
    Francis Lynch vs. James Hanahan.
    Where the sheriff collects money under execution in favor of one against whom there are fi. fas. in his office, application of the money, when made to the fi. fas. must be made to them-according to their legal priority.
    That a fi.fa. has been marked nulla bona and returned to the clerk's office, and a oa. 8a. has been issued, is no reason why money coming into the sheriff's hands and applicable to fi. fas. in his office, should not be applied to it in preference to junior^./««.
    Where the city sheriff has money in his hands applicable to fi. fas., he must apply it to a fi. fa. in the office of the district sheriff, of which he has notice,in preference to a junior fi.fa. in his own office.
    IN THE CITY COURT OF CHARLESTON,-TERM, 1855.
    The report of his Honor, the Recorder, is as follows:
    “ This case came up on a motion in behalf of the plaintiff for a rule against the sheriff, to show cause why he had not made the money on th e fi.fa. in the above case.
    “ It appears from the return of the sheriff — and there is no dispute about the facts — that on the 23d day of January, 1855, a fi. fa. in the case of James Hanahan vs. MoLeish, was satisfied by the defendant, who paid to the sheriff $344 50. That on the same day the sheriff received notice from' the attorneys of Francis Lynch, to levy on the said money in his hands as the property of James Hanahan, and apply it to the satisfaction of the fi. fa. in Lynch vs. Hanahan, which was then in the sheriff’s office, having been there lodged 80th October, 1854.
    
      “ There were also several other claimants for this fund. G. & H. Cameron had a judgment in the City Court against James Hanahan, upon which fi. fa. -had been lodged 26th February, 1853. This had been marked milla hona, and returned by the sheriff to the clerk of the court, 25th April, 1854, whereupon the plaintiff’s attorney lodged a ca. sa. with the sheriff, 26th April, 1854, upon which no proceedings were had. In this case the only execution in the sheriff’s office was a capias ad satisfaciendum; and there had been no fieri facias upon the judgment in his office since the 25th April, 1854.
    “ J. D. Kennedy had a judgment in the City Court against James Hanahan, upon which writs of fi. fa. and ca. sa. had been lodged on the same day, 24th June, 1854. The fi.fa. was marked nulla bona, and returned to the clerk, 21st December, 1854. No proceedings were had on the ca. sa. which remained in the sheriff’s office. In this case the only execution in the sheriff’s office was a capias ad satisfaciendum, and there had been no fieri facia upon the judgment in his office since the 21st December, 1854.
    “ The Bank of the State of Georgia had a judgment in the Court of Common Pleas fpr Charleston District, against James Hanahan, upon which a fi. fa. had been lodged with the sheriff of Charleston district, 22d April, 1854.
    “ The ease was argued by Mr. Northrop for Francis Lynch, by Mr. Seigling for G. & H. Cameron and J. D. Kennedy, by Mr. Mowry for the Bank of the State of Georgia, arid by Mr. Rutledge for James Hanahan.
    “ The Court directed an order to be drawn, that the sheriff should apply the money collected by him under the fi. fa. in Sanaban vs. McLeisb, to the satisfaction of the fi. fa. in the case of Lynch vs. Sanaban, which was the only unsatisfied execution oí fieri facias in his office against the said Hanahan.
    “ It is well settled that the sheriff can and should levy on money in his hands belonging to a defendant, in a case in which an execution of fieri facias has been lodged in his office. Summers vs. Oaldwell, 2 N. & McO. 841.
    “It was ruled in Reid-vs. Ramey 2 Rich. 4, that money in the sheriff’s hands is not subject to the lien of an execution, though he may seize it and apply it to an execution in his office.
    “In the case of Payne vs. Kershaw, Harp. 275, the principle in the case of Summers vs. Oaldwell seems to be assumed as clear, although as an authority it is rather inferential than direct.
    “In Means vs. Vance, 1 Bail. 39, it was ruled that money is liable to fieri facias, and is subject to be seized by the sheriff who is in possession of it, and applied to an execution of /i. fa. in his office at the time.
    In this cause, when the sheriff collected the money in the case vs. McLeish, there was no fi. fa. in his office against Hanahan except that of Lynch vs. Hanahan.
    
    “In the case of G. & H. Cameron, the fi.fa. had been returned by the sheriff, and only a ca. sa. had been lodged with the sheriff. In Kennedy’s case the condition of things were the same.
    - “ In the case of the Bank of Georgia, no execution had ever been lodged with the sheriff of the City Court at any time.
    “ At the hearing of this motion there was no other unsatisfied execution of fi.'fa. lodged with the sheriff, and the Court could discover no reason for refusing the motion on the part of the plaintiff Lynch.”
    The defendant, James Hanahan, appealed on the grounds :
    1. That the sheriff having refused to levy upon the money in his hands, and the executions not operating as a lien thereon, his Honor erred in deciding that any one of the execution creditors of James Hanahan was entitled to the fund in preference to another.
    2. That as there were several conflicting claims, the rule against the sheriff should have been discharged and the parties left to protect their rights by a resort to their ordinary legal remedies.
    G. & H. Cameron, on behalf of themselves and other execution creditors also appealed, on the grounds :
    1. That although, generally, money in, the hands of a sheriff is not subject to the lien of executions against a plaintiff for whom it is collected, jet it is respectfully submitted that his Honor, in giving effect to the application of Francis Lynch, to the same extent as though a levy had been actually made by him under his execution, should have ruled that, as soon as the money was thus levied upon by the sheriff, it became invested with the same incidents as any other property that might, have been levied upon, and should have been applied by the sheriff towards the satisfaction of the executions of fi.fa. against Hanahan, whether in his office or not, according to their respective dates.
    2. That the sheriff of the City Court not having applied or appropriated the fund, his^ Honor should have directed him to apply it among the creditors who had executions of fi. fa. against Hanahan, whether in his office or not, according to their-respective legal priorities, as fixed by the date of their lodgment in the offices of the different sheriffs.
    3.' That no proceedings having been taken on the execution of ea. sa. in- Cameron vs. Hanahan, his Honor should have ruled, that the fi. fa. in that case, although returned nulla Iona by the sheriff to the clerk’s office, was still effective from the date of its original lodgment and entry in the sheriff’s office. ■
    
      Shaffer, Seigling, for appellants.
    
      Northrop, contra.
   The opinion of the Court was delivered by

Whitner, J.

The facts in this case are conceded. Monies reached the hands of the city sheriff officially, belonging to Jamés Hana-han, against whom there are several unsatisfied-executions. The question is as to their proper application. The money is in Court ready to be applied on a proper order. The A. A. 1785, see. 87, 7 Stat. 229, directs, “ That if two or more such writs (fi. fas.) shall be delivered against the same person, that which was first delivered shall be first satisfied.” Priority then furnishes the true rule unless controlled by a stronger.

In this class the.execution of G. & H. Cameron stands first.The objection alleged is that this/, fa. had been marked nulla bona, and returned to the clerk’s office, whereupon a ca. sa., upon which no proceedings had been had, was lodged with the sheriff. “ There is no doubt but that a/, fa. and a ca. sa. may be taken and exist at the same time on the same judgment, though only one can be executed.” Mazyck & Bell vs. Coil, 2 Bail. 101. If the defendant had been under arrest on the ca. sa. these plaintiffs could not have claimed funds collected by the sheriff on a fi. fa. Johnson vs. Shubert, 2 Hill, 502, No just objection is furnished by the mere return of the fi. fa. to the clerk’s office, or the lodgment of a ca. sa. with the sheriff.

The next execution in order of time is that in favor of the Bank of the State of Georgia. '

The objection alleged as to- this rests on the fact, that the judgment was obtained in the Court of Common Pleas for Charleston, and the/, fa. lodged with the sheriff of Charleston District. The precise point, and as to these very offices, was settled in the case of Greenwood vs. Naylor, 1 McC. 414. The rule- equally applies as to such executions, “ that which was first delivered shall be first satisfied.” There needs no modification from an apprehension that the rule devolves on the officer the necessity of supervision in each office. When the proper case arises he will receive the proper protection. But with the fund in hand and full notice, what should hinder an observance of the rule already stated ? Officers incur no hazard, and plaintiffs in execution suffer no injustice.

These two executions will, it is said, exhaust the fund, and, if admitted, exclude the junior execution in favor of Lynch, the actor in this rule, to whom the Recorder directed the money to be paid.

The Court has not been able to perceive in what way an inquiry, whether money is the subject of levy or lien, can affect the present question, and hence I do not propose to follow to any extent the argument on that subject. This is not the case of a voluntary payment by a defendant in execution to a junior execution, as in Adams vs. Crimager, 1 McMul. 309. In the office of the sheriff there was an execution in favor of Ilanahan, and in satisfaction of that execution the money was paid to him. The sheriff, as already stated, received the money officially. Hanahan has been passive except that now, as it would appear^ from Ais grounds of appeal, seeing the difficulties in the way of his execution creditors, he proposes, as an easy solution, that the money be paid over to him.

The Recorder cites, in vindication of his judgment, Summers vs. Caldwell, 2 N. & McC. 341, where money was held to be the subject of levy by execution, and Means vs. Vance, 1 Bail. 39, recognizing the same doctrine. In the present case the sheriff did not levy, and indeed there was no reason why he should have done so. He produces the money in Court, and submits to its order ; in so doing he has acted discreetly, and is fully borne out by the cases cited. Whether money is subject to the lien of an execution is not free from perplexity; as the circulating medium of the country it would not do to arrest its transfer or jeopardize the rights of those through whose hands it may pass, and yet it has been seen that under certain circumstances it may be seized and applied. The cases of Reid vs. Ramey, 2 Rich. 4, and Maddox vs. Kennedy, Ib. 102, furnish instances in which, 'although money may be raised under an execution, it may, nevertheless, not belong to the plaintiff in that execution. In all such cases the court will inquire, and guard the rights of others. But really the ease in hand is believed to be free of all such difficulties. The sheriff neither levied nor applied; no third person'claims ; the defendant has no just ground on which to divert or withdraw this fund from its just destination — and the Court is entirely untrammelled.

It is, therefore, ordered, that the order made by the Recorder at the original hearing of the rule, directing the payment of the money in the hands of the City sheriff to the actor, Francis Lynch, on his execution against James Hanahan, be rescinded. It is further ordered, that the city sheriff apply the said funds to the executions against James Hanahan, according to priority, as indicated in this opinion, first, to G. & H. Cameron, next, to the Bank of the State of Georgia.

O’Neall, Wardlaw, Withers, and Glover, JJ., concurred.

Motion granted.  