
    MURRELL & FOOTE VS. DAVID JOHNSON.
    Money in the hands of the Ordinary, arising from the sale of real .estate for partition, is not the subject of attachment. The Court of Ordinary, having possession of the fund, has the exclusive right to dispose of it.
    The Court may, in its discretion, - permit a garnishee to amend his return.
    
      Before Gantt, J., at Union, Fall Term, 1835.
    The presiding Judge sent up the following report:
    “The Ordinary had sold land for partition, among the distributees of David Johnson, deceased, and held the bonds for the payment of the purchase money. Before the money became due, and before the settlement of the estate, an attachment was served upon him.
    Certain proceedings in the Court of Equity, on the part of Vessells and wife, to have the fund in the hands of the Ordinary paid over to them, .were relied on to vacate the attachment.
    1 overruled the motion to set aside the attachment. The case is distim guishable from that of an .executor, relied on by the counsel for Vessells and wife.
    I also allowed Pratt, the garnishee,To malte an additional return, which the plaintiffs’ counsel complained was illegal, &c.”
    The Qrdinary appealed from the decision of the presiding judge, sub? jecting the fund in his hands to the plaintiffs’ attachment, on the ground that this Court has jurisdiction over it; and the plaintiff appealed from the order of the court, permitting the Ordinary to amend his return.
    
      B. M. Pearson for the plaintiffs ; Dawkins for garnishee.
   Curia, per

Johnson, J.

The fund sought to-be subjected to this attachment, is in the legitimate possession of the Court of Ordinary, for the purpose of partition, as it is said, amongst the distributees of the late David Johnson, deceased, of whom the defendant is one, and the case stated bears a very striking analogy to that of Young vs. Young, 2 Hill, 425, in which it was held that funds in the hands of an executor, or the proceeds of the sales of real estate made for partition, was not the subject of attachment, in a suit against the legatee; and the only difference between the cases, is, that here the Ordinary is the garnishee, and there the executor ; the principle, however, extends equally to both cases ; the court having possession of the funds, has the right to dispose of them, and the jurisdiction over them belonged exclusively to the Ordinary.

Pratt, the Ordinary, and the garnishee, had unquestionably the right to appeal, for if he had paid out the funds, on the order of a Court not having jurisdiction of the subject, he would have been personally liable. In the language of the court, in Vessells vs. Johnson, decided at last May term, such an order would have been a nullity. The court, most undoubtedly, had the discretionary power of permitting Pratt to amend his return, and we have no doubt that it was discreetly and properly .exercised.

It is therefore ordered, that the order of the Circuit Court, requiring Pratt, the garnishee, to pay the funds in his hands to the plaintiffs, be, and ■the same is hereby, set aside and reversed,

O’Neall and Harper, JJ. concurred.  