
    John Dawkins v. P. R. Pearson.
    Upon shewing cause against a rule on the sheriff for an attachment to compel the payment of money in his hands, if it appear that the fund is claimed by different parties, and it is doubtful which of them is intitled to it, the rule will be discharged, and the parties left to litigate their rights by suit.
    Before Mr. Justice Richardson, at Union, Fall Term, 1831.
    . This was a rule on the sheriff, to shew cause why an attachment should not issue against him, for refusing to pay over to the plaintiff, the money made under the execution in this case. The sheriff shewed for cause, that the money had been made by the sale of land, which he had levied on as the property of the defendant, P. R, Pearson; and that he had been notified by one Roland Keenan, not to pay over the money to the plaintiff, until a suit, then pending between the said Keenan and the said Pearson, to try the title to the same land, had been determined. And that the said Keenan assigned as the ground of said notice, that he had purchased the land at a former sale, made by John Bates, then sheriff, under judgments and executions against the said Pearson, at the suit of the said Keenan, and others; and that the said judgments and executions had been satisfied by applying the proceeds of the said sale, and satisfaction had been entered on the record accordingly: but that in an action brought by ihe said Keenan, against the said Pearson for the recovery of the land, the jury had found a verdict for the defendant; and the said Keenan had brought a second action for the same purpose, which was the .suit, now pending. And the said Keenan insisted, that if his title from Bates was avoided by the result of the second action, then the entries of satisfaction on the judgments, to which the price paid by the said Keenan had been applied, should be vacated; and they being the oldest judgments against the defendant, the fund now in the hands of the sheriff, would be applicable to them, and should remain in his hands, until the question was determined.
    P, L. 190..
    The presiding Judge held the cause shewn insufficient, and made the rule absolute. The sheriff, on behalf of Roland Keenan, now moved to reverse his Honor’s decision, and to discharge the rule.
    A. W. Thomson, for the motion.
    Spencer, contra.
    
   .O’Neall, J.

delivered the opinion of the Court.

The proceeding by rule against the sheriff supposes that he is wilfully in default, and the judgment of the Court is, that he is in contempt : anything therefore, which shews that he is not in contempt, ought to discharge the rule. The sheriff is often the mere stake-holder of a fund, for the parties claiming it; and is perfectly willing to pay it over to either, when he can be legally protected in doing so. Where there is any doubt as to whom ,the money should be rightfully paid, the correct course is to diseharge the rule, and leave the parties to litigate, and determine their rights, by a suit.

In the case before us, the cause.shewn by the sheriff demonstrates that he is not in contempt; and the question is then made on his return, which of the two parties claiming is intitled to the fund ? Although the plaintiff in execution might, in the state of things as they now are, be legally intitled to receive the money in the hands of the sheriff, yet I think that on a proper proceeding, the other party claiming might succeed in establishing a prior right; for it is not to be denied, that the satisfaction entered on the elder executions, was made by the money which he paid for the land, when sold by the sheriff on a former occasion. That sale has been held fraudulent by the verdict of a jury, in a suit brought to recover the land; and the purchaser’s title has, of course, failed. One of two things, it would seem, ought to be done: either that the entries of satisfaction should be vacated, as made by mistake; or that the land should be declared liable in Equity for the purchase money paid, and interest. Without however, giving any decided opinion, whether either of these modes of relief ought to prevail, it is sufficient, that the cause shewn by the sheriff establishes that he is not in contempt: and the rights of the parties, present too doubtful a question to be decided on so summary a proceeding as that by rule. The motion to reverse the circuit decision is granted.

Johnson, J. and Martin, J, sitting for Harper, J. concurred.

jRotion granted.  