Outlaw v. Gilmer , 27 Ga. 365 ( 1859 )

By the Court.

Benning J.

delivering the opinion.

The action was founded on the second section of the Act of 1821, “to quiet and protect the possession of personal property, and to prevent taking possession by fraud or violence (Pr. Big. 449;) and there is nothing.in that Act, authorizing the making of the Sheriff, special bail, in any case. There is nothing in any statute, or in the common law, so far as we know, that authorizes the making of the Sheriff, special bail in such a case as the present; a case in trover, and, in trover under the Act of 1821.

The Judiciary Act provides for the making of the Sheriff special bail, in the cases of bail which it authorizes, but those cases are cases of contract, not, cases of trover.

For aught that we can see, then, the Court below was right, in discharging the rule nisi, against the Sheriff. But it is not to be inferred from this, that we think the Sheriff, not liable in any form. What we may think on that question will be expressed when it comes up.

Judgment affirmed.

McDonald J. absent.