Opinion
(December Term, 1847.)
A sheriff cannot apply money in his hands, which he has collected on an execution in favor of A, to the satisfaction of an execution in his hands against B, though it seems he may levy an execution on money in the possession of the debtor.
APPEAL from the Superior Court of Law of CASWELL, at Fall Term, 1847, Bailey, J., presiding.
Morehead for plaintiff.
E. G. Reade for defendant.
Debt on the bond given by the defendant Lea, as sheriff of Caswell. The breach assigned is in not paying to the relator a sum of money collected by a deputy of the defendant on a fieri facias on a judgment of a justice of the peace in his favor against one Palmer. Plea, conditions performed. On the trial the defense was that the deputy had at the same time a fieri facias on a judgment of a justice of the peace for a larger (95) sum in favor of Palmer against the relator, and that on receiving the money for the relator on his execution he applied the same to the satisfaction of the execution against him. Upon evidence to that effect the defendant prayed the court to instruct the jury that he was not liable in this action. But the court refused to give that instruction, and directed the jury that the defendant was liable in this action for the sum collected for the relator, unless he consented to the application which the deputy made of the money. Verdict and judgment against the defendant, and appeal.
It seems to be the received doctrine in England that money cannot be taken on a fieri facias. It has, however, been laid down by the highest court in this country that, when in possession of the debtor, it may be. Turner v. Fendall, 1 Crouch, 117. On that point, we believe, that case has been generally approved. It also determined that the sheriff cannot apply to the satisfaction of an execution against a person money which he received on an execution in favor of that person. For, until it be paid over to the party, it is not his goods. The courts have exercised a jurisdiction, where there are mutual judgments between two persons, to have one set against the other and satisfaction accordingly entered — especially when one of the parties is insolvent. That is not at all under the statute of set-off, as the judgments are already existing, and the opportunity for pleading the set-off has passed. It is an instance of a summary equitable jurisdiction over suitors, exercised for the saving of expenses and the promotion of justice. So too, there have been cases in which money, raised on an execution for a person, has been applied by the court to a judgment there against that person or to an execution in the hands of the sheriff. But (96) this last is not obligatory on the court in every case. Overton v. Hill, 5 N.C. 47. Indeed, more recently the notion seems to be prevailing in England that it ought not to be done in any case. Knight v. Criddle, 9 East., 48; Williams v. Barr, 2 N. R., 376. However that may be, the jurisdiction, supposing it to exist, belongs to the court and not to the ministerial officers. He cannot go out of his writ, and has no power to apply money, which he owes to or has received for a defendant, in discharge of an execution against him or his property. There is no authority for such a power in the sheriff, and that of Turner v. Fendall is a most respectable one against it. It has, moreover, been several times decided in this State that money thus in the hands of a sheriff cannot be attached. Overton v. Hill, 5 N.C. 47.
PER CURIAM. Judgment affirmed.
Cited: Williamson v. Neely, 119 N.C. 431.