
    CRANE v. FREESE.
    On Scire Facias against Garnishee in attachment.
    Money, whether in specie or bank notes, (which are treated, eiviMter, as money,) if in the defendant’s possession, or capable of being identified as his property, may be taken in execution, or under an attachment. But money in a sheriff’s hands, raised by him on execution, cannot be by him applied in payment of another execution in his hands against the person who is plaintiff in the first execution, and defendant in the second; for it is not his goods and chattels until paid over to him. Nor can such money in the sheriff’s hands be seized as money under an attachment in his hands, for the same reason. But the attachment may bo served thereupon as a right and credit of the defendant, in the sheriff’s hands. The sheriff should not deliver the money to the auditors, but bring it into Court, and inform the plaintiff'or auditors in attachment, that he has done so.
    This cause was submitted at November term 1837, on the following,
    STATE OF THE CASE.
    New Jersey Supreme Court.
    Jacob Crane vs. Abraham Freese
    V On Scire Facias under attachment.
    It is hereby agreed on behalf of the attorneys for the plaintiff' and defendant in this cause, to submit to this Court, the following state of the case, for adjudication, upon which, this cause is to be decided, and judgment on the scire facias, is to be entered accordingly; viz:
    A writ of attachment was issued out of this Court, of the term of May 1836, in favor of the above named Jacob Crane v. John W. Aymar and James D. Ay mar, as non-resident debtors, directed to the sheriff of the county of Warren in this state, the above named Abraham Freese, for the sum of one thousand five hundred and eleven dollars and eighty-four cents, upon affidavit filed in the sum of seven hundred and fifty-five dollars and ninety-two cents.
    The said sheriff returned said writ of-attachment) as directed by the statute, with an inventory of certain moneys and credits viz: that he had levied upon and attached the sum of three hundred and fifty dollars, in his hands, made by virtue of an execution also in his hands, in favor of the defendants, in the above stated writ of attachment, against one Henry D. Swayze, issued out of the Inferior Court of Common Pleas of said county of Warren, on the twenty-fifth day of August 1835, for the sum of one thousand two hundred and twenty dollars and ninety four cents; and further returned the balance to be made by virtue of said execution, upon said writ of attachment, as credits levied upon and attached, belonging to the defendants Ay mars, in the hands of said Swayze, as by copy of said return hereto annexed.
    In the term of February 1837, of the Supreme Court, judgment upon said attachment was had; and in the following term of May, a writ of scire facias, was issued out of this Court, in favor of said Jacob Crane, the plaintiff in said attachment, against the said Freese the sheriff, commanding him to shew cause at the September term, why judgment against him should not be had, and execution thereon, for the moneys so attached by him, and returned by him on said writ.
    William C. Morris esq. entered an appearance during said term, for said Freese, and agreed to submit to this Court, this statement of facts for the adjudication of the Court.
    November 10, 1837.
    
      (Signed)
    
    
      Th. D. James, plaintiff’s attorney, Wm. C. Morris, attorney for defendant.
    New Jersey Supreme Court.
    Jacob Crane vs. • John W. Aymar and James D. Aymar
    Warren.
    In attachment.
    (copy of sheriff’s return.)
    “ By virtue of the above stated writ, I have this tenth day of June 1836, attached in the presents, of Isaac Freese, a freeholder, all the goods and chattels, rights and credits, money and effects, lands and tenements of John W. Aymar and James D. Aymar, as follows:
    In my hands, collected by me as sheriff of Warren county, on ' an execution in favor of John W. Aymar and James D. Aymar, v. Henry D. Swayze, about three hundred and fifty dollars, valued at three hundred and fifty dollars; also, due from the said Henry D. Swayze on the said execution in my hands, about seven hundred and sixty-nine dollars, valued at five hundred dollars.”
    Appraised by us the day and year first above written.
    
      Abraham Freese, sheriff.
    
      Isaac Freese, appraiser.
   At this term, the opinion of the Court, was delivered by

IIornblower, C. J.

Money, whether in specie or in bank notes, (which are treated, civiliter, as money,) if in the possession of the defendant, or capable of being identified as his property, may be taken in execution, or under an attachment. It was so held by the Supreme Court of New York, in Handy v. Dobbin, 12 Johns, R. 220; and by the Supreme Court of the United States, in Turner v. Fendall, 1 Cranch, 117. Butin this latter case, the Court decided that if a sheriff has money in his hands, raised by him on execution, in favor of one man, he cannot take that money on an execution in favor of another person, against that man; for the money so raised by him, does not become the goods and chattels of the one for whom it was raised, until it has been paid over to him — and that by the command of the writ, the sheriff is in strickness, bound to bring the money into Court, there to be paid to the plaintiff, or be disposed of, as the Court shall direct.

In Ross v. Clarke, 1 Dall. R. 354, the ease was; that Ross had paid money into Court for Clarke, in a suit between them on scire facias in which Ross was defendant. Ross then sued out an attachment against Clarke, and laid it on the money in the hands of the Prothonotary; but the Court set aside the attachment, saying that the money was to be considered the same, as if it had been paid into the hands of the sheriff. Mr. Sergeant in his Treatise on Foreign Attachments, (fol. 74.) states it as a rule, that money levied in execution by the sheriff, upon a fieri facias, and in his hands, cannot be attached — and so it is laid down in 1. Comyn’s Dig. tit. attachment, letter D. which cites 1 Leon. 30, 264.

Notwithstanding these authorities, it may be insisted, that as our statute directs that the writ of attachment shall be executed» by attaching “ the moneys, as well as the rights and credits ” of the defendant; moneys, in the hands of a sheriff raised by him on execution in favor of the defendant in attachment, may be taken. But upon reflection, I am satisfied the proceeding is wrong upon principle — wrong, not only, because the money, is not the money of the defendant in attachment, until it has been paid over to him, by the sheriff, or in some other way definitively designated as his, or appropriated exclusively to his use; but wrong, because it would lead to embarrassment and confusion, to permit one process of the Court, to intercept moneys raised on another, while in the hands of the officer. But more than this, it might frequently lead to injustice. Chief Justice Marshall, in Turner v. Fendall, before cited, after noticing the case of Staple v. Bird,, {Barn, notes, 214,) in which the sheriff was compelled to pay the amount raised by him on execution, to an assignee of the judgment, although, he had levied on the money in his bands in virtue of another execution, and paid it oyer to the plaintiff therein, remarks, that in that case, the person in whose name, the judgment was rendered, was not entitled to the money received under it,” and that “ the very frequency of such a state of things, furnishes an argument of no inconsiderable weight against thé right to levy an execution on money so circumstanced. The equitable rights of persons whose names do not appear in the execution, ought to be preserved; and considerable injustice might result from imposing on the sheriff, the duty of deciding at his peril, on such rights.” I admit, that these observations of Chief Justice Marshall, were made in reference to a levy upon the money, by an execution : but the objection is equally strong when applied to a seizure under attachment. How often does it happen, that another judgment creditor, or some other person, has an equitable right to the money raised on execution, although their names do not appear in the process ? But if an attachment, at the suit of a stranger, is to take the money out of the hands of the sheriff, the moment it is raised, how can the Court protect the rights of other judgment creditors, or bona fide assignees of the judgment and execution on which the money is raised ? Such a course must frequently result in litigation or injustice; and the only way to avoid such conflicts, is to adopt the safe principle, that if the money is raised and in the hands of the sheriff, it is iu the custody of the law, and under the control of the Court.

So far therefore, as respects the seizure of the three hundred and sixty dollars, in the hands of the sheriff, as the money, of the defendant in attachment, the seizure was wrong, and the sheriff did right in not delivering over the money to the auditors:— Nevertheless, the attachment was well served on the rights and credits of the defendant in attachment, in the hands of the sheriff; and he having received this money, for the defendant in attachment, it was a right and credit in his hands to that amount. What then ought the sheriff to do under such circumstances ? His course is a plain one. He should obey the command of the writ of execution under which he raised the money. He should bring the money into Court, and give notice to the plaintiff in attachment, or to the auditors, that he has done so. The Court then can control the application of the funds, and protect their officer in the discharge of his duty. If after paying the money into Court, a sheriff should be sued by scire facias, as a garnishee, he may protect himself by shewing, that he has obeyed the process, under which he raised the money. I am therefore of opinion, that the scire facias in this case, ought to be dismissed, and that the sheriff bring the money into Court, to be paid over by the clerk, to the auditors in attachment, if no person interposes a claim to it, paramount to the title of the plaintiffs in execution. And as this case has been amicably submitted to the Court for its advisory opinion, let the scire facias be dismissed without costs on either side.

Scire facias dismissed without costs.

Cited in Lomerson v. Huffman, 1 Dutcher 632.  