
    S. L. Maddox vs. C. M. Kennedy, sheriff.
    
    If a sheriff has an execution in favor of C. D. and one against him, and collects money on the execution in his favor, hut does not apply it to the execution against him, indebitatus assumpsit by the plaintiff in the execution against C. D. will not lie against the sheriff for the money thus received.
    
      Indebitatus assumpsit for money had and received will not lie on a mere liability arising from an official act; to sustain it, there must be money in the hands of the defendant to which the plaintiff has an instant right.
    
      Before Wardlaw, J. at Laurens, Spring Term, 1845.
    This was an action of indebitatus assumpsit for money had and received by the defendant, as sheriff, to the use of the plaintiff.
    The plaintiff had a judgment against one John E. Williamson for about $650, besides interest and costs, which had been entered up, and Ji. fa. thereon lodged with the sheriff on the 18th day of October, 1841. In November, 1840, John E.. Williamson had entered up a judgment, and lodged a ft. fa. thereon, against one Reuben Williamson for upwards of $4000. This latter judgment was assigned by John E. Williamson to one Elisha Williamson, on the 14th day of October, 1841. In December, 1841, and April, 1842, the defendant, as sheriff, sold property of Reuben Williamson, and had in his hands, as the proceeds thereof, about $730, which was applicable to thq fi. fa. of John E. Williamson, that being the oldest unsatisfied execution against Reuben Williamson. This action was brought to recover so much of that sum as would satisfy the plaintiff’s judgment; the plaintiff insisting that the assignment to Elisha Williamson was fraudulent, and that the money, when received by the sheriff, belonged to John E. Williamson, and became immediately applicable to the plaintiff’s judgment against him. For the defendant it was contended that even if the assignment was fraudulent and void, yet the plaintiff could not recover, for the following, amongst other reasons: 1st. Because, after this action was commenced, to wit, in June, 1842, the plaintiff had issued a ca. sa. on his judgment against John E. Williamson, under which he had been arrested, and had given bond for the prison rules, the condition of which he had violated ; which bond had been assigned to the plaintiff. 2d. Because there was no privity of contract between the plaintiff and defendant. 3d. Because, if the defendant could be made liable at all to the plaintiff, it could only be in a special action of assumpsit, and not in indebitatus assumpsit for money had and received. 4th. Because the plaintiff, as an execution creditor of John E. Williamson, had no right to funds arising from the sale of Reuben Williamson’s property.
    His Honor refused a motion for a non-suit. He held, (but with much hesitation,) that money made by a sheriff for a plaintiff in execution becomes instantly subject to the lien of a fi. fa. against the plaintiff, and is applicable to it without any order of court; and of consequence, conceding that the plaintiff might, (if the assignment were void,) recover of the money in the sheriff’s hands enough to satisfy his execution, that the plaintiff’s fi. fa. being thus satisfied by operation of law, the ca. sa. was irregular, and no consequences resulted from suing it out, as would have done if it had been a regular process.
    The question as to the validity of the assignment was submitted on the testimony, of which there was a good deal, to the jury. Terdict for the plaintiff.
    
      The defendant appealed, and now renewed his motion for a non-suit, on the grounds taken in the court below.
    
      Sullivan and Irby, for the motion,
    contended that the plaintiff’s judgment was satisfied by the arrest and other proceedings under the ca. sa. Berry vs. Hoke, 1 Rich. 76, On the second and third grounds they cited Davis vs. Hunt, 2 Bail.- 416. A.fi. fa. has no lien on money collected by the sheriff. All. on Sheriffs, 162 ; Turner vs. Fen-doll, 1 Ora. 117; 6 Cow. 494.
    
      Perry and Young, contra.
    The finding of the jury has established that the assignment was void. That being out of the way, it is clear that the plaintiff, when he sued, was entitled to the money; the proceedings under the ca. sa. cannot affect his right to receive it; because, if the money was applicable to his execution, his judgment was satisfied, and therefore the proceedings under the ca. sa. were irregular and void. The only question then is, is his form of action the proper one under the circumstances ? They cited 2 N. & McC. 341; Williams vs. Rogers, 5 Johns. R. 167 ; 12 Johns. R. 220 ; 1 Cra. 133 ; 2 Hill, 407, 503 ; Harp. 389 ; 2 Bail. 412 ; 2 McM. 416 ; 2 Stat. 555; P. L. 129; 1 Hill, 310.
   Curia, per Wardlaw, J.

I refused the non-suit, on the circuit, against the inclination of my own mind, because I was in doubt, and thought it better that a trial .of the facts should be had, leaving the defendant to renew his motion here, than that the 'case should be stopped, with a chance of its being sent back.

The motion for a nonsuit has been pressed here, mainly upon the ground, that by arresting J. E. Williamson under a ca. sa. and taking an assignment of the prison bounds bond, the plaintiff waived and lost his right to resort to his-Ji.fa. It may be observed that this case is distinguishable from Berry vs. Hoke, 1 Rich. 76, in these two particulars : 1st. here there was no judgment on the prison bounds bond, as there was there; 2d. there, there was no pretence of satisfaction before the arrest, as is urged here. This court, however, does not find it necessary to decide this ground.

The non-suit must be granted, upon the ground which most troubled me on the circuit: that the plaintiff had, when he commenced this suit, no such right to the money collected by the sheriff under the execution in the case of John E. Williamson against Reuben Williamson, as would sustain his action of indebitatus assumpsit against the sheriff. This form of action will not lie upon a mere liability arising from an official act; to sustain it, there must bé money in the hands of the defendant to which the plaintiff has an instant right.

Now, admit that a sheriff may levy on money, (as decided in Summers vs. Caldwell, 2 N. & McC. 341, and Means vs. Vance, 1 Bail. 39, and the cases in them cited,) money which has come to his hands is no more applied by operation of law to the case for which he should levy it, without some levy or application by him, than without any levy are other goods of the defendant which may have come to his hands. The sheriff may levy or apply the money in' his hands : but he does so, as in other instances of levy, at his own risk. The money, although raised under execution, may not belong to the plaintiff in that execution ; the sheriff must be left to inquire and determines If he should fail to apply what he ought, the court may order him to do so ; but this seems, in Means vs. Vance, to be considered a matter of discretion in the court. In a proper case the sheriff may be ruled, and an issue may be ordered to settle the rights of conflicting claimants. If a sheriff should pay' away money in disregard of the executions against the owner of the money, and such executions should thereby be defeated, he may, perhaps, be liable in a special action. But to hold that the law, without any act on the part of the sheriff, applies to executions against a plaintiff in execution whatever money may be received by a sheriff for him, would very greatly embarrass both officers and suitors. The certainty of obtaining payment by resort to other means, would have to be yielded to the doubtful chance of pursuing money amidst various claims, for fear of committing a trespass, by urging an execution that had been satisfied. Plaintiffs would have no certain means of knowing the condition of their cases and their rights. Indeed, when we remember the facility of assigning executions, and consider that if money made for a plaintiff in execution is applied, by law, to executions against him, if it has not been previously assigned, so must be money made upon executions which have been assigned to a defendant in execution, the confusion which would ensue might be serious beyond what we can now anticipate.

The motion for a non-suit is granted.

Richardson, O’Neall, Evans, Butler and Frost, JJ. concurred.  