
    Hearn vs. Crutcher and Bullard.
    When a debtor conveys property to a creditor who accepts the trust and sells the property for the purposes of the trust, the overplus of money in his hands may be attached.
    This was a writ of error prosecuted from the Wilson circuit court. Crutcher, one of the defendants in error, prosecuted his attachment against John Stone, for $204. The attachment issued, appears to have no seal, but was' levied by the officer upon several articles of property, all of which had been conveyed by Stone to John Hearn in trust for creditors. A garnishment issued to Hearn, and was- returned without any endorsement thereon of service. At the June term of the county court of Wilson, Stone appeared and confessed a judgment for $214. Bullard, the other defendant in error, procured an attachment to issue for $158 75. The affidavit upon'which the attachment issued, was not signed by Bullard, and states that Stone is debtor to Bullard $150 -75. The justice of-the peace who issued the attachment, became the security for costs. This attachment was also levied upon property covered by the deed of trust • to Hearn. There was also a garnishment served upon Hearn in this case, which garnishment was signed by a justice of the peace' and not by the officer levying the attachment, nor does it appear upon the same or upon the attachment, that it was served upon Hearn, further than its return among the papers inclines. Stone also appeared at the return term and confessed a judgment to Bullard for $94 30 1-2. No declarations were ever filed in these cases. After the rise of the court, the plaintiffs in both attachments issued their executions.upon the judgments taken against Stone by confession, which were returned no property to be found. At the June term of the same court, Hearn, the garnishee, came into court and rendered his statement in these words:
    “On the 29th of March, 1831, when I was summoned as garnishee in this case, I held notes and due bills upon John Stone to the amount of $1050, with a credit of $50 upon one of the due bills. There were five due bills of different dates and different sums, amounting to the above sum of $1050, with said credit on one, without including interest. One note for $200, due the 11th of July, 1829; one for $200 due the 20th of July, 1829; one for $150 due the 27th of July, 1829, with a credit of $50 the 30th of December, 1829; one for the sum of $300 due the 13th of November, 1830; and the other for $200 due the 15th of March, 1831. At that time I had fees of office, which I had collected as sheriff of Wilson county, upon executions and otherwise, from time to time, which was due and owing to the said John Stone, as the clerk of the Wilson county court. I had no knowledge at the time I was garnisheed, of the amount of the fees in my hands due said John Stone, as clerk, not having had any general settlement since sometime in 1S29, previous to the date of the first due bill. Since that time, I commenced a settlement with John Stone, and have not got through it; but have proceeded far enough-in the settlement to be satisfied there is enough of fees in my hands, and was enough on the said 29th of March, 1831, to discharge the above due bills; and I now believe, that I will, upon settlement, fall some in debt to said John Stone, after said notes are discharged; the amount, however, I am not able to state, until the settlement is finally closed. He further states, on the 28th of March, 1831, John Stone inclosed to him a deed of trust, conveying certain property to secure the payment of the due bills he had given to him, and certain other debts therein mentioned, which is referred to and made a part of this statement. There was also enclosed to him by said John Stone, an order drawn by said John Stone upon A. H. Harriss, in his favor, for the fees he had, or might thereafter get, owing him; also an order on Thomas Brevard, for the sum the said Brevard might owe said Stone. Also, upon Jehu M’Adow, for the fees he might have, or afterwards have owing to him. Also, an order upon Thomas E. Bonner, for what said Bonnet-owed him. Also, an order upon Major A. M’Clain, for the fees he had, or might thereafter have owing to him. Also, an order upon Thomas Conyers, for six dollars, which was afterwards accepted by said Conyers, on the 9th of April, 1831, for four dollars. All the other orders were accepted by the persons on whom they were drawn; but the amount which will be collected upon said orders, except the one upon Conyers, he does not know, nor cannot ascertain, until a final settlement takes place with them; but whatever sums he may collect upon said orders, will make an addition to the sums already in his hands, which will be due and owing to Stone on settlement. He further states, there was an order drawn by said Stone upon Joseph Freeman, which he presented, but Freeman refused to accept it, and one drawn, upon Charles Boyd, which he never presented, because he heard Boyd was taking out an attachment himself, against said Stone. He further states, that he accepted the deed of trust, and the above recited orders, for the purposes expressed; had the deed proved by the subscribing witnesses, and afterwards acknowledged by said John Stone; he proceeded under the deed of trust, anc^ so^ ^le property conveyed thereby, which he could get into his possession, upon or about the 29th of May, 1831, for cash, which produced the sum of $1941 68 3-4 cents. He further states, at the time the deed of trust and above orders were enclosed to him by Stone, there was a receipt enclosed with them, signed by John Stone, in these words: “1831, March 15th, received of John Hearn, Sheriff of Wilson county, all fees in his hands, or that may hereafter come to his hands.” This receipt he showed to several persons, and always disclaimed relying upon the receipt, but expressed a willingness uniformly, to account for all fees in his hands, due and owing said Stone, and is still willing to account for and pay over all fees due and owing him, to such person or persons as may be entitled, notwithstanding said receipt. He further states, most generally when Stone applied to him for money, he would state, I want money; I think you have fees in your hands. This deponent would say, let us settle. Stone would re-reply, I am in a hurry now, pay me so much and I will settle hereafter, and deponent would advance money and take his due bill for the amount. He will not state this was always the case; he, perhaps, on a few occasions, advanced mioney to Stone and would take his due bill when he thought there was not fees enough in his hands to pay the amount advanced, and the opinion of himself and Stone both was, when he paid the $50, on the $150 note, that a greater sum had been advanced than the amount of his fees. But when the last money was advanced, and the last due bill of $200 was given, depoment did not believe he would fall in his debt upon settlement, but that Stone would be in his debt, and he thought,, when that due bill was given, Stone would owe him that amount, at least, if not more, and still was of that impression, until since they entered' into a settlement. Hie further states, on the first of June, 1831; he accepted at.) order, drawn by John Stone,' in favor of Foster Gr. Crutcher, for the amount of the claim sued for,.payable out of the fees which were in his hands, or which he might thereafter collect, on said 1st day of June 1831, unless he was responsible to pay other claims by due course of law.”
    
      A t the September term of the same court, Hearn came into court and rendered his supplemental statement in these words:
    “He states, that he has made and finished a settle* ment, embracing all fees, in all the suits he can find or recollect, which he has collected himself; what his deputies may have collected he has not included in this settlement, and he falls in debt to John Stone the sum of seventy-eight dollars and forty nine cents, besides the orders mentioned before. Brevard’s order is accepted for ten dollars; Bonner’s for four dollars and sixty-two cents; making, with Conyer’s, the sum of ninety-seven dollars and eleven cents. This is in his hands after the paying the notes given to him by Stone without interest, and in the settlement he did not claim interest, and does not yet claim interest.”
    The deed of trust referred to in the statement of Hearn, is in these words:
    “This indenture witnesseth, that John Stone, of the county of Wilson, for the consideration of one dollar to him in hand paid, before the ensealing and delivery of these presents, has bargained and sold, and by these presents, bargains and sells to John Hearn, of the county and State aforesaid, a negro woman named Cary, aged about thirty-three, and her two children, one a boy about two years old, by the name of Bill, the other about two months old, by the name of Rody; one boy by the name of Clayton, about fifteen years old, of a yellow complexion; one negro girl named Mary, about eleven years old, dark complexion; the house and ground or lot whereon I now live, containing about four acres; also thirty-three acres of land south of Robert Fullerton’s, whereon Lit-tleton.Benthall formerly lived; also, all the interest that 1 have in and to one hundred and ruteen acres oi land, purchased by Topp, Motley and Stone, as the property of James Williams: four tables, two bureaus, one secretary, four trunks, three beds, bedsteads and furniture, one clock, one press, twelve head of hogs, one gig and harness, two brass kettles, one plough and gear, seven head of cattle, all the leather that I have at Finley’s tan-yard, shelves, desk and table in office, two pair of andirons, two club axes, one candle stand, one work stand, one child’s cribb, one press, one woman’s saddle, one grind stone, some cedar paling; to have and to hold to the said John Hearn, his heirs, &c. forever, in trust, nevertheless, for the following purposes, and none other: The said John Stone stands indebted to John Hearn, for sundry notes, for money borrowed; also to James M. Arm-stong for four hundred and twenty five dollars, for a note executed to me by way of accommodation, of the 31st day of January, payable in the United States Bank; also to John Cox, for three hundred and ten dollars, twenty-five cents, dated 31st January, 1831, which was given by way of accommodation, and payable in the United States Bank, but subject to a credit of one hundred and five dollars, and the discount, which I drew for him in the note executed to Smith and Barksdale; also one note made to me byway of accommodation, from Frazer and Brown, for four hundred dollars, payable in the United States Bank; also my own note payable in the United States Bank, to Smith and Barksdale; also my note to Frazer and Brown, and an open account; also Crockett and Park, forty-eight dollars sixty-six cents, open account; also my note to Elijah Williams with E. A. White security, for two hundred and fifteen dollars, but subject to a credit of thirty dollars; also my note of sixty-three dollars, due to the bank agency of Wilson county, with Charles W. Cummings security; also whatever may be due George H. Bullard on settlement; also Johnson and Hicks, open account; also Thomas S. Green, as my security to a note given to the executrix of Benjamin Clifton, deceased; also John Cox, for a note given at the same time, to the executrix; also my note to W. W. Searcy & Go. for about forty dollars, and the balance of the proceeds to be paid to Joseph Johnson, Benjamin T. Motly, William Word and Robert Bum-pass, as my securities for the clerkship, and being desirous to secure the same, and provide for the payment thereof; this indenture witnesseth, that it shall and may be lawful for said trustee to take into his own hands and possession, the property above described, or so much as may be sufficient for that purpose, and apply the pro - •needs to the payment of the debts as they are named in this indenture. In making the sale, the trustee shall give notice as in other cases, and said trustee is hereby authorized and empowered to make deeds, bills of sale, or other assurance of title, in the name of the said Stone, with general warranty. It is further understood, that said Stone retains possession of the property until said trustee may be required by the parties, or any part of them, to proceed in the business; but if the said Stone should otherwise pay said debts, then this shall be void and of no effect. In testimony whereof, I have hereunto set my hand and seal, this 26th day of March. 1831.”
    At the same term of the court, judgments were rendered against Hearn for the several amounts claimed by the plaintiffs. From these judgments, Hearn prosecuted an appeal to the circuit court, where, by consent of parties, the causes were consolidated, and the general appeal agreed to be considered an appeal in the nature of a writ of error. The circuit judge affirmed the judgment of the county court, from which decision the defendant, Hearn, appealed to this court.
    
      J. 8. Yerger, for the plaintiff in error.
    1. The first objection taken to the proceedings upon this record, and for which the judgment should be reversed, is that Crutch-er’s attachment is void because it has no seal to it. The seal is expressly required to be attached to it, by the act authorizing the issuance of the attachment; and being a mode of proceeding unknown to the common law, must be strictly pursued, or the proceedings will be void. As well might the justice have failed to sign his name to the attachment, as to omit the sealing of it. Act of 1794, ch. 1, sec. 25: 1 Scott’s Rev. Laws, 457: 2 Yerger’s Rep. 484: Walker vs. Wynne and others, 3 Yerger’s Rep. 67, 73.
    2. To Bullard’s attachment it is objected, that he has not signed his affidavit; this was necessary in order to make it a proper affidavit or complaint; without this it is a nullity, being before an inferior jurisdiction. The State vs. Steele, 1 Yerger’s Rep. 394.
    3. The justice of the peace who issued the attachment has made himself a security for the damages, &c. This is not allowable, and for this, the attachment and all the proceedings are void.
    4. There is a variance between the amount claimed in the affidavit, and the sum for which the attachment issued. This is fatal. 2 Haywood’s Rep. 159.
    5. There are joint objections to be found in the record, applying to both cases.
    1. Any lien that might have been given or acquired by the attachments, if properly continued, was destroyed when Stone came in and confessed judgments for the amounts claimed. The appearance of the party was secured, and the object of the law complied with. 1 Harris and Johnson’s Rep. 491: 1 Hay. Rep. 21: Peck’s Rep. 198.
    The judgment was not by virtue of the attachment. It was a new proceeding, not under the attachment, disconnected with it, and destroying the operation of the attachment, and was a judgment to be proceeded upon as in any other case by execution.
    2. These parties lost their lien, and discharged the garnishments by issuing an execution upon their judgments by confession. Amyett vs. Blockhouse, 3 Murp. Rep. 67.
    3. There are no declarations filed in these cases setting out the demand, and default taken against Stone. The judgment against Stone by confession has nothing to do with these proceedings; and without a judgment against the principal, none can be given against the garnishee. Peck’s Rep. 198: Cooke’s Rep. 478.
    4. The garnishments in these cases were issued and signed by the justice of the peace who issued the attachment. The justice had no authority to issue garnishments upon these attachments, because not within his jurisdiction. The garnishment is only a means of levying the attachment, and can only be issued by the sheriff or constable executing the same.
    5. In order to make a perfect and legal levy, the sheriff must take the personal property into his actual possession. 1 Yerger’s Rep. 36. In this case he did not, nor could he do this, because the title to the property was not in Stone, against whom the attachment issued, but in Hearn, and therefore the levy was void and insufficient. 2 Haywood’s Rep. 73.
    6. The levy endorsed on the attachment does not show that the money in the hands of Hearn belonging to Stone was levied upon by garnishment, or otherwise, nor is there any endorsement of such, levy upon the garnishee summons, consequently all proceedings under it are void. Peck’s Rep. 296-.
    7. The money attempted to be attached in the hands of Hearn was by him collected as sheriff, and could not therefore be attached. 2 Haywood’s Rep. 71: 1 Mur. Rep. 47: 1 Ten. Rep. 208.
    8. The orders from Stone in favor of Hearn for the moneys collected as fees, were appropriations of this money to Hearn’s own debts, and could not be attached, the attachments having issued after the appropriation. 4 Durn-forcI and East, 343: 12 Mass. Rep. 206: 6 Wheat. Rep. 277: 2 East, 227, 235, 236: 1 Cain’s Rep. 379: Chit. on Bills, 180, 131: 1 Wash. Cir. Court Rep. 424.
    Hearn could not pay himself out of the proceeds of the property in the deed of trust, until he had exhausted the money in his hands, because there were creditors, and the same act that gave him the trust fund to secure his debt, at the same time appropriated the other moneys first.
    9. But suppose judgment could be given upon these proceedings, it could only be for the sum of ninety seven dollars and eleven cents, the amount of the fees in Hearn’s hands, which was found to be due on settlement. Hearn was obliged, in favor of those creditors secured in the deed of trust, to pay himself, if sufficient, or at least apply the fees and other moneys to the satisfaction of his demand before he could use the trust fund. After so applying them, the balance is only ninety seven dollars and eleven cents.
    10. The notes from Stone to Hearn were given as receipts to Hearn for money, which would be taken upon final settlement; the balance upon that settlement could have been attached, and no more, as Hearn states in his answer that the notes were only to be used in the room of receipts when Stone called for a settlement; it was a payment over by Hearn to Stone of the money, with the balance to be accounted for upon final adjustment, which being made Heam says would leave him debtor to Stone about ninety-seven dollars and eleven cents.
    It was no payment of Hearn’s debt twice. Heam had collected the money as sheriff for Stone; an unsettled account was between them, the orders were to pay himself what might be over paid by Hearn to Stone.
    Heam does not wish to pay himself twice. When Stone received the money for which the notes were given, Hearn supposed, which was the fact, that he would be Stone’s debtor. The notes were taken to be vouchers upon final settlement. It was necessary to show first the whole amount due from Hearn to Stone; then the amount paid to him by Hearn, which the notes evidenced; the balance as Hearn states of the moneys by him received, under this agreement for Stone, was ninety-seven dollars and eleven cents, and is the amount of money due and subject to attachment and no more.
    
      Rucks, for defendants.
    These are two distinct and independent causes in which the defendants have no joint interest, but were consolidated by consent of the parties, and are brought to this court by Hearn, the plaintiff in error; and the first question is, whether the court can or will take jurisdiction of-them in this form.
    Crutcher and Bullard on the twenty-eighth and twenty-ninth of March, eighteen hundred thirty-one, sued out original attachments against John Stone, returnable to the county court of Wilson, and summoned John Hearn, the plaintiff in error, as garnishee.
    Stone had absconded and returned, (or rather was brought back,) and at June term, eighteen hundred and thirty-one, confessed judgments, to wit, to Cutcher for two hundred and fourteen dollars, to Bullard for ninety-four dollars thirty-one and a fourth cents. At the same term Hearn made his statement, showing that as sheriff he had collected upwards of one thousand dollars for Stone, who was clerk of the county court, and had paid the money over to him, but at the times when it was so paid the parties had not leisure to settle, and he (the sheriff) took 1ns (the clerk’s) notes for the money so paid. That afterwards, Stone (the clerk) being about to runaway, to wit, on twenty-sixth of March, eighteen hundred and thirty-one, made a trust deed of all his property, amounting to near two thousand dollars, besides several orders, appointing Hearn the trustee, directing him to pay sundry debts, but first of all to pay these very notes. Hearn on the twenty-eighth of March received this deed, proved it, and acted under it, and received again the money he had paid to Stone.
    
      The case in a word is this: Hearn as sheriff had collected one thousand dollars for Stone and paid it to him, and Stone chose to pay the money hack to Hearn; and the question is, whether it can he reached in Hearn’s hands hy this garnishment.
    The county court thought it could, from which Hearn appealed to the circuit court. The parties afterwards agreed that the appeal should he a writ of error. But was not this an agreement to change the law? And had the circuit court any jurisdiction?
    The circuit judge however affirmed the judgment of the county court, and the cause is brought to this court hy writ of error.
    The object of Stone no doubt was, that Hearn should befriend him to this amount of money; for at the same time that he directs it to be paid to him, he gives him a receipt in full for all fees collected by him. But Hearn very honestly discloses the whole transaction.
    And the plain state of the fact is, that Heam holds for Stone one thousand dollars of- Stone’s money; not as sheriff, because he had paid it over; not as trustee, because this amount was directed to be retainéd by himself, and the balance of the property to be applied to the debts. Suppose A. by mistake or fraud should direct his trustee to pay B. one thousand dollars, when he owed him nothing, when in fact B. was indebted to him, might not this money be reached by creditors under the act of 1794, c. 1, s. 22?
    When Stone returned, finding his scheme defeated, he directed Hearn to pay Crutcher out of any money in his hands, which surely exempted the sheriff from the reason of the decision, (Pawley vs. Gaines, 1 Ten. 208,) even if that, decision was law, but it is certainly founded upon erroneous analogies.
    It is no objection to these proceedings, (as assigned for error,) that the summons was issued by the justice or constable. It was not returnable before himself, as in Seawell vs. Murphy, Cookers R. 478.
    Besides, the garnishee appeared and answered, waiving all exception to process and notice. Cheatham vs. Hodges, Peck. 177.
    Nor is there any thing in the second error assigned as to levying the attachment: the object of the levy was to bring Stone, the defendant, before the court, and he afterwards came in and confessed judgments.
    These judgments and the statement of Hearn, were at the same term. The court upon the authority of Cheat-ham vs. Trotter, (Peck, 198,) will presume the judgments were first rendered.
    
      T. H. Fletcher argued on the same side.
   Green, J.

delivered the opinion of the court.

The principal question in this case is, whether Hearn is liable for more than the $97 00, due to Stone, after deducting the amount of the notes on Stone from the amount of moneys in Hearn’s hands belonging to Stone.

Hearn says that he had collected moneys as sheriff of Wilson county for Stone, and had paid him at various times $1050; that as stone and himself came to no settlement, he took Stone’s due bills for the sums paid him. The court is of opinion, that this statement shows that the money collected by Hearn, as sheriff, was paid to Stone; that the advances were intended by Hearn as a payment, and that the due bills were only taken as evidences of such payment, to be used by Hearn on a settlement as vouchers for him; for Hearn also states, that when he settled with Stone, he charged no interest on the notes. The reason he did not, must be, that he considered the moneys advanced at the date of each note, as being the payment of so much then due to Stone.

Hearn further states, that on the 28th of March, 1831, Stone enclosed to him a deed of trust, conveying certain property to secure the payment of the due bills he had given to him, and certain other debts therein mentioned. The deed of trust exhibited, provides for the payment of these due bills, and various other debts. Hearn says be accepted the deed of trust, for the purposes expressed in it, caused it to be proved, and sold on the 29th day of May, 1S31, all the property conveyed thereby, which he could get, to the amount of $1,941 68f. He also says, that at the same time the deed of trust was sent to him, there was also enclosed a receipt signed by Stone in these words: “1831, March 15th: Received of John Hearn, sheriff of Wilson county, all fees in his hands, or that may hereafter come to his hands.” He did not intend to rely on the receipt, but was willing to account for all the moneys he might owe Stone. We are-of opinion that the acceptance of this deed of trust by Hearn, as a security for the payment of the due bills executed by Stone to him, and the sale of the trust property to an amount sufficient to satisfy them, replaced in his hands the whole .fund derived from the fees collected by him for Stone, in a condition to be attached in his hands by Stone’s creditors; that Hearn thenceforth held this fund, not in his official character as sheriff, but that it was in his hands as a private individual.

Stone evidently intended by the receipt, and the deed of trust, that Hearn should be indemnified for his advances out of the trust property, so that the fund derived from fees collected, should remain in Hearn’s hands protected from his. creditors, and to be appropriated to his own use. Hearn wras too honest to second his views in this; but having accepted the indemnity provided in the trust deed, the fund remains in his hands, not for Stone, but for his creditors.

The objection to the attachments which were-issued against Slone, is obviated by his appearance and confession of judgment. Having confessed a judgment in each of these cases, Stone cannot insist upon its reversal on account of any defect m the attachments; and as Hearn s , , , , , „ , ... iiabnty to this garnisheement depends upon btone s ha-bility, Hearn can insist upon no objection which would not be good in favor of Stone.

Hearn’s appearance and answer, is a waiver of any defect in the garnishee summons. Its office is ended so soon as the garnishee appears and submits to answer.

Let the judgment be affirmed.

Judgment affirmed.  