17 Ala. 312 | Ala. | 1850
Reuben King sued out an original attachment against the estate of William Burks, which was levied by the sheriff on fourteen bales of cotton. Before the trial 'term the cotton was sold by virtue of art order for that purpose,
It must be apparent to all that the defendant is not to lose his property if he successfully defends the suit commenced by the attachment. When a final judgment is rendered in his favor the lien created by the attachment is discharged, he becomes entitled to his property, and the sheriff cannot lawfully withhold it from him. — Clapp v. Bell, 4 Mass. 99; Suydam v. Huggeford, 23 Pick. 465. If the plaintiff in the attachment had sued out a writ of error immediately on the rendition of the judgment, or before the money was paid over by the sheriff, we should then think that the right of the defendant to demand it of the sheriff was taken away; and the sheriff, if he had notice of the writ of error, would not have been justified in paying it over to him. But after the judgment of the court is final and complete in favor of the defendant, unless it is suspended by writ of error or appeal, the right of the defendant to-have the property restored to iiitn is unquestionable, and it is therefore the duty of the sheriff on demand to deliver it to. him. It is true that it was the duty of the sheriff to have relumed the money received by him on the sale of the cotton to: the- clerk, and as he failed to do so, the clerk might have moved for judgment against him. But this- right of the clerk grows o.ut of the
The ruling of the Circuit Court was correct, and the judgment must be affirmed.