Davis v. Irwin , 8 Ga. 153 ( 1850 )

By the Court,

Warner, J.

delivering the opinion,

[1.] It appears, from the record, that the plaintiff in error sold certain negroes, as Sheriff of Bibb County, belonging to the defendant, by virtue of certain Ji. fas. placed in his hands against her. After paying off the fi. fas. and costs, there remained a balance in the hands of the Sheriff, arising from the sale of the defendant’s property. A rule nisi was taken against the Sheriff at the instance of the defendant, calling upon him to shew cause why he should not pay over to her the money remaining in his hands, arising from the sale of her property, after paying off the executions, &c. The Sheriff shewed for cause, that at the lime of the sale, one Collins acted as th‘e agent of defendant; that a slave, by the name of Polly, was bid off by A. H. Chappell, and was delivered to him by the Sheriff in the presence of defendant’s agent; that Chappell directed the slave so purchased by him, to procure a dray, and take her things to Dr. Lamar’s residence, and that he would send for her next morning — at the same time, Chappell informed the Sheriff that he would leave a check for the purchase money of said slave with N. C. Munroe, at the Agency of the Mechanics’ Bank at Macon — requesting the Sheriff to call the next morning and get it; that when the Sheriff called for the check the next, morning, Munroe refused it, under Chappell’s instructions, upon the ground that saidnegro ran away, or was carried off, during ihe previous night. For the Sheriff’, it is insisted, that he is not liable to be ruled for the money in his hands, at the instance of the defendant in execution, and that if he is subject to be ruled at her instance, that her agent being present, and cognizant of all the foregoing circumstances, her assent thereto will be presumed, and constitute a good defence for the Sheriff, against the rule. The fact that the defendant’s agent was present at the time the arrangement was made between the Sheriff and the purchaser of the slave, for the payment of the purchase money, is no defence for the Sheriff. Had the defendant herself been present, she would have had no right to interpose any objections to any stipulation or agreement that the Sheriff and the purchaser of the slave might think proper to have made, as to the payment of the purchase money, or as to the delivery of the slave. The title of the defendant was divested by the Sheriff’s sale, and she or her agent had nothing more to do with the property. If the Sheriff thought proper to deliver the property to the purchaser, without payment of the purchasefmoney, he did so upon his own responsibility; that was a matter between himself and the purchaser, with which the defendant in execution had no concern. The Sheriff was responsible to the persons interested, for the proceeds of the sale; and the 49th and 52d sections of the Judiciary Act of 1799, are sufficiently broad, as regards the liability of Sheriffs in this State, to authorize the Court to entertain a rule for money raised by virtue of a sale under executions,, at the instance of a defendant in such executions. Prince, 431, ’2.

[2.] The Court below made the rule absolute against the Sheriff, for the payment of the money within sixty days, and in default of such payment, ordered an attachment instantly to issue against him, and that he be committed, without bail or mainprize, until the payment thereof. The error alleged to the judgment of the Court below is, that after the rule was made absolute against the Sheriff, for the payment of the money, an attachment was ordered to issue against him, without first calling on the Sheriff to shew cause why the attachment should not issue against him. This objection, we think, was well taken. After the rule was made absolute, and the Sheriff ordered to pay over the money, the stringent process of attachment ought not to issue against him until he has first been heard, or at least, had an opportunity of Being heard; for the reason, he may have good cause to shew why he should not be attached and imprisoned. This appears to have been the practice in England ; and we think it is the most reasonable and better practice. See Richmond vs. Bowditch, 1 Meeson & Welshy’s Rep. 38.

On the last ground taken, the judgment of the Court below must be reversed'.