23 S.E. 321 | N.C. | 1895
In this action a warrant of attachment was issued and levied upon the tax books for 1891 and 1892 in the hands of the defendant Wall, who was Sheriff of Stokes County when the lists were delivered to him for collection by the county commissioners. On a *263 motion to dissolve, heard before Bryan, J., the attachment was discharged, and the plaintiff excepted on the grounds: "1. For that his Honor erred in holding that the tax books are not subject to attachment in this action; 2. His Honor erred in ordering the tax books and all moneys collected by Sheriff J. H. Fulton under said tax lists to be delivered to the defendant J. C. Wall; 3. For that said order is contrary to the act of 1895, ch. 93, and is void." It is contended by the plaintiffs and alleged in their affidavits that there is nothing due to the State or county on the tax books, the Sheriff having settled all his taxes for those years. This may be taken to be true, and yet it is an immaterial fact from the standpoint from which the matter will be considered by us.
His Honor ruled that in no case is a tax book in the hands of a sheriff for collection liable to be seized by a creditor of a person who is Sheriff, under attachment proceedings. The other exceptions were abandoned here, and the only question before us then is, Was his (385) Honor's ruling correct? The plaintiffs contend that, as nothing is due to the State or county by the Sheriff, he having settled all his taxes and there being a large amount due on the books to the Sheriff by the tax payers of the county, the amounts so due are debts and even judgments against the taxpayers, and are therefore such property as may be levied upon by attachment under section 357 of The Code, which authorizes attachments to be levied upon all the property of the defendant. It is true this Court has decided that when a tax is imposed the taxpayer becomes a debtor, and what he owes is a debt in the higher sense of that word, as embracing any kind of a just demand. S. v. Georgia Co.,
There is no error in the ruling of his Honor vacating the attachment and ordering J. H. Fulton, who has charge of the tax books, to return them and also the moneys collected on them to the defendant Wall.
No error.
Cited: Powell v. Wall, post, 387; Wilmington v. Cronly,
(387)