Inclusion of attorney's fees unconstitutional.

- Former Code 1933, § 23-1611 (see O.C.G.A. § 36-6-27), insofar as the statute authorized a board of commissioners to include in an execution attorney's fees under former Code 1933, § 91A-3183 (see O.C.G.A. § 48-5-201), was unconstitutional and void because it was violative of U.S. Const., amend. 14, and Ga. Const. 1976, Art. I, Sec. I, Para. I (see Ga. Const. 1983, Art. I, Sec. I, Para. I), in that no provision was made giving the county treasurer and the sureties on the treasurer's bond an opportunity to be heard as to the amount or reasonableness of such fees, and the law does not otherwise provide for any method of attack thereon. Former Code 1933, § 23-1611 was further unconstitutional and void because in violation of Ga. Const. 1976, Art. I, Sec. II, Paras. I and IV (see Ga. Const. 1983, Art. I, Sec. II, Paras. I and III), in that the determination of what attorney's fees incurred were reasonable and the assessment of such fees were judicial functions and could not be delegated to an administrative official. Massachusetts Bonding & Ins. Co. v. Floyd County, 178 Ga. 595, 173 S.E. 720 (1934).

Relation to other sections.

- Provisions of former Civil Code 1910, § 1187 (see O.C.G.A. § 48-5-201), relating to issuance of executions against defaulting county tax collectors and their bondsmen, were by former Civil Code 1910, § 585 (see O.C.G.A. § 36-6-27) made applicable to the issuance of executions against defaulting county treasurers and their bondsmen. Massachusetts Bonding & Ins. Co. v. Board of Comm'rs, 172 Ga. 409, 157 S.E. 459 (1931).

Liability of official charged with custody of public funds greater than that of mere bailee. Lamb v. Dart, 108 Ga. 602, 34 S.E. 160 (1899).

Power of ordinary (now judge of the probate court) to cite treasurer to appear for settlement of accounts.

- Under former Code 1873, §§ 337, 553 and 563 (see O.C.G.A. §§ 36-6-14,36-6-27 and36-5-1 (since repealed)), the ordinary (now judge of the probate court) had jurisdiction to cite the county treasurer to appear before the ordinary for a settlement of the treasurer's accounts, as well as to order moneys in the treasurer's hands to be paid out by the treasurer to the proper persons, and upon the treasurer's failure to issue execution for such default. Smith v. Outlaw, 64 Ga. 677 (1880).

Power to issue execution against defaulting county treasurer was vested in the ordinary (now judge of the probate court), or in county commissioners if the fiscal affairs of the county were administered by the commissioners. Arthur v. Commissioners of Gordon County, 67 Ga. 220 (1881); Roberts v. Dancer, 144 Ga. 341, 87 S.E. 287 (1915).

Execution authorized against absconding treasurer.

- Ordinary (now judge of the probate court) is authorized to issue execution against an absconding county treasurer for money in the treasurer's hands. Jones v. Collier, 65 Ga. 553 (1880).

Execution to be issued in name of county.

- Execution provided by this section against a defaulting county treasurer should be issued in the name of the county; but if issued in the name of the ordinary (now judge of the probate court) for the use of the county, such irregularity is an amendable defect, and does not render the process void. Roberts v. Dancer, 144 Ga. 341, 87 S.E. 287 (1915) (see O.C.G.A. § 36-6-27).

Notice in writing not required.

- It is not necessary that notice in writing be given before the issuing of the execution provided in this section. Price v. Douglas County, 77 Ga. 163, 3 S.E. 240 (1887); Roberts v. Dancer, 144 Ga. 341, 87 S.E. 287 (1915) (see O.C.G.A. § 36-6-27).

Execution is issued summarily, and defendant then has the right to test questions involved by trial by jury. A defendant who has had a full and complete trial after the issuance of execution has no cause to complain that the defendant did not have it before. Arthur v. Commissioners of Gordon County, 67 Ga. 220 (1881).

Liability of treasurer on bank's insolvency.

- When a county treasurer, in making an accounting with the treasurer's successor, delivers a check representing public funds which the treasurer has in a bank, and the same is accepted in lieu of cash, and upon the acceptance and presentation of such check by the payee, credit therefor is transferred by the bank to the new treasurer, and the fact that the bank may be insolvent at the time of such transaction does not necessarily show a default by the officer making such accounting. In equity the transaction should be treated as a transfer of money to the extent of the amount which the bank could and would have paid in cash, if cash had been demanded. Board of Comm'rs v. Massachusetts Bonding & Ins. Co., 175 Ga. 584, 165 S.E. 828 (1932).

Arrest of execution.

- Execution by a county against the treasurer and the treasurer's surety must be construed to have been issued under this section; and having been so issued, the execution cannot be arrested by affidavit of illegality. Board of Comm'rs v. Massachusetts Bonding & Ins. Co., 175 Ga. 584, 165 S.E. 828 (1932) (see O.C.G.A. § 36-6-27).

Remedy by affidavit of illegality not applicable to treasurers.

- By Ga. L. 1915, §§ 1-3 (see O.C.G.A. § 48-5-203), the law in relation to issuance of executions against county tax collectors was so amended as to afford a remedy by affidavit of illegality, but that Act did not extend so far as to afford such remedy to county treasurers and the treasurers' bondsmen. Massachusetts Bonding & Ins. Co. v. Board of Comm'rs, 172 Ga. 409, 157 S.E. 459 (1931).

Interest.

- In proceeding under this section, the county, having collected and used money which actually belonged to the plaintiff, is chargeable with interest the same as any other person would have been. United States Fid. & Guar. Co. v. Clarke, 190 Ga. 46, 8 S.E.2d 52 (1940) (see O.C.G.A. § 36-6-27).

Interest charged against both principal and surety.

- Former Civil Code 1910, §§ 585 and 1187 (see O.C.G.A. §§ 36-6-27 and48-5-201) drew no distinction between the principal and surety in regard to payment of interest, but the interest specified in the statute was to be charged against both the principal and surety. Massachusetts Bonding & Ins. Co. v. Board of Comm'rs, 172 Ga. 409, 157 S.E. 459 (1931).