
    *John Adams vs. F. Crimager.
    Where there are several executions in the sheriff’s office against the same defendant, of different dates, the defendant may, on paying money to the sheriff, direct its application, and the sheriff, on rule, will ho protected.
    A receipt from the sheriff, when money has been paid on a junior execution, is a discharge to the defendant pro tanto on the execution.
    Before Earle, J., at Lancaster, Fall Term, 1840.
    The plaintiff’s execution was lodged 16th March, 1840. An execution at the suit of Weed, Benedict & Co., was lodged the 13th of April, 1840, against the same defendant, who paid to the sheriff, on 16th July, $178.14, which he directed to be applied to the payment of the last mentioned execution, and took a receipt from the sheriff entitled of that case.
    This was a rule on the sheriff, who has the money yet in his hands, at the instance of Adams, to show cause why the money should not be paid over to him, as the oldest execution creditor.
    As the money did not arise from the sale of property, the lien of the execution did not attach upon it. A payment of the money by the defendant, to the plaintiffs, Weed, Benedict & Co., themselves in person, would have been protected as a valid payment. It would have been a mere preference of one creditor to another, which, under the circumstances, the defendant had a right to make. I think, on principle, the payment of the money to the sheriff, makes no difference, as he gave directions how it was to be applied ; which directions the sheriff has consented to obey, by giving a receipt accordingly. The sheriff, on a fi. fa. could not levy on the money in the pocket of the defendant, nor compel him to pay it to the execution of Adams. The sheriff had two executions, and the defendant selected which he would pay ; it is the common case of one owing several debts, and making a payment, directing the application of the money. The sheriff’s receipt is at least a discharge of the defendantpro tanto on the execution of Weed, Benedict & Co.
    I dismissed the rule, and the plaintiff appeals, on the ground :
    *That the Court erred in ruling that “ where there are several executions in the sheriff’s office, against the same defendant, of different dates, the defendant may, on paying money to the sheriff, direct its application; and that the sheriff is not bound to apply money, so paid, to the oldest execution.”
    
      Clinton and Hanna, for the motion,
    contended that money is subj ect to levy under execution, and it was the business of the sheriff to levy, in this ease, in favor of the oldest execution.
    Cited 1 McCord, 395; Dalton, 145. The execution goes as well against money as other property. 1 Cranch, 117, to show that money may he levied on under execution. 12 Johns. 220; Id. 395; 2 N. & McC. 341; 1 Bail. 39; Means vs. Vance, 2 Hill, 406. In the case at bar, the sheriff received the money as sheriff. 4 McC. 8; P. L. 379. The oldest execution must he satisfied.
    
      Wright and McMullin, contra.
    
   Curia, per O’Neall, J.

We concur in the opinion of the Judge below, and adopt the reasoning by which he sustained it. It is, however, necessary to add, that in doing so, we do not question the authority of Summers vs. Caldwell, (2 N. & McC., 341,) nor of Means vs. Vance, (1 Bail. 40.) Generally, money is the subject of levy. But it cannot be said, that it is also subject to the lien of an execution. It has no earmark, by which it can be traced, and as the circulating medium of the country, it would not do to arrest its transfer from hand to hand by liens of which the receiver would be generally ignorant, and of which he would have no means of information. The most which can be said with certainty, as to the liability of money to levy is, that when it is within the power of the sheriff, as the property of the defendant in execution, it may be seized. But when the debtor delivers it to the sheriff, for one of his creditors, it comes into his hands and power, not as the property of the debtor, but as the property of the creditor. It is paid to him as the the agent of the creditor, and extinguishes so much of the execution on which it is paid. There is then ^nothing to be levied by a senior execution. In Means vs. Vance, (1 Bail. 40,) which was a rule against the sheriff, (as this is,) to show cause why he did not apply the money collected for the defendant, on an execution, to the plaintiff’s execution, Judge Nott said, “If, therefore, it had appeared that any other person had a legal, or even an equitable claim to the money, the Court ought not to have interfered in this way.” This dictum would be enough for this case. For here, Weed, Benedict & Co. claim the money. It was paid to the sheriff for them: and hence, therefore, on rule, the Court would not deprive them of any right, legal or equitable, which they may have to it. Being paid to the sheriff, for them, he must pay it to them, and then if the plaintiff chooses, he may try their right to it by an action against them.

See Lynch vs. Hanahan, 9 Rich. 191; Maddox vs. Williamson, 1 Strob. 24, and cases there cited; 4 Rich. 130; 2 Rich. 528; Cheves, 113; 2 McM. 328. An.

The motion is dismissed.

The whole court concurred.  