The State vs. Wm. F. Luckie, 1 Georgia Decisions 69

At the time the judgment on which this ca. sa. was issued, with the balance of the property owned by Calhoun, was reported to the Court, and a discharge from personal confinement awarded to Calhoun, the attention of the creditors and their counsel W'as called to the subject of a nomination of trustees, to take charge of that portion of the property returned, w’hich ivas not reduced to possession; but time was asked for to agree upon a nomination, which was. by the Court, given to them.

The subject seems, from that period, to have passed from the minds of those more immediately interested, and the Court adjourned without the making of any order of appointment in the premises. Since the adjournment o( Court, and without authoritjr or warrant of Law, the ca. sa. which has led to this motion has been issued, by the Clerk of the Inferior Court, and by the Sheriff levied upon the body of the defendant. It is from the custody of the levying officer that the defendant, Ross, seeks, by this writ of habeas corpus, to be relieved.

That the defendant should be discharged from the custody of the Sheriff, and the ca. sa. itself cancelled, results from the fact that the debt which lies at the foundation of the ca. sa. was placed in the custody of the Superior Court, at its last term, and has not from thence been removed by competent authority. The control of this demand was given to the Court under the Law for the benefit of the creditors of Calhoun, and it must be, by the order of the Court, collected and distributed.

This duty cannot be performed, consistently with the right of the Clerk and Sheriff, on their own voluntary motion, or by the instruction of the plaintiffs or their agents, to issue and execute a ca. sa. to coerce the payment of the debt. The legitimate result of the right of the plaintiffs to insist upon the prosecution of this ca. sa., is their right to receive the money due upon it. It is equally the privilege of the defendant, toq> to pay the money to either of the plaintiffs or to the Sheriff, if he be Hable to the operation of the ca. sa. at the pleasure of the plaintiffs.

Suppose the money thus paid, and in vacation, I know of no means by which the Court can, in the present situation of the case, protect and secure the funds, or any part of it, to the creditors of Calhoun. The right of Bass to receive a moiety of the money due from the defendant, cannot be used as a pretext for permitting the ca. sa. thus to proceed.

That right the Court can and will respect and protect in the distribution of the money, when it shall be collected by its appropriate agents for this purpose, and be by him submitted to its order ; but if the money be paid in present circumstances on the ca. sa., it may pass beyond the control of the Court. The proper custody of the demand, and the trust connected with it, then require that the ca. sa. in question be stayed. This, of course, without prejudice to the demand on which it is founded.

The judgment of the Court, on this writ of habeas corpus, is, that the defendant be discharged from further confinement, and that the ca. sa., by virtue of which he has been arrested, be returned, and, by the Clerk who issued it, cancelled. It is ordered, that the Clerk enter this decision upon the minutes of the Court, and file the same of record. MARSHALL J. WELLBORN, j. s. c, c. c.