
    *F. Day vs. F. A. Becher.
    Where goods have been levied on by a Sheriff, under executions in his hands, and before they are sold, a writ of foreign attachment against the same defendant is lodged in his office, he may levy the attachment also on the goods ; and this is not such a case, where the property or fund is protected by being in the custody of the law.
    Merely lodging a writ of attachment in the Sheriff’s office, is not sufficient to attach the property or fund in his hands ; but the Court will permit him to accept service, even after rule and cause shown — nunc pro tunc.
    
    Before O’Neall, J., at Charleston, May Term, 1840.
    This was a rule against the Sheriff to show cause why he did not pay over moneys in his hands, belonging to the defendant, to the plaintiff.
    He returned for cause, that he levied sundry executions on the goods of the defendant, from which they were satisfied, leaving a balance in his hands ; that while the goods were in his hands, a writ of foreign attachment was lodged in his office, which was considered as accepted by him. Afterwards, the execution of the plaintiff was issued out of the City Court, and lodged in his office.
    The Sheriff was allowed to enter an acceptance of the writ of attachment on the day on which it was lodged in his office.
    The rule was discharged. The plaintiff appeals, on the annexed grounds.
    GEOUNDS OF APPEAL.
    1. That the Sheriff having made a levy under executions, the whole property was in the custody of the law, and could not be attached.
    2. That to attach any property in the hands of the Sheriff, it is not sufficient merely to lodge a writ of attachment in his office.
    3. That though the Sheriff did acknowledge the lodgment of the writ, as notice to himself, it was not sufficient to bar the action in this case.
    4. That it is necesary, in order to attach property in the hands of the Sheriff, that he should be regularly served with a copy of the attachment writ by the Coroner.
    5. That his Honor erred in allowing the Sheriff, after rule and cause shown, to enter a written admission of notice, or acceptance of service.
    
      sheriff's return to the rule.
    The Sheriff of Charleston District, in answer to the foregoing rule, says, that on the 10th and 11th days of April last, two fi. fas., were lodged in his office, at the several suits of Charles J. Bollin and Matilda Schroder vs. F. A. Becher, under which he levied on and sold the stock in trade of said F. A. Becher, to an amount considerably greater than the sums due on said executions, and expenses of sale. That while the said goods were yet unsold, in his hands, to wit, on the 22d April last, a writ of foreign attachment was lodged in his office, at the suit of James A. Bowie vs. the said F. A. Becher, for an amount more than sufficient to exhaust the balance of the proceeds of sale in his hands. That on the 14th day of May last, a fi. fa. was lodged in the Office of the Sheriff of the City Court, at the suit of Fisher Bay, against the said F. A. Becher, and notice of the same was served on the respondent. That on the 19th day of May last, a ji. fa. was lodged in respondent’s office at the suit of the said James A. Bowie vs. the said F. A. Becher, on the attachment writ aforesaid, and respondent has been required to pay over the balance in his hands to the attaching creditor aforesaid ; and under these circumstances he prays judgment of the Court as to the disposition over of the fund in his hands. Respondent further answers, that there being no Coroner in the district, a day or two after the lodgment of the attachment, plaintiff’s counsel consulted respondent as to the acknowledgment of the service of the attachment by him as a garnishee, and respondent replied he deemed it unnecessary, as he considered the lodgment of the writ sufficient notice. Respondent further answers, that the sale of the goods being for a greater amount than the executions called for, was made by consent of all parties, including the defendant, and the attaching creditor.
    Alexander H. Brown, S. C. D.
    
      Walker, for the motion, said that to attach the funds of an absent debtor, the garnishee must be served. He cited P. L. *369, 9th sec. The Sheriff must be served by the Coroner. (2 Brev. Dig. 86.)
    
      Yeadon, contra,
    submitted the case without argument.
   Curia, per

O’Neall, J.

In this case it ought to be kept constantly in mind, that when the writ of attachment was lodged in the Sheriff’s office, the goods of the defendant were in his hands in specie. He had previously seized them in execution ; but still he might have levied the attachment, and this would have constituted no conflict between the two processes. The levy of the attachment would have been a junior lien, and could only have created a claim for what might have been left after satisfying the precedent levy. This is not a case where the property or fund is protected by being in the custody of the law. So too, the Sheriff being in the possession of the goods of the absent debtor, was properly the garnishee.

For lie is not within the exception which in one case exempts him from being made a garnishee. In Serg’t. on Att. 89, it is said that a Sheriff cannot be made a garnishee in respect to money raised on a fi. fa. This is the only exception, and in all other cases he is like any ether person, liable to be summoned. In this case he had the defendant’s goods, and now has the defendant’s money, left after satisfying the elder execution. Service upon him would have been a levy upon the goods. He might accept the service, and thus make it effectual. He said in his return, that he was applied to to acknowledge service, and that he said he thought it unnecessary, as he considered the lodgment of the writ sufficient notice. The party plaintiff in attachment ought not to be prejudiced by an ommission of the officer of the law, which the Court could remedy by amendment.

This is often done in the amendment of returns of service of writs, of levies on ft. fas. and generally in all cases where it is a mere clerical omission or mistake. This practice was pursued in this case, and by doing it the record is perfect, and the prior lien of the attaching creditor is preserved.

The motion is dismissed.

The whole court concurred. 
      
       See Blair vs. Cantly, 2 Sp. 34. 1 Strob. 244 2 Sp. 389. An.
      
     