Webb ( 1849 )

By the Court. —

Lumpkin, J.

delivering the opinion.

[1.] The execution tendered in evidence by the plaintiff, was rejected by the Circuit Judge, on the ground that the return required by the Act of 1823 should be made either by the Sheriff of the County where the defendant resides, or where the judgment was obtained. The language of the Statute is, that the entry shall be made by “ the proper officer for executing and returning the same.” Prince, 458. It is clear that the Act itself contains no such restriction. The fieri facias is directed “ to all and singular, the Sheriffs of the State.” It would seem, therefore, that it was competent for the Sheriff of any County in Georgia to make the return required by the Act to keep the execution alive.

[2.] If the officer makes a false or fraudulent return, he is liable to answer in damages to any person who -may be injured by his misconduct.

Upon this ground the judgment below must be reversed.