CHENAULT'S ADMINISTRATORS vs. WALKER, 22 Ala. 275

PHELAN, J. When this case was here before, (15 Ala. 605,) it was decided, that the facts of the case would not authorize an action under the statute for four fold the amount of the fees which had been charged and taken by the sheriff. See that decision. We can treat it now only as an ordinary action of debt by Walker against Chenault, for money had and received. Such being its character, the right to revive against Chenault’s representatives, admits of no controversy.

The main question in the case may be put thus: Can a defendant, whose property has been sold under execution, and when the sheriff appropriates to himself, out of the money collected, fees to a greater amount than he is allowed by law, recover the excess so taken over and above the lawful fees, in an action for money had and received against the sheriff, when the money so collected is not more than sufficient to satisfy debt and lawful costs ? It is necessary here to ascertain to whom money in a sheriff’s hands, which has been collected under execution, properly belongs.

Is it the money of the plaintiff, or of the defendant ? or does it remain in an uncertain state as to its true owner, which uncertainty is to be determined .by some act of the sheriff, as to the manner in which he will appropriate it? The money is the money of the plaintiff Many well settled principles lead directly to this conclusion. Even before.a sale or the collection of money, a levy and seizure'.by the sheriff of property of the defendant sufficient to satisfy the judgment, discharges the defendant. Campbell v. Spence, 4 Ala. 543.

A defendant is not even bound to look after his property, after it has been taken by the sheriff in execution. After that, the sheriff becomes the agent of the plaintiff, and will be responsible to him alone for its safe keeping. Settle this principle, and you settle the question. If tbe sheriff is tbe agent of tbe plaintiff for tbe safe keeping of tbe property, and tbe law devolves upon birn tbe duty to sell it, be of course becomes bis agent to account to bim for tbe proceeds of tbe property when sold. See Moore v. Barclay, 18 Ala. 672; Hughson v. Burr, 5 Strobbart’s Eq. Rep. 147.

Tbe money is sometimes said in sucb case to be iff-the custody of tbe law, but always as money of tbe plaintiff, or of some one standing in bis shoes. But it may be said tbe sheriff has a lien for bis fees, and is-authorized to retain them, when be pays over money to the plaintiff; and that if be retains more than is lawful, and tbe defendant has property, tbe plaintiff, rather than trouble himself in a contest with the sheriff about bis fees, will only sue out another execution, when tbe money, deducting the fees claimed and retained by tbe sheriff proves insufficient to satisfy bis judgment.

But be cannot lawfully do this; tbe defendant, if be be vigilant about bis rights, as every man is bound to be, will not suffer it. If the' sheriff proceeds to levy again, after be has sold property enough to pay tbe plaintiff bis judgment, together with all lawful eosts and charges, be can be prevented by the defendant by petition for a supersedeas. Thus tbe plaintiff can be compelled to adjust with tbe sheriff, tbe question of tbe lawfulness of fees claimed by bim; and this shows, that tbe duty to do so devolves on tbe plaintiff, by the very nature of tbe relation existing between them.

Hence, it appears, that when tbe amount collected will simply cover debt and costs, or falls under that amount, and tbe sheriff retains more costs than be is allowed by law, tbe money he so appropriates is tbe money of tbe plaintiff, and he must look after it, and tbe extent of tbe sheriff’s lien upon tbe fund must be settled, in case of a controversy, between bim and tbe plaintiff. If, in tbe first instance, tbe sheriff sells tbe property of tbe defendant for more than will pay tbe debt and costs, in that case, it is true, tbe defendant is required to look after tbe surplus.

But tbe right of tbe defendant to money in tbe sheriff’s bands arising from a sale of bis property never accrues, unless there is a surplus over and above tbe amount sufficient to pay debt and lawful costs. That was not tbe state of facts bere. The money collected did not amount to enough to pay the debt itself, by nearly a thousand dollars.

It seems to have been supposed on the part of plaintiff below, that after the $2132 Tyo was received by the sheriff from the sale of his slaves, and after the sheriff claimed and appropriated $550 of this sum for keeping them, and even after this suit was instituted, he (the plaintiff,) might settle with or pay Chandler’s executors the amount they claimed to be due, allowing the charge of $550, so appropriated by the plaintiff, to be deducted as a proper charge or lien upon the funds he had collected, and then recover back from the sheriff in this action the amount of that charge, or so much of it as was not lawful.

Such a conclusion will be found to conflict with two sound and well established rules of law. In the first place, it conflicts with the rule which forbids the legal assignment of a mere chose in action. The executors of Chandler could not transfer to Walker the right to sue Chenault in his own name, for money had and received by Chenault to their use, if the transfer were made in the most direct and formal manner.

But here there is no formal transfer; and it is only argued that a payment by Walker to them of a certain amount claimed by them to be due on their judgment, not counting the money unlawfully retained by Chenault as fees, as any payment to them, will enable Walker to go upon Chenault for the money so unlawfully retained by him, by suit in his own name. This is only an indirect attempt to get at that which cannot be done directly, the transfer or assignment of their right to sue. Br. B’k. v.

Sydnor, 7 Ala. 308. ' In the second place, it conflicts with the rule that a man cannot recover on a cause of action which accrues after suit brought. The cause of action, if any, which accrued to Walker from this settlement with Chandler’s representatives, accrued at the date of that settlement, which is shown by the record to have taken place in 1850, several years after this suit was instituted.

It appears, that Chenault became the administrator cle bonis non of Chandler’s estate before the suit was brought, and so united in himself for a time the characters of plaintiff1 in that judgment against Walker and tbe sheriff, who retained in his hands the illegal fees. That will not affect the principles we have been considering.

No settlement is shown t,o have been made between him and Walker, while he was administrator de bonis non; and the argument in support of Walker’s right to sue, even unsound as it is, is all based upon the idea of a settlement and payment of the whole demand, illegal fees included, by Walker to Chandler’s representatives.

Had he settled with Chenault at the time the latter was administrator de bonis non, and paid these fees the second time, his right to recover them back would have been forbid upon another principle still, viz: the voluntary payment of money to another with a knowledge of all the facts of the case. 11 Ala. 695. The charge of the court says: “ If there was a balance due to Chandler’s executors by Walker, after crediting the amount of the sales of the property levied on by Chenault, at the commencement of this suit, then plaintiff cannot recover.” This was a correct proposition.

But the court adds: “ But if the jury believe that plaintiff (Walker) had paid off and discharged the balance due on the judgment before the commencement of this suit, the plaintiff was entitled to recover.” The latter clause of this charge does not correspond, it will be readily seen, with the views we have expressed, bearing-in mind the facts of the case, that the money collected in the first instance by the sheriff under the levy and sale, was not sufficient to satisfy even the debt, without the costs.

In such a case, the money collected is the money of the plaintiff in execution, subject to the sheriff’s lien for his lawful fees and charges; and the duty devolves on the plaintiff to see that no more of it is retained or appropriated by the sheriff than he is lawfully entitled to.

And if the defendant does not look to his interests to see that this is done, but chooses to go on and settle with the plaintiff, without compelling him to settle with the sheriff, he cannot thereby acquire a right to sue the sheriff in his own name for the illegal fees, as money had and received to his use, in virtue of the payment made by him to the plaintiff in the judgment, as this would be in effect to authorize the legal assignment of a chose in action.

As this point must be decisive of the case, now and hereafter, we deem it unnecessary to notice the charge requested by the defendant below, which the court refused. Let the judgment be reversed, and the cause remanded. Chiltoít, C. J., did not sit in this cause, having been of counsel before his election to the bench.