Boling v. Strickland

1 Georgia Decisions 170

• Court: Heard County Superior Court, Ga.
• Decided: March 15, 1843
• Status: Published

Opinion

This Certiorari was filed, for the purpose of correcting certain errors, alleged to have been committed by the Court, on the trial of a question, arising upon the hearing of an affidavit of illegality, filed to sundry fi. fa’s, issued from the said Court. The first ground, taken in the affidavit, was that the constable had levied the fi. fa’s, on land, without making any entry, that there was no personal properly to be found. The. law, upon this subject, is, that executions, issuing from a Justice’s Court, shall not lie levied on land or negroes, unless there is no personal property to be found, sufficient to satisfy the same : and the Courts have held, that the best evidence of this feet is the return of the officer. The return of the magistrate admits the fact to be as stated ; but states that lie overruled tins ground of illegality, upon the ground that the defendant pointed out the property, himself. It is true, the law gives to a defendant the privilege of pointing out such of his property, in his possession, as he may think proper : but this must be understood, with this limitation — that it be property, of the kind and description, subject to the execution ; and the land levied on was not so, unless the defendant had not a sufficiency of persona! property, to satisfy said executions. And this fact should have appeared, by the entry of the officer. I am therefore ofopinion, that the Justices erred, in overruling this ground of illegality. I do not think the other ground of illegality sufficient.

It is, therefore, ordered, that the Certiorari be sustained, so far as the illegality of the levy is concerned, and that the magistrates direct the constable (if there be a sufficiency of personal property to satisfy said executions) to dismiss the levy on the land, and proceed to raise the money, out of the personal property. And if there bo not a sufficiency; that he perfect his return, upon the executions, and then proceed against the land.