
    No. 21.
    Waller D. Whaley, plaintiff in error, vs. The State of Georgia, defendant in error.
    [1.] A Sheriff or oilier arresting officer, in a criminal prosecution, has no authority to seize the defendant’s property, andholdthe same for the payment of costs, unless directed so to do by the Magistrate issuing the warrant, as provided by the Act of 1816.
    
      Motion, in Baker Superior Court. Decision by Judge Warren, December Term, 1851.
    Waller D. Whaley was arrested by the Deputy Sheriff of Baker County, under a warrant, charging him with the offence of larceny. The officer issuing the warrant gave no directions under his hand and seal, for the seizure of a sufficient amount of property for the payment of all legal costs and expenses, as' provided by the Statute. The arresting officer, however, seized a horse, saddle and bridle. No schedule of this property was rendered to the committing Court, but there was a written consent by the defendant, at the return of the warrant, that the property should be sold and the money held in the stead of the property. The property was sold for the sum of one hundred and five dollars.
    The defendant moved in the Court below, that this money should be paid over to him. The Court refused the motion, and this decision is brought up by the defendant for review.
    H. Morgan, for plaintiff in error.
    Sol. Gen. Lyon, for defendant.
   By the Court.

Warner, J.

delivering the opinion.

In this case, the Sheriff of Baker shows no legal authority to retain the proceeds of the defendant’s property in his hands. The warrant under which the defendant was arrested, contained no directions to the arresting officer to seize the property of the defendant, as provided by the Act of 1816. Cobb’s N. Dig. 857.

The consent of the defendant that the property should be sold and the proceeds of the sale be held instead of the property, did not divest the defendant’s title to the money.

The arresting officer, so far as the record shows, had the possession of the defendant’s property, without the authority of law, an d the defendant’s consent that the property should be converted into money, confers no better title to the proceeds of the sale than he had to the property. The money might have been subjected to the payment ofthe costs after the conviction of the defendant, by entering up judgment therefor, accordingto the provisions of the Acts of 1820 and 1830, as was ruled by this Court, in Peters vs. The State of Georgia, 9 Ga. R. 109. Such judgment, or the execution issued thereon, would doubtless have conferred sufficient authority upon the Sheriff, to have retained the money from the time such judgment or execution was placed in his hands; or so much thereof, as would have been sufficient to pay the costs of the prosecution.

Let the judgment of the Court below be reversed.  