
    
      C. M. Furman, for Howard & Garmany, vs. S. Christie, late Sheriff.
    
    Where a sheriff has two fi. fas. in his office of different dates, and sells property under the junior, he is bound to apply the proceeds to the senior fi.fa. — and to an action against the sheriff by the owner of the senior fi. fa. for money thus raised, it is no defence, that in the intermediate time between the lodgment of the plaintiff’s and the junior fi. fa., the defendant in execution had sold property which the plaintiff declined permitting the sheriff to levy and sell under his' fi. fa.
    
    
      Before Frost, J. at Edgefield, July, extra Term, 1845.
    This was an action of assumpsit, for money had and received. In October, 1837, the plaintiff recovered a judgment against one Sullivan for about six hundred and fifty dollars, and in October, 1840, one Hutchinson also recovered a judgment against the same defendant for ten thous- and dollars. Executions on these judgments were duly lodged with the sheriff. In January, 1842, the defendant, as sheriff, sold, for about nine thousand dollars, certain' real estate of Sullivan, and applied the proceeds to the judgment of Hutchinson. It appeared that in the summer of 1840, before the judgment of Hutchinson was obtained, the defendant in execution, Sullivan, sold three slaves, Mary and her two children, to one Holmes, which slaves were, of course, bound by the lien of Furman’s execution. In April, 1842, these slaves, being then in the possession of Howard Gar many, who claimed them, were levied on by the defendant under Furman’s execution. In August, 1842, Furman’s judgment was assigned to Howard & Garmany, and some time afterwards, the attorney of the assignees indorsed on this execution, an order to the sheriff to stay proceedings. This action was brought to recover of the proceeds of the sale of Sullivan’s land, the amount of the plaintiff’s execution.
    Under the instructions of his Honor, the presiding Judge, the jury found for the plaintiff. The defendant appealed, and now moved this court for a new trial, on the following grounds:
    1. Because his Honor erred in ruling and charging the jury, that the law of the case required them to find a verdict for the plaintiff for the amount of his execution; that the defence of the defendant was not available in a court of law; and that the execution of Furman vs. /Sullivan was satisfied and ineffectual for the purpose of levy, by sales made by the defendant as sheriff, under a junior execution, for an amount more than sufficient to pay all that senior execution.
    2. Because the order of the plaintiff, requiring the defendant and sheriff not to sell the negroes levied on under his execution, was a bar and discharge of the plaintiff’s cause of action, if any he ever had.
    
      Bauskett, for the motion,
    cited Watson on Sheriffs, 176, 203 ; 2 Bail. 495.
    Wardlaw, contra,
    cited 2 Bail. 412 ; 2 McM. 150 ; 1 Bail. 140.
   Curia, per

Wardlaw, J.

The defendant contends that the execution of the plaintiff is yet unsatisfied, and that the defendant had an equity to use this execution, which the plaintiff or his assignees have obstructed — whereby the plaintiff’s right ex equo et bono to have the money now claimed has been defeated.

For the plaintiff it is argued that there are other equities— such as that of the person who is said to have purchased the negroes, Mary and her children, during the intermediate time between the lodgment of the first execution and the lodgment of the second, which are superior to any equity the defendant can urge.

But it is unnecessary to enter into these considerations. It is certain that the sheriff had in his hands both executions against Sullivan — that he has paid money raised under one of them, to the junior, leaving the senior unpaid ; that this was done without the consent of the plaintiff, the senior execution creditor; and that of his own head, and for his own relief, without directions from the plaintiff, the sheriff subsequently proceeded to levy upon the negroes under the senior execution.

Now, it may be, that raising money applicable to an execution, is not of itself ipso facto a satisfaction of |he execution, so as to render the plaintiff therein a trespasser for a subsequent levy; it may be even conceded, contrary to the case of Davis vs. Barkley, 1 Bail. 140, that a senior execution creditor, without the consent of the debtor, may waive his right to money raised, and direct its application to a junior execution. But still the senior execution creditor is entitled to the money if he claim it, and have not waived his right; and no waiver of his right to the money, can result from his refusal to permit his execution to be used in disturbance of the claims of third persons, and against the will of the debtor, when he regards the execution as already having obtained the means of satisfaction in the hands of the officer whose duty it was to enforce it.

Whatever view, then, may be taken of the questions presented by the defendant, it appears that the plaintiff is entitled to retain his verdict.

The motion is therefore dismissed.

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