
    Joseph Summers v. William Caldwell.
    A. moved for a rule on tbe sheriff to show cause why he should not be ordered to pay over to him money which he had collected for him on execution. The sheriff showed for cause, that he had levied an execution which he had in his hands against A, on the money, and had paid it over to the plaintiff in that execution. Rule discharged.
    Where the sheriff has collected money on execution for a plaintiff, the Court can order it to be paid over on an execution in the sheriff’s hands against the plaintiff, 
    
    Money may be taken in execution ut semble. 
      
    
    Tried before Mr. Justice Non, at Newberry, Spring Term, 1820.
    This was a rule upon the sheriff, calling on him to show cause why he should not be ordered to pay over to the plaintiff, money which he had collected for him on an execution against Isaac Seymore and Lewis Disher.
    The sheriff showed for cause, that he had levied an execution which he had in his hands against Somers, on the money, and had paid it over to the plaintiff in that execution. The presiding Judge, therefore, ordered the rule to be discharged, and this was a motion to reverse that decision.
    
      
      *(a) See, also, Ball v. Ryers, 3 Caines’ Rep. 84. The case of Armistead *343] v. Philpot, 1 Doug. 230, seems to be overruled by Knight v. Criddle, 9 East, 48, and Willows v. Ball, 2 N. R. 376.
    
    
      
      
         It would appear that the question, whether money ooul'd be levied on under a ft. fa, must have been one o'f frequent occurrence, yet it is surprising how few authorities are to be found on the subject in either the English or American books.
      In the case of Knight v. Criddle, 9 East, 48, Lord Ellenborough expresses his opinion clearly, that money (and bank notes) cannot be taken in execution, although that was not precisely the question in that case, and this appears to be strengthened by the cases of Fieldhouse v. Croft, 4 East, 510, and Willows v. Ball, 2 Bos. & Pull. N. R. 376.
      The point is raised in the argument, in the ease of Price v. Crump, et al., but it is not noticed in the decision of the Court. This case was an appeal from the Chancellor, and Mr. Wickham, in his argument, says, “The only question is, can the sheriff levy a fieri facias, delivered to him to be executed upon money in his hands belonging to the debtor ? Or rather, must he not return the execution ready to satisfy ? The Chancellor has admitted the proposition.” 2 Henn. & Mun. 91. But this rests only on the statement of counsel.
      In New York, in the case of Hardy v. Dobbin, 12 John. 220, they have decided that not only money but bank bills may be taken in execution. Mr. Justice Spencer, who delivered the opinion of the Court, says (observing on the case of Turner v. Fendall, 1 Cranch, 133), “In that case all the cases on the point were reviewed, and it was held that money could be levied on. We now fully concur in the doctrine there advanced; we perceive no.objection in principle, why money should not be taken in execution. It is the goods and chattels of the party; and it appears to us to comport with good policy as well as justice, to subject every thing of a tangible nature, excepting such things as the humanity of the law preserves to the debtor, and mere dioses in action, to the satisfaction of the debtor’s debts.” And in a note to the case of Ball v. Ryers, 3 Caines’ Rep. 84, the reporter states, that “in the principal case, Mr. Justice Livingston said he had no doubt money might be levied on.” See, also, Williams v. Rodgers, 5 Johns. Rep. 167. R.
      See Harp. 275 ; 2 Rich. 4, 105 ; 1 Bail. 39 ; 1 Strob. 24; 1 McM. 318.
    
   The opinion of the Court was delivered by

Nott, J.

The old notion, that money could not be taken in ^execution, because it could not be sold, seems not to be sup- L ported by modern adjudications. Indeed, I doubt whether it was ever considered as law, though there appear to be some opinions favoring such an idea. Dalton says, “ this writ of fieri facias is only against the goods and chattels of a man, viz., leases for years, corn growing or sown upon the ground, or movable goods, as cattle, corn in the barn, household stuff, money, plate, apparel,” &c. Dalton’s Sheriff, 145. But it seems to be doubtful whether the money so collected can be considered as belonging to the plaintiff until actually paid into his hands. Turner v. Fendall, (1 Cranch, 117.) He nevertheless has an interest in it, of which the Court can take notice, and order it to be paid over to an execution against him. Armistead v. Philpot, (1 Doug. 220.) And although it does not appertain to the office of sheriff to judge of the disposition of money which he has collected, yet the granting of an attachment is, in a great measure, discretionary with the Court, and will not be ordered against an officer who has been guilty of no contempt or wilful disobedience of the order or process of the Court; and particularly against one who has only done what the Court itself would hare ordered to be done, although it did not belong to him to judge of the matter. If any other person than the plaintiff had interposed a claim, the sheriff might have been ordered to pay the money into the Court as by the execution he is directed. But it is not alleged, that it had been paid to a person not entitled to receive it. Discharging the rule, however, determines nothing with regard to the rights of the parties, the sheriff has paid it at his own risk; and if he has paid it wrongfully, is responsible to the person aggrieved.

The motion to set aside the judgment is not regularly before the Court, and therefore will not be regarded. The motion to reverse the decision of the Court below is refused.

Colcock, Johnson, G-antt and Richardson, JJ., concurred.

Huger, J., absent.  