
    Tucker vs. Atkinson.
    An execution creditor has the right to attach surplus monies in the hands of a sheriff, such monies not being in the custody of the law, but belonging to the defendant.
    On the 12th day of February, 1839, W. D. Wilkerson, a justice of the peace for the county of Fayette, issued an attachment against E. J. Rawlings to the sheriff of Fay-ette county, commanding him to seize so much of the estate of said Rawlings as would satisfy the sum of one hundred and fifty dollars debt, due to A. F. Tucker, suing for the benefit of George H. Wyatt. This attachment came to the hands of the sheriff, and was by him returned to the circuit court endorsed “no property found,” on the 13th day of February. On the 14th John H. Ball, coroner, gave a notice to the sheriff, N. Atkinson, to appear on the 4th Monday in February, at the next term of the circuit court of Fayette county, and answer what he was indebted to said Rawlings and what funds of said Rawlings’ he had in his hands.
    At the February term, 1839, Atkinson filed his answer, in which he stated that by virtue of an execution issued from the circuit court of Fayette county, which came to his hands on the 14th day of December, 1839, upon a judgment recovered at the October term thereof, 1839, by B. Harrison, for the sum of four hundred and twenty dollars and nine cents, against said Rawlings, he levied upon two tracts of land situate in said county, in the tenth surveyor’s district, in range five, section two, as the property of said Rawlings; that this levy was made on the 14th day of December, 1838; that he sold the interest of said Rawlings in said land at public auction at the court-house in the town of Sommerville, in Fayette county, on the 11th February, 1838, having given notice according to law; that the land was bid off to Jesse J. Gee, at eight hundred and ten dollars, that being the highest and best bid therefor; that after deducting the amount of Harrison’s judgment and cost therefrom he held in his hands the sum of three hundred and eighty-nine dollars and ninety-one cents, the proceeds of said sale. He submitted to the court whether said sum of money was the subject of garnishment.
    His honor, V. D. Barry, being of the opinion that the monies in the hands of Atkinson was the property of Raw-lings, And not in the custody of law, and subject to be attached as such, proceeded to the trial of the cause, and no plea being filed by Rawlings, a judgment by default was entered up against him for the sum of one hundred and fifty dollars and costs, and against Atkinson, as garnishee, for the same sum and the further sum of three dollars and eighteen cents costs. From this judgment Atkinson appealed in error to this court.
    
      Humphreys, for plaintiff' in error.
    
      H. G. Smith, for defendant in error.
   Green, J.

delivered the opinion of the court.

The question for decision in this case is, can surplus monies in the hands of a sheriff be attached by a creditor of the execution debtor. The act of 1817, ch. 54, sec. 1, provides, whenever any sheriff, &c. shall sell property by virtue of an execution for more than sufficient to satisfy said execution it shall be his duty to pay over such surplus money to the owner of the property so sold. The moment, therefore, that the sheriff receives a larger amount of money for property sold under execution than is required for its satisfaction he is bound to pay it over to the party whose property was sold. The reasons that have been advanced in support of the adjudications which protect monies a sheriff may have collected by virtue of an execution do not apply to the present case. These are: first, that the process of the courts would be obstructed, and their judgments rendered ineffectual; and secondly, that the money is in the custody of the law, and is not goods and effects of the judgment creditor. 3 Mass. Rep. 294-5. But in the case under consideration the process of the courts cannot be obstructed by allowing the surplus money, after the satisfaction of an exe-ration,.to be attached. The sheriff retains an amount sufficient to satisfy the process in his hands, and it cannot be affected by the disposition which may be made of the surplus. The other reason that money collected by execution is in the custody of the law has as little application to this case as the one already noticed. The act before referred to requires the sheriff to pay it over to the party whose property was sold. He is not required by the process to make such surplus money, but it comes into his custody incidentally and is not held by him by virtue of an execution; nor is the sheriff required to return such surplus money into court; but the moment he receives it he is debtor to the party whose property was sold, and therefore it can in no sense be said to be in the custody of the law.

The act of 1794, ch. 1, sec. 19, authorizes an attachment against the estate ,,of an absconding debtor, “wherever the same may be found, or in the hands of any'person indebted to or having any of the effects of the defendant.” The sheriff being debtor to the party whose property has been sold by virtue of an execution against him for the surplus money, after satisfying such execution, and such surplus constituting effects of the debtor in his hands, such money may, according to the express words of the statute, be attached in his hands. Let the judgment be affirmed.  