Rogers, Sheriff, vs. May.

Rule, from Columbia county. Decided by Judge HOLT, April Term, 1858.

A motion was made in the Court below by Robert H. May, for a rule nisi against Richard W. Rogers, Sheriff, to show cause why he should not be attached for contempt, in permitting a voluntary escape of Richard Downs, who had been arrested by said Sheriff, under a capias ad satisfaciendum in favor of Robert H. May vs. Richard Downs.

The Sheriff showed for cause, that on the 5th of February, 1858, he had arrested said Richard Downs, and taken the bond then in Court and returned his acts and doings, with the writ and bond, to Thomas M. Berrien, from whom he received the writ; and that the said Thomas M. Berrien returned said writ and bond to the Superior Court. That in doing this, he acted in good faith and by advice of counsel; that on the 21st April, 1858, he had re-arrested Richard Downs, and taken a bond in strict conformity with the statute; that no Term had been lost, and that the plaintiff in ca sa. had not been injured in any respect.

The first bond was defective in several particulars. It was payable to the Sheriff. It stated, that the defendant was arrested at the instance of Robert H. May & Co., when the ca. sa. was in the name of Robert H. May. It was made returnable to the Court next after its date, which was only thirteen days off. It was conditioned for the defendant's appearance to take the benefit of the Acts of the General Assembly for the relief of honest debtors, instead of, to stand to and abide by, such proceedings as might be had in relation to his taking the benefit of the Act of 1823, for the relief of honest debtors.

After argument, the Court held that the bond was void; that the Sheriff was guilty of a voluntary escape, and amenable to the rule for contempt, and overruled every ground assumed by the Sheriff; and to this decision of the Court the Sheriff filed his bill of exceptions, assigning the same as error.

Rogers, Sheriff, vs. May.

MCKENZIE & WARD; and MILLERS & JACKSON, for plain

tiff in error.

C. H. SHOCKLEY, contra.

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

Ought the rule nisi against the Sheriff, to have been made absolute?

It ought not to have been, if the escape was a negligent one. This is not disputed. The Court below considered the escape to have been, not a negligent, but a voluntary,

one.

If we go by what is said, and, perhaps, what is decided, in Colley vs. Morgan, (5 Ga. 185,) we must say, that the escape was no more than a negligent one. And we incline to think, that it was no more than a negligent one. The reason why the Sheriff let the defendant go at large, was, not that he wished him to be at large, but, that he felt himself constrained by the law, (mistaken though he might be,) to let him go at large-that law which he had to interpret for himself.

Would such an escape as this, amount even by the common law, to a satisfaction of the debt? Hardly.

No case was cited in which, an escape in such a case as this, was held to be voluntary.

But say that this escape was voluntary, does it follow that the rule should have been made absolute?

The reason why a voluntary escape subjected the Sheriff, by the common law, so absolutely to the payment of the debt, was, that by a voluntary escape, the ca. sa. became satisfied, or, at least, functus officio, so that the Sheriff could not re-arrest the defendant under it. Watson Shff. 141.

But the common law in this respect, has been changed by our statutes.

An Act of 1811 says, that both the fi. fa. and the ca. sa. "shall be of full force until satisfied, without being obliged VOL. XXV.-30

Rogers, Sheriff, vs. May,

to be renewed on the Court roll from year to year." Cobb. Dig. 510.

An Act of 1843, says, that "in any case where a debtor has been arrested under an execution against the body, and is afterwards discharged from such imprisonment, either by the authority of the plaintiff or otherwise, without the debt being paid, that such arrest and discharge shall not operate as a satisfaction of the debt, but the debtor's property shall be liable to the judgment as though no arrest had been made." Id. 515.

This repealed the common law rule which says, that a liberation of the arrested debtor shall be a satisfaction of the

ca. sa.

And the effect of it in the present case, was, to prevent the ca. sa. from being "satisfied" by the act of the Sheriff in letting the defendant go at large on receiving from him the first bond.

The ca. sa. thus being prevented from being "satisfied,” by this act of the Sheriff, the statute of 1811, aforesaid, came in, and said, that the ca. sa. should be "of full force until satisfied." And if the ca. sa. was still of force after this act, then the Sheriff had the right to re-arrest under it.

Is it true, that the latter words aforesaid, of the statute of 1843, would, if they were all, authorize an implication, that satisfaction was to be sought for only out of the debtor's property? But those words are not all; there are the words of the statute of 1811, which are, that the ca. sa. shall be of full force until satisfied;" and we are not allowed to make a statute by implication repugnant to another statute, if there is not some great necessity for doing so. There is no such necessity here.

These things being so, we think, that the Sheriff had the right to make the second arrest, and to take the second bond; and, that as he acted throughout in good faith, and under legal advice, and, as no Term of the Court was lost by his mis

Warnock vs. Watson et al.

take, the rule against him should not have been made ab

solute.

Judgment reversed.

SIMEON WARNOCK propounder, plaintiff in error, vs. GREEN G. WATSON, et al. caveators, defendants in error.

Persons who are cited in the Court of Ordinary, become parties to the proceeding, and when there is an appeal in that proceeding, they are carried up as parties to the appellate Court, though they may not be the actual appellants: consequently, it may happen, that the appeal will be good as to them, when it will not be good as to the actual appellants.

Caveat, from Burke county. Decided by Judge HOLT, April Term, 1858.

This was an appeal by Green G. Watson, caveator, from the following order and judgment, passed by the Ordinary of the county aforesaid, at the January Term, 1858, of his Court:

"Upon the application of Simeon Warnock, of the county of Burke, to set up a nuncupative will of Everett Tindall, late of said county deceased, and to have granted to him letters testamentary thereon, it appearing to the Court by the testimony of Dr. Charles A. Thompson, James M. Sheppard and William Jenkins, that Everett Tindall aforesaid, did, on or about the fifteenth day of November, in the year of our Lord eighteen hundred and fifty-seven, in the time of his last sickness, and in the house of his (the said deceased's) habitation, he being then and there sound in mind, pronounce, in the presence of said witnesses, his nuncupative will, in the words following:"

"I call upon you all to bear witness, it is my wish and

Warnock vs. Watson, et al.

will, if I die, that all my property shall go to my child: I want my cousin, Simeon Warnock, to be my Executor, manage my affairs, pay my debts, and save what he can for my child. I want him to take my child home, raise it, and manage the property for it. All of you bear witness that this is my last will."

"And it further appearing to the Court that the said deceased left no widow, and only one child, a girl, named Martha Lurania, to whom process has issued, calling upon her to contest the setting up of the said nuncupative will, if she desires. It is therefore, ordered, that the said testamentary words be set up as the nuncupative will of deceased, that they be admitted to probate, and that letters testamentary thereon be issued to Simeon Warnock, the executor, therein named, in terms of the statute in such case made and provided."

Upon the calling of the said cause in the Court below, the propounder of said will, by his attorneys, moved to dismiss the appeal of the said caveator, on the following grounds:

I. Because the appeal had not been legally transmitted by the Ordinary to the Clerk of the Superior Court; and because there was no evidence before the Court that any appeal had been entered.

II. Because the said Green G. Watson was not a party interested in the said proceeding, and had no right to caveat the same, nor to appeal from the said judgment, for the following reasons:

1st. Because he was not named in said will, either as executor or legatee; and his interest in said will, or in the estate of said deceased, did not appear either by his own oath or any other proof.

2d. Because his caveat does not disclose such an interest as entitled him to be heard in said cause.

3d. Because he had no interest under said will; was not next of kin to the deceased, and would not have been a distributee of the estate of said deceased if he had died intestate.