Oliver v. Ellzy

11 Ala. 632

• Court: Supreme Court of Alabama
• Decided: January 15, 1847
• Status: Published

Opinion

GOLDHWAITE, J.

There is no difficulty in this cause when the facts are ascertained. If the money collected by the sheriff in South Carolina belongs of right to Oliver, its receipt by Ellzy, under ordinary circumstances, would make him accountable to the true owner; but we understand his counsel to insist, that inasmuch as he executed the indemnity bond to the sheriff, he is entitled to be considered as holding the money in the same manner as the sheriff held it— and that if it was there attached, it is in custody of the law, until the attachment is discharged. If all this is conceded, we think it very clear the onus is with the plaintiff to show the existence, in point of fact, of the attachment of the money. There is no evidence that the money has ever been attached in the sheriff’s hands, except the admission growing out of the recitals in the indemnity bond, and these certainly cannot bind Oliver. But if it was made to appear that the attachment recited in the bond was levied in 1840, the inference arising from the lapse of time is, that it was so disposed of as to discharge the lien. It was so ruled by this court in Hobson v. Kissam, 8 Ala. Rep. 363, under circumstances which in principle are not distinguishable from this, point in the case.

Let the judgment be reversed, and the cause remanded.