King v. Moore

6 Ala. 160

• Court: Supreme Court of Alabama
• Decided: January 15, 1844
• Status: Published

Opinion

GOLDTHWAITE, J.

-In Zurcher v. Magee, [2 Ala. Rep. 253,] we held, that money collected by a sheriff was not subject to an attachment against the plaintiff in the execution; but the principle of that case is supposed not to govern this. One reason why money, in this condition, cannot be reached, is, that it is in the custody of the law; and it would be greatly inconvenient to allow the final process of courts to be affected by other proceedings not under control of the parties to the execution. This reason does not apply to the excess which oftentimes must, necessarily, remain with the executive officer, after satisfying the plaintiff's demands. The officer is the agent appointed by the law, to sell the property of the defendant; and if, in the dischage of this duty, a sum of money remains with him, it is the money of the defendant, in no way distinguishable from any other case of agency. Nor does the circumstance, that a statute authorizes the defendant, when his money is improperly detained from him, to proceed summarily against the officer, bring the case within the principle which exempts money, in custodia legis, from attachment, because no process is meddled with; nor can any injurious consequences flow from considering it in the same view as any other money in the hands of an agent.'

Let the judgment be affirmed.