Brewster v. Van Ness

Headnote

A sheriff is bound to pay over - to the plaintiff, without any demand or request for that purpose, money levied or* execution, or he will be lia'» ble to an attachment. It; is not sufficient to return that he has the money in his hands, subject to the plain* tiff’s order.

R. SEDGWICK moved for an attachment against the defendant, late sheriff of Saratoga, for not paying over to the plaintiff, money levied and received by him on a tesl.ji. fa. It appeared that the sheriff had made a return to the execution, that on the 25th of October, 1819, he levied 146 dollars and 48 cents, with interest from the 20th of November, 1818, and had the money in his hands, subject to the plaintiff’s order; and that the money had not been paid over to the plaintiff. The counsel for the defendant objected, that the plaintiff ought to have applied to the sheriff for the money before he moved for an attachment; that the return made by the sheriff was a sufficient compliance with the exigency of the writ.