
    KING v. MOORE.
    1. A sum of money produced by (he sale of the effects of a defendant in execution, remaining in the hands of a constable, after satisfying executions against the defendant, is subject to be attached; and it is no defence to the garnishee process (hat the defendant in execution lias commenced proceedings against the constable for the recovery of the surplus so remaining with him.
    Weit of error to the Circuit Court of Russell county.
    King, the present plaintiff in error, was summoned as a garni* slice, at the suit of Moore against Lewis, and answered, that ho had in his hands 113 dollars belonging to the defendant, the remainder of the proceeds of a sale made by him as constable, after satisfying the fii. fas. directed to him. In a supplemental answer, he asserts the money had been demanded from him by the defendant in execution, and that he had received notice of a rule against him to pay over the money.
    The court rendered judgment against him for the amount of the judgment previously rendered against the defendant in attachment, which Was less than the sum in his hands. He now assigns the judgment as error.
    Heydektfeldt, for the plaintiff in error,
    relied on the case of Zurchcr v. Magee, [2 Ala. Rep. N. S. 253.]
    
    
      No counsel appeared for the defendant in error.
   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.  