Barnett v. Bass

COLLIER, C. J. 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 [954] admitted, but that court, as we understand it, supposed that money collected by an administrator was to be considered as, no longer in the predicament of the other tangible assets of the estate he represented; that he was entitled to retain and appropriate it in the course of administration for the benefit of all the creditors of the estate. If money may be taken under execution, this assumption is not well founded; for if an administrator suffers a judgment to be rendered against him, where the estate is insolvent, the personal responsibility is the same, whether it is satisfied by a levy and sale of other property, or by an appropriation of money. The question is, can money be levied on under a Ji-fa., and under what circumstances ? 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 [955] may be to give such a remedy, the law does not appear yet to have given it.” “ Originally, it was regularly the duty of the officer to have the money in court, and it has been held, that not even a payment to the creditor himself could excuse the performance of this duty.” But the court concede that the rigor of this rule has been considerably relaxed, and the sheriif may pay the money to the creditor out of court, if no circumstance occurs to obstruct or oppose it; and this although the form of the fi. fa. directs that the money shall be in court on the return day. If an execution against the goods and chattels of the person to whom the money is payable be in the sheriff’s hands, the court say, it seems “still to be the duty of the sheriff to obey the order of the writ, and to bring the money into court, there to be disposed of as the court may direct. This was done in the case of Armistead v. Philpot, (Doug. Rep. 219,) and in that case the court directed the money to be paid in satisfaction of the second execution. This ought to^be done whenever the legal and equitable right to the money is in the person whose goods and chattals are liable to such execution.” 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. [956] [Clay’s Dig. 218, § 86.] The second section of the act of 1833, “prescribing the duties of coroners,” provides, that the coroner shall execute all process when the sheriff is a party in interest to any suit in the circuit or county court,, and perform all the duties of sheriff, whenever, from any cause, he may be incompetent to act as such. He shall also be keeper of the jail, when the sheriff is imprisoned upon any civil or criminal process; and for failing to perform any of the duties prescribed in this section, shall be liable to all the penalties prescribed against sheriffs and jailors for similar defaults.— [Clay’s Dig. 159, § 2.] This last enactment extends to coroners the provisions of the statutes of 1819 and 1826, which are explicit and imperative in their terms! Yet we cannot think it was the intention of the legislature by the act of 1819 to subject the officer to liability for failing to pay over money collected on an execution to the creditor, where he held a fi. fa. against him ; especially if he had no visible estate subject to levy,' of sufficient value to satisfy the fi. fa.. The citation from 1st Cranch, shows that he is not authorized to make the appropriation himself, and we think that it would be his duty to retain the money and make a special return, both upon the execution upon which it was collected, and that against the party entitled to it, setting forth the facts and praying the order of the court for its appropriation. Upon such return being made, the court would direct the parties interested to bo notified, that they may come in, make themselves parties, and submit their claims to the court for decision, and then such an order would be made as was proper. [Henderson v. Richardson, 5 Ala. Rep. 349.] If this course of procedure could possibly devolve responsibility upon the officer, even where the money received was payable to a person whom the execution did not indicate, this might be guarded against by requiring such person to produce satisfactory evidence of his right to it, and where evidence was adduced prima fade sufficient, he might require a bond from the plaintiff in the execution who was seeking its appropriation, to indemnify him against the consequences of the retention. 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 enli957 tied, to priority, though the amount collected Avas not sufficient to satisfy both. The sheriff returned the facts specially on each of the executions, and asked the direction of the court as to the order in which they should be satisfied; and in the opinion delivered by myself, it is said, “ this was sufficient (according to the case of Braly v. Stout, Ingolsby & Co. at the present term,) if the return Avas made in good faith, and for the purpose of obtaining the instruction of the court, to have relieved the defendants from a judgment for damages and interest.” The same indulgence should be extended to the sheriff in a case like the present, and if he retains the money under an honest, though mistaken impression, that it is his duty to do so, and asks the direction of the court at the term to Avhich the execution on which it was made, is returnable, he should not be charged Avith damages and interest. From this vieAV it appears that the Circuit Judge erred in instructing the jury, that it Avas not the duty of the coroner to retain so much of the money collected on the writs of vendi-tioni exponas, as Avere sufficient to satisfy the execution in favor of the plaintiff, and to ask an order of court that he might thus appropriate it. We need not inquire whether the facts recited in the bill of exceptions show that the money, after it was paid to Roper, was in such a situation that the coroner could have levied on it Avithout committing a trespass upon the person; or whether the charge prayed, and that which Avas given on this point, are not abstract. Upon the law of this branch of the case, our opinion has been expressed in terms sufficiently precise to guide the ulterior action of the circuit court. For the error stated, the judgment is reversed, and the cause remanded.