10 Ala. 951 | Ala. | 1847
It is unquestionably true, that a fieri facias founded upon a judgment against an administrator, which commands the officer to whom it was directed to make a given sum of money of the goods and chattels of the intestate, &c., may be levied according to its mandate. This is a proposition which the circuit court would readily have
The cases cited by the counsel for the defendant very satisfactorily establish, that money of the debtor in his possession may be taken in execution, if it can be done without committing a trespass. In Turner v. Fendall, 1 Cranch’s Rep. 117, it was said, “The court can perceive no reason in the nature of the thing, why an execution should not be levied on money. That given in the books, viz : that it cannot be sold, seems not to be a good one. The reason of a sale is, that money only will satisfy the execution, and if any thing else be taken, it must be turned into money; but surely, that .the means of converting the thing into money need not be used, can be no adequate reason for refusing to take the very article to produce which is the sole object of the execution.” Again, “the general rule of law is, that all chattels, the property of the debtor, may be taken in execution, and whenever an officer has it in his power to satisfy an execution in his hands, it is his duty to do so, and if he omits to perform his duty, he must be accountable to those who may be injured by the omission.” The question is then asked, is money not paid over by the officer to the plaintiff in execution, his property ? and it is answered, that on principle the actual legal ownership of the specific money, which the officer may have received, does not vest in the party entitled to it, until payment, and until this is done, an execution cannot be levied o.n it. “ A right to a sum of money in the hands of a sheriff can no more be seized than the right to a sum of money in the hands of any other person, and however wise or just it
The form of the writ o £ fieri facias, as prescribed by the act of 1807, directs, that the officer charged with its execu-Hion shall have the money thereby directed to be made before the judge of the court from which it issues, on the day of its return, to render to the plaintiff, &c. [Clay’s Dig. 199,200.] By the act of 1819, it is made the duty of a sheriff, whenever an execution shall be placed in his hands, to proceed to levy the same, and make sale of the property thus levied on, in such time as by law directed, and he is required to pay the amount obtained by such sale “ to the party or parties entitled to the same, on the application of such party or parties, or within ten days thereafter, under the penalty of forfeiting six per centum per month, for every month such sheriff shall fail to pay over such money,” &c. [Clay’s Dig. 205, § 21.] A statute passed in 1826, also authorizes the court to which an execution is returnable, to issue an attachment against a sheriff, &c. who shall have collected or received money on an execution, which he fails to pay over, upon its appearing to the court that the party thus failing, has had one day’s notice that the jnotioii will be made for an attachment.
In Wood v. Gary, et al. 5 Ala. Rep. 43, there were two executions in the sheriffs’ hands against the same defendant, and the plaintiffs in each insisted that his execution was enli-