Chapman v. Smith

20 Ga. 572

• Court: Supreme Court of Georgia
• Decided: August 15, 1856
• Docket: No. 103
• Status: Published

Opinion

By the Court.

Lumpkin, J.

delivering the opinion.

’[1.] Is the Constable entitled to the fee of thirty-one and ;a quarter cents allowed to him by law in:other cases, for making a return of nulla Iona on a tax execution ?

After a careful examination of all the Statutes applicable? ■to this subject, our conclusion is that the fee is due for this service; and the process by which we arrive at this result, is both short and simple.

[2.] By the Tax Act of 1812 the Constable is entitled to the same fees, and two and a-half per centum besides, on insolvent tax executions, that he is in other executions. (Cobb's Dig. 1059.) By the Act of 1840, (Pamphlet, 53,) the Constable is allowed a levy fee — that is, thirty-one and a quarter cents, for returning nulla Iona on fi. fas. generally. But the Act of .1812 being passed before the Act of 1840, Constables could not claim under the Act of 1840. The Act of 1840 was passed on the 22d of December, and the very next ■day, the Legislature passed a Tax Act re-enacting the Act of 1812 and declaring it in force for 1841, and from thence afterwards, until repealed. (Cobb, 1072.)

This being so, the provision in the 7th section of the Act of 1812, allowing the same fees on tax fi. fas. as in other cases, is made to attach to the Act of 1840, the same having been .passed after it.

Could the Constable retain these costs on funds in his hands collected on other executions ?

My colleague thinks not, because neither under the plea of retainer or set-off, or in any other way, can the State be judicially coerced to pay a debt. We concur in holding that these cost3 had no lien on money collected on other ■claims.