Western Railroad v. Thomas & Prescott

Bleckley, Judge. To aid a debtor in removing his property out of the state, is not an actionable injury to the creditor. This is the rule where process of seizure has not issued, 19 Ga., 141. That a debtor after arrest has been rescued by a mob, is no excuse to officer, 20 Ib., 598. No case exactly like the present was produced in the argument, and none such is known to us. The two just cited are as near in point as any we have been able t'o find. They would seem to suggest, if not to furnish, a rule of decision for the case before us. A ministerial officer, armed with due process of law and acting within it, is the servant of the state and not of the plaintiff. [314] Resistance to him is resistance to the public authority, and is a penal offence. Code, §4476. He can command assistance, and must do it at his peril when he is in a situation to require it. He can summon a fosse, and with their support, cai*ry his process into execution. If it was his duty to make the levy, and he failed to do it, the plaintiff’s remedy is against him, and not against those who obstructed him, Civilly considered, the obstruction was an injury to him, not to the plaintiff. If the officer could have made the levy had there been no resistance, then, in contemplation of law, he could have made it in spite of the resistance. It does not appear that he commanded assistance, or that there was none at hand. The court erred in sustaining the certiorari. Cited in argument, 58 Ga., 216; 1 Red. on Railways, p. 535 et seq., Code, §§2951, 2962, 3033; 48 Ga., 432; 1 Black, 101; 1 Espinasse, 205 and note. Judgment reversed.