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inquire whether this rule is applicable to our processes of attachment, for it is not involved in the facts of this case.

There is another class of cases which comes nearer to that in hand. It is held by them, in general terms, that money in the hands of a public officer is not the subject of attachment. In some of them the decision is put upon the phrases of the statute allowing the process (Chealy v. Brewer, 7 Mass. 259), where the words of the statute required an entrusting and deposit by the debtor with the officer, which words are not in our code; and if they were are met by the facts of our case. Or the money was part of a sum of public money, held by the officer for public purposes, the right to which

in the attachment debtor did not have the character of a private claim against the officer: Bulkley v. Eckert, 3 Penn. St. 368. It is not to be denied, however, that a broader rule has been laid down; that no person deriving his authority from the law, and obliged to execute it according to the rules of law, can be charged or garnisheed in respect of any money or property held by him, in virtue of that authority. See Drake on Attachments, sect. 494, et seq., and cases cited. I have examined enough of those cases to perceive the rules laid down by them. In all which I have read, however, there is this to be noticed: That the money in the hands of the officer of the law did not go there directly from the debtor in the attachment, but from some other and original and independent source, over which the attachment creditor had no control as an owner: Coppel v. Smith, 4 T. R. 313. In this there is a material distinction from our case. Here the money was the absolute property of the attachment debtor, and always continued to be its property, subject to the express and unlimited right of the clerk over it, conferred principally by the act of the attachment debtor. As, when the right of the clerk to withhold the whole or a part of it ceased, that debtor could de

mand and have the whole or a part of it, why, as above suggested, might not the debtor have its right of proceeding against the clerk; and, if so, why not be able to transfer that right; and, if so, why may not the law transfer it? Even in some of the cases above referred to, there is a distinction taken which makes for our view-as if money is collected by a sheriff in excess of the needs of the execution, that excess is attachable: Pierce v. Carlton, 12 Ill. 358; Lightner v. Steinagel, 33 Id. 510. And the reason given is that such excess is so much money in the hands of the officer, had and received for the use of the debtor in the execution. The same reason applies here to any portion of the deposit with the clerk in excess of the amount needed to satisfy the claim of Redfield. It is further said, that if anything arises to change the relation of the officer from an official obligation to a personal liability, he will be amenable to the process of garnishment. It will be seen further on, herein, that their change was effected in the case in hand. And it is to be seen on examination that many of the reasons given against the power to attach moneys, or the right to moneys, in the hands of an officer, do not apply to the case before us. In addition to those already given is this: That it would lead to litigation in one suit over the effects in another; and would produce embarrassment and confusion to permit one process to intercept money raised on another, while in the hands of the officer; and that it might often lead to injustice, inasmuch as often the names of persons who had the real right to money raised by process do not appear upon the process by which the money was got: Ress v. Clarke, 1 Dallas (Penn.) 355; Crane v. Freese, 1 Harrison (N. J.) 305. Yet, notwithstanding this, in the case last cited, it was held that the attachment was well levied on the rights and credits of the attachment debtor in the hands of the sheriff, and a feasible way was pointed out of avoiding the dif

ficulties spoken of, viz.: "For the officer to bring the money into court, which can control the application of the funds. In the case in hand the money is already in court, susceptible of the treatment indicated:" Dunlop v. Patterson Fire Ins. Co., 74 N. Y. 145, affirming the same case reported in 12 Hun 627.

Those who desire to pursue the subject further will find the question discussed in the cases cited below. It suffices to add here that all the cases cannot be reconciled with each other.

REPLEVIN. The principal case finds support in Acker v. White, 25 Wend. 614. It was there decided that property levied upon and seized by virtue of an execution, and then delivered upon a writ of replevin to a "third person," could not subsequently be levied upon by virtue of another writ against the defendant in the first execution, although the property be permitted by the plaintiff in replevin to continue in his possession and occupation. Until the claim under the first execution is disposed of, a second levy cannot be made: Goodheart v. Bowen, 2 Bradwell's App. 578.

SHERIFF. So a sheriff having collected money upon an execution not yet returnable, and of whom the money has not been demanded, it has been decided, cannot be held as trustee of the judgment creditor on process of attachment, because the money was neither goods nor effects of the creditor, nor was it a credit in the hands of an officer; nor was it money intrusted and deposited in the hands of another within the meaning of those words as used in the statute: Wilder v. Bailey, 3 Mass. 289. In the early case of Benson et ux. v. Flower, Cro. Car. 166, 176, it was decided that money in the hands of a sheriff was in the custody of the law and could not be taken from him by process of law. This case is applied to chattels in Farr v. Newman, 4 T. R. 651. Such is the general rule in England: Com. Dig., Attachment D; Bac. Abr., Cus

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toms of London, H. So the Supreme Court of the United States, at an early day, decided that money collected by an officer is not, while in his hands, the property of the creditor, and of course not liable to attachment: Turner v. Fendall, 1 Cranch 117; see Sharp v. Clark, 2 Mass. 91; Penniman v. Ruggles, 6 Id. 166; Staples v. Staples, 4 Greenl. 532; 1 Leonard 30, 264; First v. Miller, 1 Ohio 134; Farmers' Bank v. Beaston, 7 Gill. & J. 421; Overton v. Hill, 1 Murph. (N. C.) 47; Blair v. Cantey, 2 Spear (S. C.) 34; Jones v. Jones, 1 Bland (Md.) 443; Burrell v. Letson, 2 Spear (S. C.) 378; 1 Strob. 279; Zurcher v. Magee, 2 Ala. 253; Drane v. McGavock, 7 Humph. 132; Pawley v. Gains, 1 Tenn. 208; Clymer v. Willis, 3 Cal. 363; Hill v. La Crosse & M. Railroad Co., 14 Wis. 291; nor levy of an execution: Reddick v. Smith, 3 Scam. 451 Handy v. Dobbin, 12 Johns. 220; Williams v. Rogers, 5 Id. 167; Prentiss v. Bliss, 4 Vt. 513; s. c. 24 Am. Dec. 631; contra, Woodbridge v. Morse, 5 N. H. 519; Conant v. Bicknell, 1 D. Chip. 50; Hurlburt v. Hicks, 17 Vt. 193; Crane v. Freese, 1 Harrison (N. J.) 305; Stebbins v. Peeler, 29 Vt. 289; Lovejoy v. Lee, 35 Vt. 430; Dolby v. Mullins, 3 Humph. 437; Hill v. Beach, 1 Beasley 31.

Where the money in his hands has, however, ceased to be in his custody as an officer, it is liable to attachment: Watson v. Todd, 5 Mass. 271; King v. Moore, 6 Ala. 160; Davidson v. Clayland, 1 H. & J. 546; Tucker v. Atkinson, 1 Humph. 300; Jaquett v. Palmer, 2 Harr. (Del.) 144; Hearn v. Crutcher, 4 Yerg. 461; Wheeler v. Smith, 11 Barb. 345 Pierce v. Carleton, 12 Ill. 358; Dickinson v. Palmer, 2 Rich. Eq. (S. C.) 407; Cole v. Wooster, 2 Conn. 203; as where money is held by the officer after he has gone out of office: Robertson v. Beal, 10 Md. 125. This rule applies to the receiptor of the goods: Cole v. Wooster, supra; or to a sheriff where he is to pay

the money to the plaintiff instead of bringing it into court: New Haven Saw Mill Co. v. Fowler, 28 Conn. 103; nor can the sheriff apply money collected on one execution to the satisfaction of another execution held at the same time against the first judgment creditor, unless he consent to it. Such money is in the custody of the law and cannot be diverted from the course laid down for it by the law: Thompson v. Brown, 17 Pick. 462; Dawson v. Holcombe, 1 Ohio 134; Muscott v. Woolworth, 14 How. Pr. 477 (reversing same case decided at special term, 13 Id. 336); Baker v. Kenworthy, 41 N. Y. 215; Hardy v. Tilton, 68 Me. 195; s. c. 28 Am. Rep. 34; State v. Taylor, 56 Mo. 492; Ex parte Fiearle, 15 Id. 467; Prentiss v. Bliss, 4 Vt. 518; s. c. 24 Am. Dec. 631; Ar

mistead v. Philpot, 1 Doug.231; Winton v. State, 4 Ind. 321; Wood v. Wood, 4 Ad. & E. (N. S.) 397; contra, Dolby v. Mullins, 3 Humph. 437; s. c. 39 Am. Dec. 180.

It is further said that the specific money belongs to the sheriff, and the defendant has no leviable interest in it, and such is the rule in the above cases: Turner v. Fendall, 1 Cranch 117.

A levy upon money in the hands of an officer, being void, does not prevent a second levy on the defendant's goods and chattels Dubois v. Dubois, 6 Cow. 494; s. c. 2 Wend. 416; Miller v. Adsit, 16 Id. 363.

But the New York cases cited have been practically overruled, and in Wehle v. Conner, 83 N. Y. 231, it was held that judgment debts and moneys collected on execution by and in the hands of a sheriff are liable to attachment under process issued in an action against the judgment creditor; nor is this right affected by the fact that the judgment debtor is also the attaching creditor. It was further held that where the property of an attachment debtor is already in the hands of the sheriff to whom the attachment is issued, no formal levy or notice is necessary to

subject it to the lien of the attachment: Dunlop v. Patterson Fire Ins. Co., 74 N. Y. 145; contra, Masters v. Stanley, 4 Jur. 28; s. c. 8 D. P. C. 169; Harrison v. Painter, 4 Jur. 488; s. c. 6 M. & W. 387; 8 D. P. C. 349.

Where, however, the sheriff collects more money than is necessary to satisfy an execution (as sometimes must necessarily happen), the excess may be garnisheed Pierce v. Carleton, 12 Ill. 358; Lightner v. Steinagel, 33 Id. 510; sec Dunlop v. Patterson Fire Ins. Co., 74 N. Y. 152; s. c. 12 Hun 627; 30 Am. Rep. 283; Orr v. McBryde, 2 Car. L. Rep. 257; Lynch v. Hanahan, 9 Rich. (S. C.) 186; Payne v. Billingham, 10 Iowa 360; Hamilton v. Ward, 4 Tex. 356; Jacquett v. Palmer, 2 Harr. (Del.) 144; Wheeler v. Smith, 11 Barb. 345; Hearn v. Crutcher, 4 Yerg. 461; contra, Fieldhouse v. Croft, 4 East 510; Willows v. Ball, 2 B. & P. (N. R.) 376; Bentley v. Clegg, 3 Pa. L. Jr. 62; Crossen v. McAllister, 2 Id. 199; Harrison v. Paynter, 6 M. & W. 387; Fretz v. Heller, 2 W. & S. 397; Oriental Bank v. Grant, 1 W. & W. L. 16 (Vict.).

In Pollard v. Ross, 5 Mass. 319, it is said that the sheriff cannot be held as a trustee of the judgment creditor until after demand made upon him by the creditor.

Personal property under a levy on an execution is in custodia legis and cannot be levied upon subsequently on another execution from any other court; Jones' Stationery and Paper Co. v. Case, 26 Kans. 299; s. c. 40 Am. Rep. 310; (Benson v. Berry, 55 Barb. 620, denied); Turner v. Fendall, 1 Cranch 133; Armistead v. Philpot, Doug. 231; Willows v. Ball, 2 New R. 376; Fieldhouse v. Croft, 4 East 510; Knight v. Criddle, 9 Id. 48; Stratford v. Twynam, Jac. Rep. 418; Jones v. Jones, 1 Bland Ch. 443; s. c. 18 Am. Dec. 327.

So a deputy sheriff cannot make a valid attachment of chattels already attached by another deputy of the same sheriff,

even though the value be more than sufficient to satisfy the first attachment: Vinton v. Bradford, 13 Mass. 113; s. c. 7 Am. Dec. 119. This was upon the ground that the second deputy could not take the goods out of the possession of the first deputy, and until possession could be taken there could be no valid levy. Cited and the doctrine approved in Bagley v. White, 4 Pick. 397; Wheeler v. Bacon, 4 Gray 551; Robinson v. Ensign, 6 Id. 302, 305; Odiorne v. Colley, 2 N. H. 66; s. c. 9 Am. Dec. 39; Walker v. Foxcroft, 2 Me. 270. See, also, Burroughs v. Wright, 16 Vt. 619; West River Bank v. Gorham, 38 Id. 649; Moore v. Graves, 3 N. H. 408; Beers v. Place, 36 Conn. 578; Strout v. Bradbury, Me. 313; Oldham v. Scrivener, 3 B. Mon. 579; Harbison v. McCartney, 1 Grant

474.

So one deputy sheriff may sue another deputy of the same office in trover for attaching and removing property which the plaintiff holds under a prior attachment writ: Thompson v. Marsh, 14 Mass. 269; Draper v. Arnold, 12 Id. 449; or he may even sue the sheriff himself for the tort of another deputy in taking such property on another writ: Robinson v. Ensign, 6 Gray 302.

In Cresson v. Stout, 17 Johns. 116; s. c. 8 Am. Dec. 373, it was held that if a levy is made on goods under one execution, and a second execution is issued to the same officer, the levy is sufficient for both, and the goods may be sold under the second execution as well as the first: Leach v. Pine, 41 Ill. 65; State v. Doan, 39 Mo. 44; Van Winkle v. Udall, 1 Hill 559; Slade v. Van Vechten, 11 Paige 21.

If an officer has the funds received by him on execution attached, there is no doubt that he may pay the money into court, notifying the parties of his intention so to do, and thus release himself from any further liability: Stebbins v. Walker, 2 Gr. L. 90; s. c. 25 Am. Dec. 499; Crane v. Freese, 1 Har. (N. J.)

306; see Williamson v. Johnston, 7 Halst. 86; Sterling v. Van Cleve, Id. 285; Van Nest v. Yeomans, 1 Wend. 87; Ball v. Ryers, 3 Cal. 84.

In the case of Stebbins v. Walker, it was said: "It would seem to be taking broad ground to deny to the court the power of compelling a sheriff to bring the money he has raised on execution into court. This would be to deny to the court the right and power to compel obedience to the express command of their own writ; for by the execution the sheriff is commanded to have the money in court on a certain day, to render to the plaintiff for his debt or damages, and costs. And so imperative was this command formerly considered, that Lord Ch. Baron GILBERT, in his law of executions, p. 16, says: No payment to the party will discharge the sheriff's power by the writ; because he is commanded by the writ to have the money in court, then publicly to pay the party, which cannot be superseded by any private agreement between the parties.' And he afterwards adds: 'If the sheriff levy the money on the defendant, and delivers it to the plaintiff, unless it be paid into court, the plaintiff has his choice of a new execution, or of a distringas, &c., against the sheriff.' This strictness was afterwards relaxed, and it was held that the sheriff might pay the money to the party: Rex v. Bird, 2 Show. 87; Fulwood's Case, 4 Co. 64; Hoe's Case, 5 Id. 90 a; 3 Bac. Abr., tit. Execution, 710. But whenever the practice commenced, of permitting the sheriff to pay over the money directly to the plaintiff, it was a permissive departure from command of the writ: 3 Bac. Abr., tit. Execution, 716; 3 Lev. 203, 204; Turner v. Fendall, 1 Cranch 117, &c. And however convenient it may be in practice, yet it is not difficult to discern the wisdom of the old rule, which required the money to be brought into court, and publicly paid to the party.' The satisfaction of the judgment thereby becomes matter of record, and

put an end to further dispute on the subject."

Money paid to the sheriff to redeem land that had been sold on execution, was held exempt from seizure until it was accepted by the holder: Davis v. Seymour, 16 Minn. 210; see Lightner v. Steinagel, 33 Ill. 513.

CONSTABLE. The rule applicable to sheriffs is applicable to constables to the same extent. The money in their hands cannot be garnisheed: Burleson v. Milan, 56 Miss. 399.

But where a constable received an attachment writ subsequent to his receipt of an execution, it was held that he might apply the surplus left, after satisfying the execution, to the attachment writ, it having in the meantime been sustained: Wheeler v. Smith, 11 Barb. 345; Williams v. Rogers, 5 Johns. 163.

And if the sheriff takes the property from him by virtue of a subsequent lien, he is liable to the constable for enough to pay off the latter's execution, if that much was realized: Betts v. Hoyt, 19 Barb. 412. Nor can the constable take the property from the sheriff: Seymour v. Newton, 17 Hun 30.

CLERK. SO money in the hands of a clerk on a judgment is in custodia legis, and cannot be attached: Ross v. Clarke, 1 Dall. 354; Alston v. Clay, 2 Hayw. (N. C.) 171; Sibert v. Humphries, 4 Ind. 481; Murrell v. Johnson, 3 Hill (S. C.) 12; Bowden v. Schatzell, Bailey Eq. 360; Overton v. Hill, 1 Murph. 47. So money in his possession in any manner in virtue of his office is not attachable: Hunt v. Stevens, 3 Ired. 365; Drane v. McGarock, 7 Humph. 132; Ross v. Clarke, 1 Dall. 354.

After an order of the court is made to pay over the money to the parties entitled to it, it has been held in North Carolina as not exempt: Gaither v. Ballew, 4 Jones 488. But the judgment in no case can be attached: Daly v. Cunningham, 3 La. Ann. 55; nor seized: Hanna VOL. XXXI.—85

v. Bry, 5 Id. 651; the only way is to sunimon the judgment debtor as garnishee.

Where, however, money is paid to the clerk to secure the payment of costs, at the commencement of the suit, and which in the event the costs are made off the defendant is to be returned to the party paying it to the clerk, such money may be attached contingently in an action against the paying party, for it is the money of the one paying it in until the contingency (failure to make the costs off the principal defendant) arises that makes it the property of another: Dunlop v. Patterson Fire Ins. Co., 74 N. Y. 145.

JUSTICE OF THE PEACE.-When money is paid to a justice of the peace by a constable who has collected it upon execution, it cannot be attached : Corbyn v. Bollman, W. & S. 342 (Clark v. Boggs, 6 Ala. 809, is decided to the contrary, but upon a statute peculiar to the state of Alabama); Hooks v. York, 4 Ind. 636.

COMMISSIONER.-So money in the hands of a commissioner who has sold property under an order of court is in the custody of the law, and exempt from garnishment: Thayer v. Tyler, 5 Allen

94.

MASTER IN CHANCERY.-Money in the hands of a master in chancery, being the proceeds of the sale of land in a partition suit, which, by final order of the court had been directed to be paid over to one of the parties to the suit, as belonging to him, may be attached by the creditors of such party: Weaver v. Davis, 47 Ill. 235. This was upon the ground that his liability was changed from an official to one of personal liability, and consequently he was liable to the process: McKenzie v. Noble, 13 Rich. (S. C.) 147.

TRUSTEES.-The property held by a trustee appointed by the court is also exempt from levy with an execution or writ

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