Keaton v. Governor ex rel. Stoddard , 17 Ga. 228 ( 1855 )

By the Court.

Starnes, J.

delivering the opinion.

[1.] Taking this record for our guide in this case, our opinion is, that there was not sufficient evidence before the Jury to authorize a recovery by the plaintiff.

The letter of the Attorneys authorizes the inference, that the Sheriff was justifiable in suspending the farther execution of these fi. fas. and turning them over to Mr. Howard.

It is admitted for the defendant in error, that if he had so done, he would no longer, have been responsible; but it is insisted that the receipt for twenty dollars, given to him by Mr. May, the Attorney for plaintiff in execution, and bearing a date subsequent to the letter, viz: the 26th day of May, 1842, shows that the Sheriff did not turn over the fi. fas. to Howard, as requested, but retained possession of. them, and should be held responsible for a failure to use diligence in making the money on them.

Now the receipt is dated at a period subsequent to the expiration of this Sheriff’s term of office. It is shown by nothing in the case, when the payment of this twenty dollars was made to him. More than seven years elapsed after the date of the receipt, before this action was brought on the bond. Under these circumstances, we feel that the evidence, as it reaches us, without further explanation, is scarcely sufficient to show a want of diligence on the part of the Sheriff. And with the matter presented by the slight and' unsatisfactory evidence before us, (which is all that we can recognize as having been before the Jury,) we hesitate to say that the Jury were justifiable in holding these securities liable. Upon such evidence, it is better that the case should go back for a new trial. In that •event, if the plaintiff in execution be entitled to recover, and can show it by sufficient proof, he may yet do so; and will only be postponed in such recovery; whereas the mischief may be irreparable if the judgment below is sustained.