Murphy v. The Justices Of The Inferior Court Of Wilkinson County

• Decision Date: 31 May 1852
• Docket Number: No. 49.,49.
• Citation: 11 Ga. 331
• Parties: Solomon B. Murphy, plaintiff in error. vs. The Justices of the Inferior Court of Wilkinson County, defendants in error.
• Court: Georgia Supreme Court

11 Ga. 331

Solomon B. Murphy, plaintiff in error. vs. The Justices of the Inferior Court of Wilkinson County, defendants in error.

No. 49.

Supreme Court of the State of Georgia

MAY TERM, 1852.

Certiorari, in Wilkinson Superior Court. Decided by Judge Johnson, April Term, 1852.

The Inferior Court of Wilkinson County, ordered the sale of a runaway negro, named Anthony, after a due advertisement of the same, as required by law. The Clerk of the Inferior Court issued a process, which he termed an attachment, requiring the Sheriff to sell, &c. The Sheriff levied this process on the negro, Anthony, and made the following return thereon:

" The above levy sold for four hundred and fifty-one dollars, and after deducting all costs and expenses, leaves a balance of two hundred and forty-seven dollars and twenty-five cents, paid to this attachment. S. B. MURPHY, Sh'ff."

Subsequently the Inferior Court passed an order as follows:

The Justices of the Inferior Court.

vs.

Anthony, a runaway negro man, slave.

Attachment from Wilkinson In ferior Court, returnable to January Term, 1847.

It appearing to the Court that Solomon B. M urphy, late Sheriff, has collected on the above stated attachment, the sum of $451: It is ordered that he show his actings and doings in relation thereto, &c.

The Sheriff made return thereto, that he paid out for fees and expenses, $252.58, leaving a balance of $198.42, which amount he paid to A. B. Raiford, late Treasurer of the County. This return was sworn to by the Sheriff.

A traverse was filed to this return, and issue formed thereon.

Upon the trial of this issue in the Inferior Court, Murphy, by his counsel, objected to the Justices of the Inferior Court sitting in the cause, on the ground that they were the parties plaintiff of record, which objection was overruled and excepted to.

He then objected to the farther progress of the cause, on the ground that the Clerk, and not the Justices of the Inferior Court, was the proper party; which objection was overruled and excepted to.

Plaintiff\'s counsel tendered in evidence, the deposition of A. B. Raiford, late Clerk and Treasurer, to show that the balance was never paid over to him. Defendant\'s counsel objected, on the ground that Raiford was interested and an incompetent witness. The objection was overruled and excepted to.

On these exceptions a writ of certiorari to the Superior Court was sued out, and on hearing the return thereto, Judge Johnson refused to sustain the writ; overruling the 1st and 2d grounds, and holding that there was evidence sufficient to sustain the verdict, without the testimony of Raiford.

In addition to the return on the attachment, it was proven that the books of the Clerk and Treasurer showed no money paid from the sale of said negro to the Clerk. There was no proof on the part of the Sheriff that he had paid the money to Raiford, the Clerk.

Exceptions were filed to Judge Johnson's decision, and error assigned thereon.

Cochran, for plaintiff in error.

Bower, for defendant in error.

By the Court.—Nisbet, J. delivering the opinion.

The first exception which I consider is, that the Inferior Court of Wilkinson County were not the proper parties to move the rule against the Sheriff. The arguments to sustain this exception are, that the process under which the Sheriff raised the money by the sale of the negro, issued in the name of the Clerk of the Inferior Court; that by law the fund is payable to him; that he is the only person who could move the rule, and therefore the Inferior Court cannot move it. The law directs that runaways, when committed to jail, shall be advertised, and if no owner appears, the Jailer shall notify the Justices of the Inferior Court; whose duty it shall be to cause the slave to be levied upon by the Sheriff, and after being advertised, to be sold by him on the first Tuesday in the month, unless a claimant shall appear andprove property in him; after paying jail-fees and all other expenses incurred on account of the slave, the balance of the money raised from the sale, is to be paid to the Clerk of the Inferior Court, and becomes a County fund, to be used as such; provided farther, that if within twelve months after the slave is sold, any person shall appear and prove property in the slave, the Justices of the Inferior Court shall order the amount thus paid to the Clerk, to be paid to such person. Cobb\'s New Digest, 1003, 1004. This record discloses that the Inferior Court passed an order directing the slave, Anthony, to be sold, and the Clerk issued a process in his own name, reciting this order, directed to the Sheriff, requiring him to advertise and sell him, returnable before the Inferior Court of Wilkinson County. It does not appear that any claim to the slave was put in, either before the sale, or within twelve months thereafter. No claim whatever was established at any time. By Statute, then, the proceeds of the sale, after paying jail-fees and other expenses, became a fund belonging to the County of Wilkinson. The Justices of the Inferior Court are by law, the public agents or trustees of all County funds, and it is competent for them in that character, to institute such process or proceedings as may become necessary for the collection and safety of such funds. Justices of the Inferior Court vs. Plankroad Company, 9 Ga. R. 485, \'86.

Upon this principle, it was legally proper for them to move against the Sheriff for this...