Smith v. Riley

32 Ga. 356

• Court: Supreme Court of Georgia
• Decided: March 15, 1861
• Status: Published

Opinion

By the Court.

Lumkih, J.,

delivering the opinion.

This record reminds me of the famous controversy as to the number of children the wife of John Rogers, the martyr, had. If the nine that followed their mother to the stake was exclusive of the one at the breast, why, then, she had ten, if inclusive, nine.

If this attachment is against Riley, as trustee, under the Act of 1856, giving a common law remedy against trustees, then it will not lie. The statute does not provide for attachments. Indeed, its terms would necessarily exclude this process. If, on the other hand, it is an attachment against S. G. Riley, in his individual character, and although admitted in the argument to be the other way,—and I am strongly inclined to think the pleader so intended it—then the pi’oeeedings should be sustained.

One of the best modes of testing this question would be to inquire on whose property the levy was made? Was it the individual property of S. G. Riley, or the trust estate of Lucinda Riley and her children, in S. G. Riley’s hands ? If the latter, the proceeding is illegal and void. If the former, although there is much confusion in the record, I do not see but that the attachment may be sustained.

It was this that produced the difficulty, I apprehend, in the Court below, and which creates the difficulty in this Court. The very idea of suing out an attachment against a Lrus tee, because he resides out of the State, is an absurdity. It cannot be done, and this is all we decide.

Let the judgment be affirmed.