Colley vs. Morgan.

7th. Because, by and in said answer, the sheriff expressly claimed a trial by jury, which was denied him by the Court, and to which he was entitled under the Constitution.

Upon which exceptions, the errors complained of are assigned in this Court.

LYON & CLARK and STROZIER, for plaintiff in error.

1st. The Court erred in deciding that the escape was such a contempt as was punishable by attachment, because the Common Law and the British Statute of force, do not give such right; and 4 Black. Com. 231 it has not been granted by the Act of 1791. 1 Anne 1701. Schley's 1 Rich. 2d. 1377. Schley's Dig. 129. Dig. 300. 5 Anne, 1706. Schley's Dig. 333. Statute of 1799. Prince, 431, sec. 10. Craig vs. Maltbie, 1 Kelly, 547.

2d. The Court eired in striking out the answer of the sheriff, for the following reasons, to-wit:

First, Because thereby, the Court considered him liable to attachment, notwithstanding he had taken a bond which was evidence that it was negligent, and not voluntary escape. Allen on Sheriffs, 237. Craig rs. Maltbie, 1 Kelly, 548. 8 Wheeler's Common Law, 63, (case cited.) Mongin vs. Cheney, 1 Hill's S. C. R. 145. 1 Tomlin's Law Dictionary, 120. Act of Dec. 19th, 1823. Prince, 291. 1 Barker's Sheriff, 177. Allen on Sheriffs, 236.

Sewell on Sheriff's, 419.

Second, Because he thereby refused to permit the Sheriff to surrender the defendant's body, or to make a sufficient bond, as the Sheriff should have been allowed to have purged himself of the contempt in such manner. Allen on Sheriffs, 211, 221, 239, Wheeler's Com. 240. 19 Eng. Com. Law, 183. 28 do. 376. Law, 63. Refer to State vs. Tipton, 1 Beckford Ind. R. 167. Plank vs. Anderson, 5T, 17. Bonafous vs. Walker, 2T, 55. Sewell on Sheriffs, 418. 1 Swift, 543. 3 Black. Com. 415.

3d. Because the facts which the Sheriff's answer exhibits, show that the plaintiff had sustained no injury by this negligent escape.

Prince.

4th. Because the facts of the answer show that he acted in good faith, which he thereby, then and there, proposed to prove, and having substantiated them, would not have been liable to attachment for contempt. Craig vs. Maltbie, 1 Kelly, 549. 8 Wheeler, 63. 1 Tomlin's Law Dic. 120. Sewell, 419.

Colley vs. Morgan.

5th. Because he thereby decided the sheriff to be the judge of the bond, when he is not a judicial but a ministerial officer, and the plaintiff had not given him a bond or instructions, and nevertheless to be liable to an attachment for contempt. Act of Dec. 19, 1823. Prince, 291.

6th. Because, in striking out said answer, the facts therein set forth, were prevented being determined by a jury, on a traverse of the rule. Act of 1840. Hotchkiss, 527.

7th. Because, by striking out said answer, Colley was thereby virtually deprived of the right of trial, by jury, upon the facts. Constitution of U. S. and State of Georgia. Craig vs. Maltbie, 1 Kelly, 546.

H. J. DEVON, for defendant in error.

1st. When a defendant is arrested by ca. sa. is it not the duty of the officer to keep him in close confinement until discharged by the judgment of a Court of competent jurisdiction, or by authority of law? 2 Jacob's Law D. 394. 2 Tidd, top page, 1024.

2d. When a defendant is arrested by ca. sa. and the officer permits him to go at large, knowingly, and of his own consent and authority, is he not guilty of a voluntary escape? 2 Jacob, 419. 1 Tidd, 232. Allen on Shffs. 228, 236, 238.

3d. When a defendant is arrested by ca. sa. and the officer lets him go free voluntarily, by taking a bond in a sum less than twice the amount, (when the Statute says he shall take a bond in twice the amount of the debt,) is the officer thereby authorised to let the defendant go at large, or is the bond good as a statutory bond, or is the officer not guilty of an escape? Prince, 291. 1 Kelly, 582.

4th. If an officer arrests a defendant in a ca. sa. and after such arrest he takes a bond of the defendant in the sum of $50 less than twice the amount of the debt, (when the Statute says it shall be in twice the amount of the debt,) and then lets him (the defendent) go free, will it release the officer from liability? and if so, can he not take bond for less than twice the amount of the debt? (except a mere fraction.) And can he not, by the same power, increase the bond to ten or more times the amount of the debt? And would not this power give to the officer the authority to reduce or increase the bond as he pleases, without refer

Colley vs. Morgan.

ence to the Statute, and thus destroy the plaintiff's rights, or oppress the defendant? Prince, 291. 1 Kelly, 582.

5th. After an officer arrests a defendant in ca. sa. is it not

functus officio? And if the officer permits a voluntary escape of the defendant, can he again arrest the defendant, or will the defendant, by surrending himself up again, release the officer from liability for an escape? 2 Jacob, 419. 1 Tidd, 232. Allen, 228, 236, 238.

6th. When an officer is guilty of a voluntary escape under a ca. sa. is there any act of the defendant that can release him from liability? Allen on Shffs. 238.

7th. Is a trial by jury absolutely indispensable in obtaining a judgment in a Court of competent jurisdiction? 1 Kelly, 457,

548.

Sth. Cannot, or does not a party waive and dispense with his right of trial by jury, by confessing the facts and charges alleged against him? 1 Kelly, 547, 548.

9th. Is a judgment void that is not obtained against a party by a trial by jury.

10th. Is not the officer guilty of a contempt in disobeying the process of a Court of competent jurisdiction, according to law? That is to say, is he not guilty of a contempt in not arresting a defendant in ca. sa. as directed by it? And is he not guilty of a contempt, after arresting a defendant in ca. sa. by permitting him to go at large voluntarily, when the writ directs him. to keep the defendant in close custody. 2 Jacob, 51. Allen on Sheriffs, 236.

11th. Is not an officer, by permitting a voluntary escape of a defendant in ca sa, guilty of a contempt. Does he not disobey the process of the Court, in letting him go free? And is he not liable by attachment for the same? 1 Kelly, 547. 1 Tidd, 232.

12th. Will ignorance of the law, or faith without works, when it is contrary to law, excuse an officer in disobeying a process of the Court, or from a contempt, or in permitting a voluntary escape?

By the Court.-WARNER, J. delivering the opinion.

By the Judiciary Act of 1799, it is declared, "the sheriff shall be liable, either to an action on the case, or an attachment for contempt of Court, at the option of the party, whenever it shall

Colley rs. Morgan.

appear that he hath injured such party, either by false returns, or by neglecting to arrest the defendant, or to levy on his property, or to pay over to the plaintiff or his attorney, the amount of any sales which shall be made under, or by virtue of any execution, or any moneys collected by virtue thereof." Prince, 431. An attachment for contempt was made against the sheriff, in the Court below, for neglecting to arrest a defendant in execution, alleging that the plaintiff in ca. sa, had been injured by the default of the sheriff. By the return of the sheriff, it appears he arrested the defendant in the ca. sa. and took bond with security, for his appearance to take the benefit of the honest debtor's Act of 1823. That Act provides, that when a defendant in ca. sa. shall be arrested, and is desirous to take the benefit of the Act, he shall tender to the sheriff a bond, payable to the party at whose instance the arrest is made, in twice the amount of the debt, conditioned for his appearance at the next term of the Court, in which said ca. sa. was obtained, then and there to stand to and abide by such proceedings as may be had by the Court, in relation to his taking the benefit of the Act, and in case of failure to appear, judgment shall be entered up instanter, upon said bond, against the principal and his securities, to be discharged upon the payment of the debt and costs. The Act further provides, that upon the debtor tendering such bond, it shall be the duty of the sheriff to release him from custody, any law, usage or custom to the contrary, notwithstanding. Prince, 291-2. The sheriff released the debtor from custody, upon his tendering a bond, in good faith, but it is objected, that the bond is void, as not being in twice the amount of the debt, and therefore, is no security to the plaintiff in the ca. sa.

[1] The Act does not declare, that if the bond shall be taken in any other manner than is therein prescribed, it shall be void; and in our judgment, it is not void, but good, and binding on the parties. It does not lie in the mouths of the obligors to object to the bond, because it is less onerous than the Statute requires. Burroughs vs. Louder, et al. 8 Mass. Rep. 380.

The plaintiff in ca. sa, was entitled to have entered up judgment on it, for the amount of his demand, if the principal debtor had not appeared at the Court. Although the bond is not in double the amount of the plaintiff's demand in the ca. sa, yet it is for an amount sufficient to cover his demand. The plaintiff, therefore, in the language of the Act of 1799, was not injured by the act of

Tift and others vs. Griffin.

the sheriff in taking the bond for a less amount than was required by the Act of 1823. But the return of the sheriff further shows, tha the had the body of the defendant in ca. sa. at the Court, ready to surrender him, and urged that as a reason why he ought not to be attached for contempt.

[2.] According to the return of the sheriff he was not guilty of a roluntary escape, but a negligent escape, and had the right to re-take the defendant, and surrender his body in Court, as it appears from the record he offered to do. In order to subject the sheriff to an attachment for contempt under the Statute, it must appear that he has injured the plaintiff in ca. sa, by neglecting to arrest the defendant. The sheriff's return is admitted to be true, in which he states he did arrest him, and took the bond in good faith, and that bond in our judgment is good, and binding on the parties to it, and in default of the appearance of the principal debtor, judgment could have been entered thereon against him and his securities. But the sheriff farther shows, he had the defendant in Court, ready to comply with its order. How, then, has the plaintiff in ca. sa, been injured? If the sheriff had been guilty of a voluntary escape, then he would have had no right to have re-taken the defendant, and surrendered his body in Court; but he was not guilty of a voluntary escape, and therefore had the right to re-take him, and have him in Court, to answer whatever demands the plaintiff in ca, sa, might have against him. His body was legally there, either to take the benefit of the Act for the relief of honest debtors, or be imprisoned until he was discharged by due course of law.

Let the judgment of the Court below be reversed.

No. 22.-NELSON TIFT, et al. Justices of the Inferior Court of Baker county, plaintiffs in error, vs. B. M. GRIFFIN, administrator, &c. defendant.

[1.] An Act of the Legislature which authorizes the issuing of execution to collect money belonging to the public in the hands of a collector, receiver, or