DocketNumber: No. 21
Citation Numbers: 10 Ga. 158
Judges: Lumpkin
Filed Date: 7/15/1851
Status: Precedential
Modified Date: 1/12/2023
By the Court.
delivering the opinion.
But when such defence has been admitted, the directions to the officer in the writ were general; whereas, by the mortgage execution, he is commanded to sell" the particular property therein described. And this authority, we apprehend, would be sufficient to secure him from an action at the instance of the owner. At Common Law, where indemnity was tendered, the officer was bo'und to levy.
While I would stretch the powers of the Courts to the utmost, to shield vigilant officers, I am unwilling, for myself, to relax these salutary rules, founded in wisdom and vindicated by experience, which have been established for the protection of the community against agents who are artfully delinquent.
What are the facts here ? Mr. Wallace admitted that he neglected to levy the mortgage execution in time to make the mon
K this showing- was available, why was it not made in time to save his principal harmless ?
It is against both principle and policy, in my humble judgment, to allow an officer to take the law into his own hands, by peremptorily refusing, or, what is the same, wholly neglecting to execute the precepts of the Court to which he is bound, and which the creditor has a perfect right to insist upon. To suffer an officer to excuse himself, or even alleviate the damages consequent upon a wilful neglect of duty, by showing that property which he is specifically commanded to sell, is not subject to tfie debt, would be opening a wide door to collusive practices between officers and debtors, and their friends; and an execution instead ofbeingyÍKK et frudus legis, would be but a troublesome and expensive formality.
With these general views, the judgment below must be set aside, and a new trial awarded, without intending to define the exact status of the security, who is sued in this action. To do this, wrould be. to anticipate the decision of the Superior Court upon the point, should it ever arise; and this Court has not original jurisdiction.