Russell vs. Slaton.

If the defendant had carried the title, by proof, down to Slaton, and left it in him, then, the case would have been like that of Dickerson vs. Powell in 21 Ga. 143.

I remark for myself, in relation to this last case, that I have no remembrance of the fact, that a decision of the point, as to the admissibility of the judgment in the claim case, was made. I do remember well, that Mr. Lyon rested his "case on the other point, and expressed indifference as to this." And the ground taken by the lower Court in rejecting the judgment, was, that the judgment was a nullity, not that the case was an action of ejectment, and that in actions of ejectment, such a judgment, even if good, would not be admissible. I simply say, therefore, for myself, that I think this question ought still to be considered an open one.

The Charges.

The charge, "that the Sheriff's sale made before the grant issued, did not pass a legal title to Davis, but only a color of title," is supported by the lessee of Garlick vs. Robinson (12 Ga. R.)

But even if this charge was wrong, (and I am disposed to think that it was,) the error is not one that would justify the granting of a new trial. Both parties really claimed under Davis, and the title which the plaintiff made out under him was a better one, than that made out under him, by the defendant. So that, the plaintiff is entitled to the verdict, even admitting, that Davis acquired Mr. Carcel's title.

For the same reason, the charge, "that the only question in the case, was the statute of limitation," is not such an error, if one at all, as to call for a new trial.

The charge, "that if Davis abandoned the possession to May and Lambeth, that is such an interruption in his possession as would defeat his statutory title" was manifestly right. If such was the case, the title would ripen, not, in Davis, but, in Lambeth and May.

[3.] The charge, "that if Davis, after holding seven years, then voluntarily abandoned possession, it would destroy his

DeLongchamp vs. Hicks & Co.

If such was the

had never been

statutory title," was also right, we think. case, the presumption would be, that he holding adversely, but had all the time, been holding in subordination to the true title.

It was not proved, that there were any creditors of Davis at the time when he abandoned the land, if he did abandon it, therefore, the request was not justified by the facts.

Upon the whole, we are not prepared to say, that there ought to be a new trial.

Judgment affirmed.

FERDINAND DELONGCHAMP, plaintiff in error, vs. J. W. HICKS & Co., defendants in error.

Bail process is placed in the hands of the Sheriff to execute and return; he arrests the defendant but discharges him without taking bond for his appearance to answer the debt of the plaintiff; he takes an obligation from the friend of the defendant to indemnify and save him harmless in the event of a recovery by the plaintiff, the defendant depositing with that friend the amount of the plaintiff's demand. Plaintiff obtains judgment, and a return of no property is made upon the execution. Held, that the Sheriff is liable to be ruled for the money.

Rule against Sheriff, from Floyd county. Decision by Judge HAMMOND, at August Term, 1857.

J. W. Hicks & Co. instituted suit against Ferdinand DeLongchamp, and pending suit required bail of him; and at the August Term, 1856, recovered judgment for $90 33, besides cost. Upon this judgment a fi. fa. issued and a return thereon made by the Sheriff, of "no property." Application was made after judgment, for summons of garnishment, and Daniel S. Printup served with a copy. The garnishment against Printup was subsequently dismissed, and Hicks &

DeLongchamp vs. Hicks & Co.

Co. moved for a rule against the Sheriff to show cause why he should not pay over to them the amount due on the fi. fa.

The Sheriff answered, that he arrested defendant on a bail process, pendente lite, who deposited in the hands of one Smith, $100, and Smith gave his obligation to hold and save him (the Sheriff) harmless. Afterwards, Printup took up Smith's obligation and gave his own. He further answered that no fi. fa. had ever come into his hands against said DeLongchamp.

Whereupon counsel for the Sheriff moved to discharge the rule on the following grounds:

1st. Because it does not appear that the Sheriff ever had the fi. fa. in his hands, by which he could have raised the money.

2d. Because the statute pointed out the mode of proceeding, when the Sheriff fails or neglects to arrest a defendant on bail process and to take security.

3d. Because the Sheriff was not liable under this rule and his answer thereto.

The Court refused to discharge the rule, but made the same absolute, and the Sheriff excepted.

D. S. PRINTUP, for plaintiff in error.

MITCHELL, contra.

By the Court.-LUMPKIN, J. delivering the opinion.

The plaintiff in error in this case, Ferdinand DeLongchamp, was arrested upon bail process; and having deposited the amount of the debt with one C. H. Smith, the Deputy Sheriff failed and neglected to take bond from the defendant to answer the debt; but took Smith's bond to indemnify and save him harmless; provided the debt was recovered. Afterwards D. S. Printup took up Smith's obligation and substituted his own in its place.

DeLongchamp vs. Hicks & Co.

Right here, we beg leave to say, that while we doubt not that the interposition of the friends of DeLongchamp was prompted by the belief that he was harshly dealth with, still we must say, that it is an interference, not to be countenanced by the Courts, and so far as the arresting officer is concerned, highly reprehensible.

A judgment was obtained against the defendant and a return of "no property" made upon the execution issuing thereon. And now the question is, is the Deputy Sheriff liable by rule for the debt? Some of us think the 50th section of the Judiciary Act of 1799, (Cobb 1142,) broad enough to cover this case. It declares that "the Sheriff shall be liable either to an action on the case or an attachment for contempt of Court, at the option of the party, whenever it shall appear that he hath injured such party, either by false returns or by neglecting to arrest the defendant, or to levy on his property, or to pay over to the plaintiff or his attorney, the amount of any sales which shall be made under or by virtue of any execution, or any moneys collected by virtue thereof."

One member of the Court thinks, the neglect to arrest the defendant in this section, means upon final, and not mesne process; especially as the Sheriff and his securities are made chargeable as special bail, under this same Act, for failing or neglecting to take bail, or for taking insufficient bail. But notwithstanding this provision, no one would doubt but that the Sheriff would be liable to suit or action upon his bond, for his failure to take bond in this case; and that the remedy, by making him and securities liable as special bail, is only cumulative. If still liable then to an action, why not to rule, independent of the 50th section, and even at common law, for his contempt of Court in refusing to execute his process in this case. And liable not only criminaliter, but to the party injured, just as much so as failing to arrest the defendant upon ca. sa.? The proceeding by rule is preferable every way to an action. It is more summary, and therefore more salutary, and yet deprives the officer of no right.

The

Goodwyn vs. Goodwyn.

party aggrieved must show the injury he has sustained, the same as if he had sued. No wonder the redress by rule is superseding in England, that by ordinary suit. It works better, because more speedy and less expensive, and greatly more efficacious.

We all concur, that under the peculiar facts of this case, the highly culpable conduct of the officer, in refusing to perform his sworn duty, and having the money, if not in hand, at his command, that he is subject to rule in this case. Had he regarded the obligations imposed on him by his oath of office, "that I will faithfully execute all writs, warrants, precepts and processes, directed to me as Sheriff of the county, and true returns make, and in all things well and truly, and without malice or partiality, perform the duties of the office of Sheriff, during my continuance in office, and take only my lawful fees; so help me God," the plaintiffs would have got their money long since.

Judgment affirmed.

NANCY GOODWYN, plaintiff in error, vs. NAPOLEON B. GOODWYN, defendant in error.

[1.] The Acts of Congress of 1790 and 1804, prescribing the mode for making the Acts of the Legislature, records, judicial proceedings and exemplifications of office books, in one State, evidence in another, does not abrogate the common law method of proving these documents, but is merely cumulative.

[2.] The Courts in this State have no right to require the production of an original execution from another State. An examined copy, proven in the mode prescribed by law, is sufficient.

Trover, trom Coweta County. Decided by Judge BULL, September Term, 1857.