delivered the opinion of the Court:
The question presented by this record is, is a sheriff, under the attachment laws of this State, liable to a garnishee process, for moneys in his hands collected as sheriff?
The merits of the question can be fully ascertained by the instructions asked on both, sides, and the disposal of them by the court.
The plaintiff asked the court to give the following instructions:
If the jury believe, from the evidence in this case, that the writ of attachment issued in this case was duly served on John Steinagel, as garnishee herein, before the said Richard A. Unger assigned and delivered to the said Charles S. Lips the certifícate of purchase/ mentioned in the answer of said Steinagel, filed herein, they will find a verdict for the plaintiff.
If the jury believe, from the evidence in this case, that the said Richard A. Unger assigned and delivered to the said Charles S. Lips the certificate of purchase mentioned in the answer of said Steinagel, garnishee herein, before the writ of attachment issued in this case was served on the said John Steinagel, as such garnishee, yet, if they also believe, from said evidence, that the said Unger so assigned said certificate of purchase to said Lips, without any good or valuable consideration whatever therefor, they will in that case find a verdict for the plaintiff.
That even if the jury believe, from the evidence in this case, that the said Robert Barth paid to the said John Steinagel, then sheriff of Adams county, at the time of said payment, the moneys in question in this case as judgment debtor to redeem from the sale mentioned in the said Steinagel’s answer herein, and within twelve months from the time of said sale, under the laws of Illinois, still such payment to said Steinagel, while sheriff, as aforesaid, would'not prevent the said moneys or the avails, thereof from being legally liable to be garnisheed in the hands of said Steinagel by the plaintiff or any attaching creditor of said Unger, provided the said moneys or the avails thereof in the hands of the said Steinagel belonged to said Unger at the time-the said Steinagel was summoned as a garnishee in this case, and if the jury believe, from the evidence in this case, that at the time the said Steinagel was summoned as a garnishee in this case, he had in his hands the said money or the avails thereof for the said Unger, and that the same or the avails thereof belonged to" said Unger, they will find a verdict for the plaintiff.
The defendant asked the following:
At-the instance of the garnishee, John Steinagel, the court instructs the jury that, under the laws of this State, money paid to and received by a sheriff, in his official capacity as such sheriff, for the purpose of redeeming land from sale on execution, is not liable, while in the hands of such sheriff, to any process of garnishment, and if the jury believe, from the evidence in this case, that the money, in respect to which the garnishee, John Steinagel, has been garnisheed in this suit, was paid said Steinagel, as sheriff of Adams county, Illinois, by one Robert Barth, for the purpose of redeeming a tract of land in said county from a sale thereof, as the property of said Barth, made by a former sheriff of said county, on an execution against said Barth and one Anglerodt, and that said Steinagel, at the time of receiving said money, was sheriff of said Adams county, and received said redemption money as redemption money for the redeeming of said tract of land from the said sale on execution, they will find the issue for the garnishee.
The instructions asked by the plaintiff were refused and that asked by the defendant was given, and on this ruling the errors are assigned.
The money in the hands of the sheriff, was money paid him on the redemption of certain lands which he had sold on an execution.
This court has decided, in Reddick v. Smith, 3 Scam. 451, that money in the hands of a sheriff, collected on execution, cannot be attached as the property of the plaintiff in the execution, because the money is in the custody of the law, and subject to the control of the court from which the execution issues; and because, to allow it to be done, might bring different tribunals into collision and cause .much embarrassment to officers concerned in the execution of final process. The same doctrine is held in the case of Wilder v. Bailey, 3 Mass. 289; in Dawson v. Holcomb, 1 Ohio, 275; and Ross v. Clark, 1 Dallas, 354; Marvin v. Hawley, 9 Mo. 382. The specific money in the hands of the sheriff is held, in these cases, not to be the property of the plaintiff in the execution until paid over to him.
In Pierce v. Carlton, 12 Ill. 358, this court recognized the doctrine of these cases, but held, that a surplus remaining in the hands of the sheriff, after satisfying the plaintiff’s execution, was liable to the garnishee process. And the reason given is, when the amount due on the judgment is returned into court, or paid over to the plaintiff, the execution has accomplished its office, and, if there is a surplus, it is the duty of the officer to pay it over to the defendant. It is not strictly in the custody of the law, but the officers hold it as so much money had and received for the use of the defendant. The same doctrine was held in the case of Jaquet's Administrators v. Palmer, 2 Harring. (Del,), 144; King v. Moore, 6 Ala. 160; Tucker v. Atkinson, 1 Humph. (Tenn.), 300; Watson v. Todd, 5 Mass. 271; Crane v. Freese, 1 Harris. (N. J.), 305; Hulbert v. Hicks, 17 Vt. 193; Woodbridge v. Morse, 5 M. H. 519; Fieldhouse v. Craft, 4 East, 510; Clymer v. Willis, 3 Cal. 363; Fish v. Milln, 5 Bibb, 311; Dubois v. Dubois, 6 Cow. 494.
It is contended by the plaintiff in error, that this case "of Pierce v. Carlton is authority for the instructions asked for by him, and supports the views he has addressed to the court, and this, because the sheriff is not required to bring the redemption money into court, and that it is in no sense in the custody of the law, nor has the court any control over it in his hands, nor can different courts be brought into collision in respect to it, nor, if garnisheed, can any delay or inconvenience be thereby created in the settlement by an officer under final process. It is. said the sole duty of the officer is to pay the'money over to the purchaser.
In this argument the fact seems to be lost sight of that the sheriff receives this money as an officer of the law, and is amenable to the law to account for it. His authority to receive it is derived directly from the statute.- He is the mere agent of the law discharging a duty and a trust which arise alone from. the statute, and not from any contract with or trust reposed by the judgment debtor or any of the parties to the judgment or sale. As to this money, the sheriff is amenable to the summary jurisdiction of the court, and on a proper case made there, "may be required to produce the money in court. His duty in regard to the receipt of money on the redemption of land sold by him on an execution arises out of the execution, apd until he has discharged it in all its parts, and in its whole extent, he must be held to be under the control of the court. It is not like the case where he has collected of a defendant more money than the execution demanded. There,.in such case, as was held in Pierce v. Carlton, the money belonged to the defendant, which the sheriff was bound to pay over to him immediately. Here, the money is subject to the final disposition of the court out of which the execution issued. ,,
We think the true rule in such cases is, that where the sheriff derives his authority from the law, he must exercise it according to the rules of law. So situated, public policy requires he should not be charged on garnishee process in respect of any money or property held by him in virtue of that authority; as such, it is in the custody of the law. Drake on Attach. 506, ch. 21, and cases cited.
From the authorities we deduce the principle, that whenever an official holds money merely as the agent of the law, he cannot be subject to the process; but if anything arises to change this relation from an official obligation to a personal liability, then he would become amenable to this process.
In every view we have been able to take of this case, we can see nothing which should render the sheriff amenable to this process. The money was in the custody of the law, and no demand of it was ever made by the party entitled. The sheriff was but in the discharge of his duty in holding it. The Circuit Court properly instructed the jury oh all the points made, and its judgment must be affirmed.
Judgment affirmed.