Pinney & Johnson v. Levy , 38 Ga. 141 ( 1868 )

Brow, C. J.

It was admitted by the counsel on both sides, on the hearing of this case in the Court below, that the attorney for the plaintiffs in ft. fa., had served a notice on the sheriff, that the money would be required at that term of the Court; and that in said notice, the attention of the sheriff was specially directed to the fact that the suit was for the value of the goods consigned to, and sold by, the defendant, for the plaintiffs, and that the second section of the Act, known as the “ stay-law,” excepts persons who hold money as bailees from the benefits thereof. And it was also admitted that the “ suit had been brought in the statutory fprm on an account, for the proceeds of goods sold by defendant for plaintiffs.”

Upon this statement of facts, the*Court below refused to hold the sheriff liable, and discharged the rule. We think this ruling was erroneous. As it was admitted that the suit was brought for the proceeds of goods sold by defendant for plaintiffs, in other words, that the defendant was a bailee, and as the sheriff was specially notified that such was the fact, it is very clear that the defendant was excepted from the benefits of the stay-law. If the sheriff refused, under these circumstances, to make the money by levy and sale, we hold that he cannot protect himself by pleading that the jH. fa., upon its face, did not show that defendant was a bailee. He should have proceeded with the fi. fa., and left the defendant to his affidavit of illegality, or other proper remedy, if he wished to contest the fact as to the character in which, he was sued. Having failed to discharge this duty, the sheriff is liable.

Judgment reversed.