Campbell v. Hasbrook

Breese, J. By section 54 of the statute relating to justices of the peace and constables (Scates’ Comp. 706), it is provided, that all executions issued by a justice of the peace shall be directed to any constable of the proper county, and made returnable to the justice issuing the same within seventy days from the date. By section 82, on the return of all executions, the constable shall pay over to the justice of the peace who issued the same, all money not previously paid over to the plaintiff. The penalty for neglect is found in section 116. The proceeding is summary before a justice of the peace on five days’ notice, by motion. In this proceeding, the amount neglected to be paid over is recovered, with twenty per cent, damages thereon for the detention. Section eighty-two evidently implies that the constable may pay the money going to the plaintiff directly to him, before he makes return of the execution to the justice of the peace. This is his privilege. The plaintiff can intercept the money on its way to the justice of the peace. The constable must do one of two things, either bring the money to the justice on the return of the writ, or the plaintiff’s receipt for the money as having been paid over to him. Nothing less will excuse him. He is to be governed by the law, and he is told by the law, very distinctly, when he has collected the money, he must, if he has not paid it' over to the plaintiff, pay it over to the justice of the peace. He has no right to determine that he will do neither, but will appropriate it to pay a debt he may suppose the plaintiff owes John Doe, in whose favor he holds an execution against the plaintiff, and so he will pay it to John Doe. We know of no principié justifying this. The money collected may be subject to the legal or equitable claims of other parties, which the officer cannot cut out, by any act of his own. It is not, in legal contemplation or intendment, the money of the plaintiff in the execution, until it is actually paid over to him. The party from whom it was collected, might enjoin it in his hands. It cannot be permitted that a constable or other like officer, shall have authority to exercise an equitable jurisdiction over money collected by him, and appropriate it according to his notions of right and justice. In this case, the legal title to the money was in the plaintiff, Hasbrook, Lammers being merely the cestui que use. The constable, by appropriating it to pay Lammers’ debt, virtually converts this equitable into a legal right, which he had no power to do. The case of Reddick v. Smith, 3 Scam. 452, in principle, decides this case. It is there said distinctly, the money while in the officer’s hands, is regarded as in the custody of the law. It does not become the property of the judgment creditor' until it is paid over to him, and consequently cannot be levied on or attached as his. This settles the question. The case of Turner v. Fendall, 1 Cranch, 117, is to the same effect. We are clearly of opinion that the constable’s return contains no apology or excuse for the non-payment of the money according to the exigency of the writ, and we see nothing in the case to protect him against the motion to amerce, in pursuanse of section one hundred and sixteen. Judgment affirmed.