
    
      James Cannady vs. Odum & Matheny. S. H. Condict & Co. vs. The same.
    
    Where there are conflicting claims to money in the sheriff’s hands, the court will not interfere by attachment, to compel him to pay it over to one of the claimants.
    
      Before Evans, J. at Barnwell, Spring Term, 1846.
    These were rules on the sheriff, requiring him to shew cause why he had not paid over money in his hands to the plaintiffs’ executions. The money arose from the sale of the individual property of Odum. There were executions enough against him to take it all. There were certain proceedings among the parties in equity, in which the question had been made, whether the individual creditors were not entitled to be paid out of the funds, in preference to the copartnership creditors 7 His Honor’s own judgment was, that at law the money in the sheriff’s hands should be paid, without reference to the copartnership, according to the priority of lien, but as the matter had been brought into controversy in the court of equity, he refused to interfere, and dismissed the rule.
    The plaintiffs appealed, and now renewed their motions to make the rules absolute.
    Bellinger, for the motion.
    
      Patterson, contra.
   Curia, per RichardsoN, J.

Attachment against the sheriff, presupposes a contempt of the court. It follows, of course, that before so summary and coercive a remedy is adopted, there must be an apparent contempt; and then, by modern practice, attachment may be used as a remedy, in order to enforce a claim of justice. This meaning and object of the attachment against sheriffs has been often laid down; as an instance, see the case of Dawkins vs. Pearson, 2 Bail. 619. In that case, the attachment which had been ordered was set aside, because there were different claimants for the money in the sheriff’s hands. The case before the court is of the same very common occurrence of conflicting claims ; in which the parties become impatient. But still they must be left to the common remedy, by action, or issue made up to determine their respective rights by jury, &e. This is our well established practice, in order to avoid the possible perversion of the imaginary Judge, who first punished the accused as a wholesome thing, and then more calmly heard and decided in a regular way upon his merits, as a thing due to justice. The decision on the circuit was, therefore, right, and the motion is dismissed.

O’Neall, Evans and Frost, JJ. concurred.

Waudlaw, J.

Dissenting. No injunction or other order from the court of equity has been served on the sheriff, but somebody has informally warned him not to pay, because the fund is in controversy, or may be put in controversy, in the court of equity.

The rights of the plaintiffs have been established by the judgment of this court. Under that judgment the money has been collected, and I think the court should now respect and enforce its judgment, by requiring its officer to do his duty. If a serious conflict of legal rights makes the proper course of the sheriff uncertain — if such difficulty be produced by an equity such as this court notices and can adjudicate — a decision will not generally be made upon rule, for such decision, without an issue made between the parties conflicting, would not protect the sheriff, or conclude the parties. But of a mere technical equity, such as the court of equity only can judge of, this court can take no notice. It may be presented before the proper tribunal, and ample power there exists to pursue the matter in controversy pending the litigation. That power should be invoked in regular form. To accept as an excuse for the sheriff’s delay in payment, the allegation of some indescribable equity, or some apprehended struggle going on elsewhere,, or expected, is to open the door to great looseness, and may lead to infinite abuse.

These reasons, hastily expressed, shew the grounds of my dissent in these cases, and also in the case of Brown vs. Furze, decided this term. 
      
      
         Vide next case.
     