Elam v. Rawson

21 Ga. 139

• Court: Supreme Court of Georgia
• Decided: January 15, 1857
• Docket: No. 23
• Status: Published

Opinion

By the Court.

Benning, J.

delivering the opinion.

A main question in this case is, whether the sureties, after paying off the fi.fa. had the right to return it, and take out a ca. sa.

It was not insisted for the sureties, that the common law gave them such a right.

Nor was it insisted that any statute did, if the statutes were to be taken literally. And it is manifest from a bare reading of the statutes on the subject, that not one of them, if so taken, does. See the statutes. Cobb’s Dig. 592, 593, 594,595, 597, 598, 599, 600.

The Act of 1845, might have given such a right, if it had not been confined to cases that had occurred before its pas sage.

Such a right then, not having been given by the common law, or by any statute, if the statutes, be construed by their letter, the question, is whether a liberal construction ought to be applied to the statute, so as to make them, or some of them, give the right.

And we think not.

The common law leans towards that construction of all statutes, which is in favor of personal liberty, not that which is against personal liberty.

And our own constitution contains a section in these words: “ The person of a debtor, where there is not a strong presumption of fraud, shall not be detained in prison after delivering bona fide all his estate, real and personal, for the use of his creditors, in such manner as shall hereafter be regulated by law.” Cobb’s Dig. 1125.

We think, therefore, that none of the statutes can admit of a construction that would have given the right to these sureties, to return thefi.fa. and take out the ca. sa., consequently, we think that the ca. sa. was void; and therefore, that the Court below erred in not sustaining the motion to dismiss it on the ground that it was void.

It is needless to consider the other grounds of the motion.

Judgment reversed