
    
      Lewis Stokes vs. Joseph Cane & John Manual.
    
    A judgment confessed before the Clerk under the Act of'1821, has lien from its date upon the lands of the defendant; and it does not lose its lien because not read out in Court by the Clerk at the nest ensuing term. ' .
    A sheriff applying, by mistake, the proceeds of land sold to a junior judgment, may claim tho amount of the plaintiff to whom he had paid it; and the plaintiff having ropaid the money to the sheriff, has his-judgment against the defendant unsatisfied.
    
      Before Gantt, J. at Barnwell, Spring Term, 1832.
    
      Sci. fa. to revive judgment on sum. pro.
    On October 31, 1827, Cane, one of the defendants, confessed judgment before the Clerk, under the Act of 1821, (6 Stat. 160,) to Goode & Wooten for $44 37, besides interest and costs; and the plaintiff, Stokes, afterwards, at November Term, 1827, recovered judgment on sum. pro. against the' defendants for $80. Stokes’s ji?. fa. was lodged with the sheriff November 23, 1827, and Goode & Wooten’s January 7, 1828.
    In January. 1828, the sheriff sold Cane’s land, and applied the proceeds, $43, to Stokes’s execution. Manual paid the balance' in full to the sheriff who entered satisfaction in his book. "
    The sheriff paid the proceeds of the sale to Stokes, who afterwards repaid the amount to the sheriff, and it was applied to the judgment of Goode & Wooten.
    This sci. fa. was brought to revive Stokes’s judgment to the extent of $43. ■ It was admitted, that the confession had never been read in Court as directed by the Act of 1821.
    His Honor decreed for the plaintiff, and the defendants appealed. ^ -
    
      Bonsáll, for appellants.
    
      Patterson, contra. -
   The opinion of the Court was delivered by

O’Neall, J.

The Act of 1821, under which the confession of judgment by Cane to Wooten & Goode was taken, provides as follows, viz.: “ which confession, from the date thereof, shall create a lien upon the lands and tenements of such debtor: and as against subsequent purchasers and judgment creditors shall boar date from the day of signing as aforesaid.” The Act then goes on to provide that on the first day of the next ensuing term, the presiding Judge shall require the Clerk to read over the confessions by him taken between- the terms. But there is no provision in default of the confession being read at the first term, declaring it to be void, or postponing it to other judgments. It follows, therefore, that the positive enactment which gives it a lien from its date, must have effect.

The judgment of Wooten & Goode being the eldest one, was entitled to the proceeds of the sale of the defendant Cane’s land; and notwithstanding the sheriff had paid it over to Lewis Stokes, it is clear that he could have recovered it back as so much money paid by mistake. The plaintiff Stokes having legally refunded the money paid to him by the sheriff^ is entitled to have his execution for the balance of his debt, which thereby remains unpaid.

The decree of the Circuit Judge was correct, and the motion to reverse it is dismissed.

Johnson and Harper, JJ., concurred.

Motion dismissed.  