M'Crea v. Galey

• Decision Date: 31 October 1807
• Citation: 1 Tenn. 251
• Parties: M'CREA v. GALEY AND OTHERS.
• Court: Tennessee Circuit Court

1 Tenn. 251

M'CREA

v.GALEY AND OTHERS.

Superior Court of Law and Equity of Tennessee.

October, 1807.

Galey was a constable, in whose hands accounts were placed by the plaintiff for collection. An attachment was taken out, and before any judgment obtained, the money was paid to the constable amounting to about $60. Judgment was obtained by the plaintiff in the County Court upon motion, under the authority of an act passed in the year 1803, c. 18; two dollars were collected upon the execution.

Hamilton, for the defendant, insisted, that the plaintiff should proceed to make the necessary proof to sustain his motion under the Act of Assembly, in the same manner as if it were in the County Court.

Barry, e contra; and

Per Curiam.

We will take notice of any part of the proceedings of the County Court except what is complained of in the petition,^a1 and give judgment accordingly for the plaintiff, if there is enough in the record to enable us to do it, otherwise for the defendant.

Hamilton then insisted that the summary method pointed out by the act did not extend to any cases, except those where money had been collected under execution, which was not the case here as was evident, because the magistrate had no authority to issue execution above $50. Barry admitted that no execution had issued, but insisted that the defendant and his securities were liable.

Per Curiam.

The method pointed out by the act is summary, in derogation of the principle of the common law, as notice is not required by it to the adverse party; it can not be extended. The constable in collecting acted only as agent, and under this act was not liable otherwise than when collecting under executions. Though there were $2 collected under the execution, the judgment below must be reversed in toto.

a1.4 Johns., 536.