This sum was condemned in the Superior Court as liable to the plaintiff's attachment, and from that judgment McBryde, the garnishee, appealed to this Court. The case was submitted without argument. The question presented on this record is whether the money in the hands of the sheriff, forming an excess beyond the amount of the execution, is liable to the plaintiff's attachment. We are of opinion that it is liable to be attached, because it was held by the sheriff, not in his official capacity, but in his private character. He was directed by the writ of execution to raise the amount expressed in it, together with costs, out of N. T. Orr's property, and to return that sum to court for the benefit of the plaintiff in the suit. It has been ruled that money in a sheriff's hands, raised by him in obedience to a writ, is not attachable, because it would interfere with the rights of others, embarrass and sometimes render ineffectual the process of the court, and produce endless litigation. But a surplus remaining in the sheriff's hands is the property of the defendant in the suit, who might immediately have demanded and enforced the payment of it. Consequently, any of his creditors, in other respects entitled to the benefit of the attachment law, may levy upon it in the hands of the sheriff. The sum in contest is, therefore, condemned in the hands of McBryde to satisfy the (237) plaintiff's judgment.
NOTE. — See Alston v. Clay, 3 N.C. 71, and the note thereto.
Cited: Coffield v. Collins, 26 N.C. 491; Gaither v. Ballew, 49 N.C. 492. *Page 183