Alston v. Clay, 3 N.C. 171, 2 Hayw. 171 (1802)

April 1802 · North Carolina Superior Court

3 N.C. 171, 2 Hayw. 171

Alston & Co. vs. Clay.

The PXIS plaintiff had attached money of the defendant’s in the hands of the clerk of the court, which cam® into his hands upon the return of an execution, in which the defendant in this action was plaintiff. Upon that point the canos was removed to this court, and now came on to be argued.

H-iyvJOcd for the plaintiff.

I know not of any decisions in this State upon the subject. We must argue upon the reason of the thing, and by analogy to other cases. I have heard it said that money in the hands of a sheriff, by execution, for the defendant, cannot be attached because he has a precept from the court coni” manding him to have it before them. But in other cases the money miy be stopped io his hands by order of court 5 for suppose A has recovered against B, and. takes execution, then B recovers a less sum against A ", the court will direct that he levy of A only the difference between the sura to A, and that due from birr,:. And this the sheriff will be obliged to observe, although, the execution commands him to return the whole into the office 5 why then may not a Judge by his attachment order him to retain the money, or return it into court subject to the attachment ? There is no good reason why he may not. The case put io stronger than that now before the court, for here is no order or precept commanding the clerk to pay it even to the plaintiff. — » There are, cases where the court will direct the money in the hands of the clerk shall be paid, not to the plaintiff, but to some other person, as the assignee for instance, if the plaintiff shall attempt to receive it to his prejudice ;. or if the plaintiff be entitled to it and the defendant has a judgment against him to the same amount, the court will order it to be paid to the defendant ia satisfaction of his demand, instead of levying it of the plaintiff by execution, if all this may be done, why may not the money be stopped in the hands of the clerk, to be liable to the demand of a third person ? Mr. Dallas has reported a case where money sued for racy be attached in the hands of the defendant, then after the recovery against the defendant, that money, if levied by the she-irifí, shall be subject to. the demand of the second plaintiff, notwithstanding the precept to the sheriff. Why not also where the attachment is posterior to the recovery? It is alieo’ged that it. would be inconvenient, to arrest money in the hands of the clerk, for then he would be compelhbíe ío appear before an}* court to which the attachment should be returnable. This indeed would be some inconvenience to him, but be taken the office subject to all its disadvantages and ought not to complain oí them. Let us. view the inconveniences resulting to the public, if this cannot be done 5 they are of vastly greater magnitude than, those suggested on the other side. Let us suppose a man track a in this state to a Targe amount; he owes debts to. the amount of Sen thousand pounds 5 there are debts due to bun to the same amount; h,a removes beyond sea, institutes actipn.s hcaa., and gets executions for the money, which the sheriff levies ; should the rule prevail which is row contended for, every creditor must lose his debt, though thei.e is enough to.pay all; the money cmnop be stopped 'for the purposes of justice, though it be within th.e immediate power of the court. Why should the act cf Assembly be so construed h I1 he words are large enough, to embrace every act of garnishees having in their hands debts, effects., estates, &e. of the defendant. It makes no such-exceptions'as that now aimed at; the legislature, had this case been stated, would not have made it. They have used words extensive e-' nough to take in. monies in the bando of a cleik, as well as monies in the hands of any other person ; and surely the court ought, not to make an exception, which when made, lets in the evifs and injustice just trow pointed out.

IVir. Burton replied,

and his argument is contained ip Judge, Taylor’s opinion'.

Taylor, Judge.

It has been several times decided, that xnonieC; in the hands ot 'it sheriff cannot be attached. Those decisions are analogous to the present,- They were made* on the ground’ that the judgments oí courts of justice should be effectual. 'Were’ the monies levied in pursuance of them attachable, they might b'e' defeated.' Attachments would be levied on'such monies when perhaps the plaintiffs were far distant,1 and unable from that circumstance to resist the claims made against them ; no bran would be assured of the effect of his judgment.

.Judgmentfor the defendant.