
    
      J. Kirkpatrick & Co. vs. Nathaniel Ford and David Aiken.
    
    1. The rule to compel the payment of money collected by the Sheriff to an execution, lies at the instance of the plaintiff in execution, or his representative.
    2. Where money was deposited with the Sheriff, to be applied in payment of executions against a certain defendant, on his compliance with certain conditions, the Sheriff, supposing the defendant would comply with them, paid the money to the plaintiffs’ attorney, in the case entitled to it, on a promise to refund in case the conditions were not complied with, which not being done, the money was refunded and restored to the person who had made the deposit. Under these circumstances, the deposit so made with the Sheriff, did not operate as a satisfaction pro tanto.
    
    3. Where the amount of several executions against a defendant were paid to the sheriff by a third person, upon the understanding that they were to be assigned to him, which was done by the plaintiff’s attornies, it was held that, although the assignments did not have the effect of barring the plaintiffs from setting up a claim to the judgments, as an attorney cannot assign a judgment, yet if they did not set up any claim, creditors could not, and that the payments so made were no satisfaction of the executions.
    
      Before O’Neall, J. at Fairfield, Fall Term., 1843.
    This was a rule against the Sheriff, whose return sets out a variety of facts.
    
      Amongst others, that there were in his office a great many executions against Nathaniel Ford, elder than that of the the plaintiffs’; to which the proceeds of his property (all of which had been sold under Ji.fa.) had been applied.
    He stated that Mr. Hall had deposited with him $2000, to be applied to the satisfaction of executions against Ford, on his compliance with certain conditions. That supposing Ford would comply with them, he had paid the same over to the plaintiffs’ attorney in the case, entitled to the same, on his promise to refund, if Ford did not comply. Ford failed to comply with the conditions annexed by Hall to his deposit. Hall claimed from him, the Sheriff, the money. He compelled the plaintiff’s attorney to refund and restored the money to Hall.
    He also stated that a large payment, perhaps $1541 44, had been made to David Aiken, by N. Ford ; and which he, Aiken, promised should be credited on one of the elder executions, (perhaps McMahan’s.) For this sum,’ Aiken had been sued by Col. Peay, assignee of that judgment; and, therefore, no application had been made.
    It appeared that Col. Nicholas Peay, paid into the Sheriff’s office, the amount of several of the older executions, and at the time of making such payment, caused the plaintiffs’ attorney, in each case, to assign the executions, to him. This appeared as part of the evidence of the payment made by him ; being included in and part of each receipt, indorsed on the executions respectively.
    The presiding Judge thought, and so ruled, that the deposit made by Hall, was no payment in satisfaction of the executions, until the conditions were complied with.
    As to the payment made to Aiken, his Honor thought he had nothing to do with it. Aiken had no right to receive the money in satisfaction of any of the executions. It was, however, enough to discharge the rule, that it was the subject of a pending action at law.
    As to the executions assigned to Col. Peay, it was ruled, that they were not satisfied by a payment made by a third person, when, at the time of making such payment, he shewed that his purpose was not to satisfy, but to acquire a right to the executions as subsisting liens.
    
      The rule was discharged.
    The defendants moved the Court of Appeals to make the rule absolute in this case, on the following grounds.
    1. Because the payments made by Col. Peay and Mr. Hall, should be considered pro tanto, as satisfaction of the executions in the cases in which the payments were made.
    2. Because the Sheriff received the monies in his official capacity, and had no right to make any conditions or stipulations upon the receipt of it.
    3. Because the evidence of satisfaction arising from the official books of the Sheriff, could not be repelled by other testimony.
    4. Because the executions in the cases in which the payments were made are satisfied.
    Boyce, for the motion.
    
      JBlack and DeiS'aussure, contra.
   Curia, per

O’Neall, J.

This case, considered in any point of view, cannot give the defendant, Aiken, the advantage which he seeks, in moving this rule. If the question had been raised, I have no doubt he had no right to the rule at all. All he could have done, would have been, to move that the plaintiffs, in the senior executions, should have been put under rules to shew cause why satisfaction should not be entered.

The rule to compel the payment of money collected by the Sheriff to an execution, lies at the instance of the plaintiff in execution, or his representative.

But as the facts have been spread before us, as they were before the Circuit Court, the decision will not be placed on the preliminary objections.

The case of Carson vs. Richardson, 3 McC. 528, seems to us to cover all the grounds which have been taken.

It is plain from the report, and the Sheriff’s return, that the money of Dr. Hall was deposited with the Sheriff, to be applied to the payment of the executions against Ford, on a condition which was not complied with; and that the money was refunded to Hall. Under such circumstances, it would make the law a perfect snare, if this should operate as a satisfaction pro tanto. So too, as to the payments made by Peay. They were made upon the understanding, that the executions should be assigned to him, and the at-torn ¡es have accordingly assigned.

It is true, an attorney cannot assign a judgment, and that, therefore, the assignments here, could not have the effect to bar the plaintiffs from claiming the judgments; but if they think proper not to set up any claim, I do not perceive how creditors can.

There is no satisfaction, in fact, of the executions, and there is no principle of law or equity, which will imply satisfaction from what has been done.

The motion is dismissed.

Richardson, Evans, Butler, and Wardlaw, JJ. concurred.  