Gregory v. Waters , 19 Ga. 71 ( 1855 )

By the Court.

Starnes, J.

delivering the opinion.

[1.] This Sheriff’s return is deficient, because it shows that he failed to execute the jfi. fa. upon the assurance of William-Johnson, (who had been agent for Bobert H. Johnson, the-plaintiff in.fi. fa. in controlling the execution;) that it had been settled, as to Daniel B. Mitchell, and upon the entry having been made to this effect by Mr. Johnson on the execution.. This was done after the fi. fa. had been assigned, and after the Attorney for the assignee had given the Sheriff notice to make the money out of Mr. Mitchell.

Such a return is not sufficient to relieve the Sheriff from liability. He had the fi. fa. in his hands, with the assignment on it. He had the opportunity of knowing that another than Mr. Johnson controlled it, and he had no right to act upon the information of Mr. Johnson, nor to permit the latter to-make any entry upon thefi.fa.

He took the responsibility of acting on the information which he received from Mr. Johnson, and he must stand to-the consequences.

It is said that if the return be not true, it might be traversed. There is nothing, however,' to traverse, except the Sheriff’s statement of what William Johnson said. And this is not sufficient to exonerate him from liability.

It may be true, that it was understood, at the time of the assignment between the parties, that Mr. Mitchell was to be-released, and that a settlement had been made with him; and the Sheriff, in his return, states that Mr. Johnson said it was. true, and that it was by his neglect that it was not so entered. But if this was the case, it should have been distinctly set forth, and the Sheriff should have rested his defence upon it.. As it is, he represents himself as acting entirely upon theipse dixit of Mr. Johnson, which was no authority to him.

The return may be amended, when the case goes back, iff the above fact be true, and the Sheriff can make his defence accordingly.

Judgment reversed.