
    William Steele & Co. v. Isaac Brown and M. M’Coul, Sheriff of Kanawha.
    Fieri Facias — May Be Levied on Money. — A Writ of Fieri Facias may be levied on ready money in possession of the Defendant.
    Same — Property LJable. — The Court may direct money made under an execution, and which money is in the hands of the Sheriff, or is brought into Court, according to the command of the Writ of Fieri Facias, to he paid over in satisfaction of another Writ of Fi. Fa. in the .hands of the same Sheriff against the goods and chattels of the Plaintiff in the first execution, he having the legal and equitable title to receive the same.
    Same. — And this, although it may not appear that sufficient effects cannot otherwise be found to satisfy the judgment.
    On the 4th of August, 1820, Steele & Co. sued out from the Superior Court of Eaw of Kanawha county, on a judgment obtained by them in that Court, against Edward Johnson, George Gee, and Isaac Brown, a Writ of Fieri Facias for $518 60 cents, with $6 94 cents costs ; indorsed to be discharged by the payment of $259 30 cents, with interest from the 31st August, 1819, till paid, and the costs, subject to a credit for $170, paid on the 2d of October, 1819, which Writ, returnable to the 1st Monday in October next after its issuing, was placed in the hands of .the Sheriff of Kanawha, who also had in his hands a Writ of Fieri Facias issued on a judgment of the same Court, in favor of the same Isaac Brown, one of the Defendants in the first execution, against the goods and chattels of Richard E. Putney and David Ruffner, for $410 38 cents, and costs, indorsed to be discharged by the payment of $205 19 cents, with interest from the 8th day of November, . *1819, till paid, and the costs ; which last execution bore date on the 16th of June, 1820, and was returnable to the 1st Monday in August in the same year. On it the Sheriff made the following return : “ The within execution is satisfied, which amounts to the sum of $206 38 cents, after deducting Sheriff’s fees ; which money I have now ready to pay. I have also a Writ of B'i. Fa. in my hands, from the Superior Court of Taw of-Kanawha county, in favor of William Steele & Co. against the goods and chattels of E. J. G. G. and Isaac Brown, who is the same Isaac Brown that is Plaintiff in the within execution, which execution in favor of William Steele & Co. against the said Isaac Brown, amounts, including interest and all costs, to the sum of $295 83 cents.”
    At an adjourned Session of the Superior Court of Kanawha county, in August, 1820, Steele & Co. moved that Court to direct the Sheriff to pay over to them the money made on the execution in favor of Isaac Brown against Putney and Ruffner, in part satisfaction of their execution against Johnson, Gee, and the said Isaac Brown. On which application a Rule was made on Brown, to shew cause why the money in the Sheriff’s hands should not be so paid over, returnable to the first day of the then next succeeding Term of the Court. At the October Term, the Rule was returned served, and was so amended as to include the Sheriff, in whose hands the two executions, as well as the money, still remained. The second Rule being also returned, the motion of Steele & Co. came on to be considered, and the Superior Court of Taw regarding the questions of Taw arising thereon as new and difficult, adjourned the same to this Court, on the following points :
    1. Whether money in the possession of a Defendant, may be taken in execution under a Writ of Fieri Facias issued against the goods and chattels of such Defendant ?
    2. When money made under execution is brought into Court, according to the command of the Writ, may the Court direct it to be paid over in satisfaction of a Writ of Fi. Fa. in the hands of the same Sheriff, against the goods and chattels of the Plaintiff in the first execution, he having the legal and equitable right to receive the same ? And if these questions are decided in the affirmative, then,
    3. Is the power of the Court to make such order confined to cases where sufficient effects of the Defendant in the second execution cannot otherwise be found to satisfy *the judgment; or, does the right of the Plaintiff in the second execution to have the money so applied, extend to all cases, when the money might lawfully be taken, if found in the possession of the Defendant in such execution ?
    In answer to these questions, the following opinion of the Court was prepared by Judge R. E. Parker:
    “ Whether money can be taken in execution, we find, upon examination of the authorities, is a question not very fully settled. Eord Mansfield, in the Case of Armistead v. Philpot,  is reported to have said, ‘ that he believed there were old Cases where it had been held that the Sheriff could not take money in execution, even though found in the Defendant’s scrutoire, and that a quaint reason was given for it, viz : that money could not be sold.’ But he has not informed us where those old Cases were to be met with ; and after a diligent search, we have not been able to find them. We think it probable there may be such Cases, but we know there are others, in which the contrary doctrine has been held. Thus, in The King v. Welbie, 2 Show. 166, it was expressly decided, that upon a Eevari Facias, the Sheriff may take ready money, it being to be levied de bonis et catal-lis : and, in this respect, it is like the Fieri Facias. So, in Dalton’s Sheriff, p. 145, it is stated that money may be taken on a Fieri Facias. A similar doctrine has been held by the Supreme Court of the United States,  after great consideration ; which has been followed, and even extended, by the Courts of New York,  It is true, that in a modern English Case or Cases, as we shall see when we come to consider the second question referred to us, the right of the Sheriff to levy an execution on money has been denied ; but, under such circumstances, (the authorities conflicting, and the ancient Common Eaw principle not well ascertained,) we have thought it our right and duty to judge for ourselves, and to adopt the opinion which appeared to us the most reasonable.
    *A Writ of Fieri Facias commands the Sheriff of the goods and chattels of the debtor to make a certain sum or debt, recovered by the Plaintiff. When he levies this execution on money found in the possession of the Defendant, he is acting strictly within his precept, since money is a chattel, and is in that respect unlike a bond, deed, or other chose in action. The Sheriff is not, by his precept, commanded to sell. His authority to sell arises collaterally out of the necessity he is under to cause to be made the debt, de bonis et catallis. In ordinary cases, he can make the debt only by a sale, since he cannot deliver goods which have no certain or fixed value, in satisfaction of a fixed and certain sum. But, if the Sheriff takes that which will satisfy the Plaintiff, by making the debt, without a sale, it would be idle to say that he is bound to sell, and still more so, to contend that he had no authority to take it, because in ordinary cases he is under the necessity of selling, in order to comply with the requisitions of his writ. The argument assumes the proposition that in all cases a sale is commanded ; whereas, in truth, the authority of the Sheriff to sell, results solely from his inability otherwise to satisfy the execution. Where he can otherwise satisfy it, his authority to sell ceases; but by no means his authority to levy. To get at this last conclusion, from such premises, we must argue in a circle, and begin by taking for granted what ought to be proved.
    Our Act of Assembly concerning executions,  which directs the Sheriff, on all executions, to sell by auction the goods and chattels taken, provided that if the owner shall give sufficient security to such Sheriff to have them forthcoming on the day of sale, it shall be lawful for him to take a delivery bond and restore the property until the day appointed for the sale; has been relied on to shew that money cannot be taken on a Fieri Facias, and that'the Legislature'did not contemplate its being liable. But to this, the Court answer in the words of the Chief Justice, in Turner and Fendall, “ that the provisions of that Act can only be considered as regulating the sale of such articles as in their nature require to be sold, and not as exempting from execution such property as need not be sold.” The Sheriff must proceed to sell if he has not already made the money, or if *he is commanded to make any thing but money, as Tobacco ; in which case, the article taken must necessarily be sold, in order to raise the money the Sheriff is commanded to make. The clause allowing the forthcoming bond, must be taken with the same limitation. In general, as we have seen, the Sheriff could only obey his Writ by a sale. To enable him to make it, without a sacrifice, time must be allowed, in order that he may give notice of its time and place. If, in the mean while, the property remained in the Sheriff’s hands, it would increase the expenses of the suit, without benefiting the creditor, and might prove very inconvenient to the Sheriff. Therefore, the Law permitted him to restore the property to the owner upon certain conditions. But this provision could never have been meant to extend to a case, where no sale is necessary, and where none of the reasons apply which induced the Legislature to allow a return of the property.
    
      
       Douglas, 231.
    
    
      
       In Turner and Fendall, 1 Cranch, 117.
    
    
      
       See Williams v. Rogers, 5 John. 163; Ball v. Ryers, 3 Caine’s Reports, 84; and held to extend to Bank Notes, on the ground that they are treated civiliter, as money in Handy v. Dobbin, 12 John. 220, and in Holney v. Nuncaster, 12 John. 395.
    
    
      
       See 1 Rev. Code, ch. 134, § 15 & 16, p. 550.
    
   It is therefore the opinion of the Court, that money in the possession of the Defendant may be taken in execution under a Writ of Fi. Fa. issued against his goods and chattels.

The second question referred to our consideration would, it is thought, have admitted of very little doubt, if it was to be determined by the reasonableness or unreasonableness of the practice, independent of all authority. By the form of the Writ of Fi. Fa. the Sheriff is commanded to have the same before the Court, to render to the Plaintiff of his debt and damages ; and by the form of his return, he admits that “ before the Court he has it ready, as the Writ requires.” This proves that when the Writ was devised, it was strictly the duty of the Sheriff to bring the money into Court, subject to its order ; and it has been even held, that payment to the creditor himself could not excuse the non-performance of this duty. Although this rule has been relaxed, and the Sheriff may now make such payment in ordinary cases, where there is no obstruction to his act, yet the right of the Court to direct the application of the money, still, in strictness, remains; being derived, not only from the form of the Writ as evidence of the Law, but, from the general authority of the Court, to superintend its process, and control the conduct of its officer in relation to a subject upon which *the process operates. Nor would the Sheriff, even now, be justified in deviating from the mandate of his Writ, by paying over the money instead of bringing it into Court, in any other than a plain case, where no dispute had arisen and ho execution had come to his hands against the goods and chattels of -the Plaintiff. In cases where the rights of other parties were involved, he would still be held down to the letter of his Writ. If, then, he brings money into Court, to be rendered to A. and the Court is applied to by a Plaintiff in another execution against A. to order the Sheriff to make the payment to him, it would seem to be most reasonable that it should be done, if money be liable at all to execution. For, why order the payment to A. if the money eo instanti was liable to be taken under the execution against him ? It would be a vain and useless thing, or it would be an unjust one.

The Court have examined the Cases for the purpose of seeing whether such an application on the part of the Plaintiff, in a second execution, has ever been resisted, and on what grounds. In Armistead and Philpot, before mentioned, it was granted : but as the Rule there, was made absolute, by consent, the Case is entitled to very little weight as an authority. In Turner and Fendall, the Court expressed a clear opinion, that where money made under execution is brought into Court according to the command of the Writ, the Court may direct it to be paid over in satisfaction of a second execution, whenever the legal and equitable right to the money is in the person whose goods are liable to such second execution. In New York this doctrine has been explicitly recognised in the Cases of Williams v. Rogers, and Ross v. Same, 5 John. 163; and in Ball and Ryers, 3 Caine’s Rep. 84. In opposition to it, the English Cases of Fieldhouse and Croft, 4 East. 510; Willows v. Ball, 5 Bos. & Pul. 376; and Knight v. Criddle, 9 East. 48, are cited in 2 Bac. Abr. 715, tit. “ Execution.” But on referring to the two first named decisions, they do not appear to effect the doctrine laid down in Turner and Fendall; and as to Knight and Criddle, it turns altogether upon the assumption, that money could not be taken in execution. In Fieldhouse and Croft, the Court refused to stay in the Sheriff’s hands the surplus of a former execution. But this surplus is not commanded to be brought into Court, nor is it at all included in the Writ, under which the Sheriff acts. On *the contrary, it is his duty to return it immediately to the debtor, without waiting for an Order of Court. It is the debtor’s money in the hands of a third person, having no authority over it; and, therefore, is unlike the case submitted to us, in its facts and principles.

The Case of Willows and Ball is, in the same manner, distinguishable from the present. The Defendant there, had previously recovered a verdict against the Sheriff for his misconduct in Office, and the Plaintiff’s application was, to order him (the .Sheriff), to pay over the damages so recovered in satisfaction of the Pi. Pa. This, the Court of Common Pleas refused, the Chief Justice declaring he could see no distinction between that money so due from the Sheriff to Ball, the Defendant, and any other debt due from the Sheriff to him ; and he put the case of a Steward having money of his Master, and that Steward to be Sheriff; and asked whether the Court could, in that case order him to pay over that money to a creditor of his Master ?

It is manifest that the question we have now to decide, does not involve such considerations.

But in Knight and Criddle, the Court of King’s Bench do seem to have decided the point against the authority of the Court to make the order. In that Case the Sheriff had made for the Defendant, under an execution in his favour, 60/. in bank notes, and the Plaintiff, on affidavit of the facts, moved for a rule to shew cause why the Sheriff should not apply it to the Pi. Pa. then in his hands against the Defendant. Lord Ellen-borough, is reported to have said, “ We ought not to force the Defendant to come here to shew cause against a motion founded on an assumption, that money, (and bank notes for this purpose are the same) may be taken in execution. It is an innovation on the Daw,” &c. To this dictum of his Bordship, unsupported by authorities, and obviously opposed to the opinion of Bord Mansfield, in Armis- , tead and Philpot, (who says the contrary idea is founded on aquaint reason,) we cannot give our assent. That it is no innovation upon the Baw, is proved by the Case in Shower, and the authority of Dyer ; and that it is strictly in accordance with general principles, we have already shewn. The authority of this Case, therefore, is destroyed, by shewing that its reasoning is false, or rather that it proceeds upon the incorrect notion, (perhaps hastily adopted,) that money was never liable to execution. It ought not then, to induce us to depart *frotn the American Authorities, and from what we consider a reasonable and convenient practice, opposed to no other Case, and to no principle of our jurisprudence, but supported by all its analogies, and by several respectable adjudications.

A more weighty objection to the practice, was urged in conference, arising out of a late provision in our Act of Assembly, which madfe Writs of Fi. Fa. returnable to the Clerk’s Office on some Rule Day, as well as to the Court; at the election of the Plaintiff. It was said with much plausibility, that if the Writ was returnable to a Rule Day, the Sheriff would be bound to pay over the money without waiting, in any case, for the Order of the Court, and that the money would then never come within its control, upon which circumstance its authority was by the argument made to depend. But a large majority of the Court are of opinion, that this alteration in the Baw ought not to be considered as changing any former rule of Baw, or abridging rights which once existed. To give it this effect, would be to establish an inconvenient and unreasonable distinction between executions returnable to Court, and executions returnable to the Rules ; not warranted by the form of the Writ, as prescribed in the same Act, nor intended by the Begisla-ture at the time. The sheriff is still commanded to have the money before “the Judges or Justices to render to the Plaintiff whether the day of the return is to the Rules, or to the Court. If it is returnable to a day prior to the Court, he may pay the money over, where no obstruction exists to his so acting ; just as he might under the modification of the old rule, pay the money without the order of the Court. But, if he has received notice to retain it, he must still comply strictly with his Writ, by bringing it into Court. His default in ordinary cases commences by non-payment at the Return Day; but a notice to retain, excuses the default, or perhaps a second execution against the Plaintiff, in the first; even without notice to retain. If such notice, or such second execution was delivered to him after the return day Of the first, he-might still, on the motion of the person entitled to the money, be fined for his default whilst it lasted : and thus in all cases the practice might be made to conform to the new *Baw, and under the discretion of the Court,, be so modelled, as to do substantial justice, and prevent all undue influence and partiality.

Por these reasons, the Court is of opinion, that where money made under execution, is in the Sheriff’s hands, or is brought into Court according to the command of a Writ of Pieri Pacias, the Court may direct it to be paid over in satisfaction of another Writ in the hands of the same Sheriff, against, the goods and chattels of the Plaintiff in the first execution, he having the legal and equitable right to receive the same.

As to the third and last question submitted, we can see no good reason for confining the authority of the Court to cases where sufficient effects of the Defendant cannot otherwise be found to satisfy the execution. These are perhaps the cases which have generally occurred in practice, but they are not the only ones in which the authority may be properly exercised. As it is an application to the sound discretion of the Court, it ought only to interfere in cases where the application seems reasonable. But its unreasonableness would not, in, our ,bpinioti, depend upon the circumstance of'the Defendant’s having sufficient other property. On - the contrary, if that were the only objection to the motion, the order ought to be made. But the Court thinks it unnecessary to decide, whether the right of the Plaintiff to have the money so applied extends to all cases where the money might be lawfully taken if found in the Defendant’s possession. This is a question not arising- in this record, and occupying a ground too broad to be incautiously taken. On the third point, it is the opinion of this Court, that the power of the Superior Court to make such order, is not confined to cases where sufficient effects of the Defendant in the second execution cannot otherwise be found to satisfy the judgment ; and that, upon the other branch of the said third proposition, it ought to give no opinion : which decisions of the Court are to be certified,” &c. 
      
       See 1 Rev. Code, ch. 134, § 1, p. 524-5-6.
     
      
       Vide 1 R. C. ch. 134, § 1. Change effected in 1813.
     