Opinion
(Spring Riding, 1802.)
Money in the hands of a sheriff or clerk of a court cannot be attached.
THE plaintiff had attached money of the defendant's in the hands of the clerk of the court, which came into his hands upon the return of an execution, in which the defendant in this action was plaintiff. Upon that point the cause was removed to this Court, and now came on to be argued.
Haywood for plaintiff: I know not of any decision in this State upon the subject. We must argue upon the reason of the thing, and by analogy to other cases. I have heard it said that money in the hands of a sheriff, by execution, for the defendant, cannot be attached, because he has a precept from the court commanding him to have it before them. But in other cases the money may be stopped in his hands by order of court.
Mr. Burton replied, and his argument is contained in the opinion of TAYLOR, J.
It has been several times decided that moneys in the hands of a sheriff cannot be attached. Those decisions are analogous to the present. They were made on the ground that the judgments of courts of justice should be effectual. Were the moneys levied in pursuance of them attachable, they might be defeated; attachments would be levied on such moneys when perhaps the plaintiffs were far distant, and unable from that circumstance to resist the claims made against them; no man would be assured of the effect of his judgment.
Judgment for defendant.
NOTE. — See Overton v. Hill, 5 N.C. 47. But the surplus remaining in a sheriff's hands after the execution under which it was raised has been satisfied may be attached. Orr v. McBride, 4 N.C. 236. So of the surplus in the hands of a trustee after satisfaction of the trust debts. Peace v. Jones, 7 N.C. 256. Property in the hands of an administrator, which will belong to the debtor as a distributee, after settlement of the administrator's accounts, cannot be attached. Elliott v. Newby, 9 N.C. 21. See, also, Gillis v. McKay, 15 N.C. 172. An attachment cannot be levied upon property held by, or debts due to, absconding debtors as trustees for others. Simpson v. Harry, 18 N.C. 202.
Cited: Hunt v. Stephens, 25 N.C. 365; Coffield v. Collins, 26 N.C. 491.
Overruled: Gaither v. Bellew, 49 N.C. 493; Williamson v. Nealy, 119 N.C. 341; LeRoy v. Jacobosky, 136 N.C. 458.