
    William M. Moses, plaintiff in error, vs. James T. Flewellen, defendant in error.
    (Atlanta,
    January Term, 1873.)
    Execution — Relief Act of 1868. — When money was raised by the sheriff under a fi. fa. in favor of A, against B, and C, the holder of an older fi. fa., placed the same in the hands of the sheriff to claim the money, and gave him notice to hold the money for distribution by the Court, and the defendant instituted proceedings under the Relief Act of 1868, to reduce the older judgment, and pending these proceedings, though under the belief that they had been abandoned, the sheriff had paid the money over to the older fi. fa., which had, in the meantime, been purchased by A, the holder of the *younger fi. fa., and the proceedings to reduce the other judgment were afterwards abandoned by the defendants:
    Held, that it was error in the Court, on the motion of the defendant, to direct the money thus paid upon the older fi. fa. to be indorsed, as a‘credit upon the younger fi. fa.
    Execution. Relief Act of 1868. Before Judge Johnson. Muscogee Superior Court. May Term, 1872.
    This case arose upon the following facts:
    D. FI. Baldwin & Company, for the use of D. H. Baldwin, recovered a judgment in the Superior Court ■ of Muscogee county, on the 3d day of May, 1867, against James T. Flewellen, for $18,233 93, principal, and $1,788 08, interest to the date of judgment, with the accruing interest, upon which an execution was issued. This execution was assigned to William M. Moses. It was levied upon certain property of defendant, which sold for $7,000 00, $4,700 88 of which amount was held up by the sheriff, under a notice from Edward Bradley that he claimed such sum as due to him on an execution in his favor, recovered against Abner H. Flewellen, as principal, and James T. Flewellen, as security, in the County Court of Muscogee county, on March 15th, 1867, and under an affidavit of Flewellen that he desired to suspend the payment of said last mentioned execution, under the Relief Act of 1868. On or about July 1st, 1869, whilst said fund was still in the hands of the sheriff, Moses purchased the Bradley execution at fifty cents on the dollar, and on August 27th, in the same year, the sheriff, under the impression that Flewellen’s proceedings under the Relief Act of 1868, to open the judgment upon which said execution was based, had been abandoned, paid over said $4,700 00 to said fi. fa., and it was duly satisfied. But in fact, the proceedings to open said judgment had not then been abandoned, though they were based upon grounds held by the Supreme Court to be untenable. Proceedings were also instituted to open the junior judgment, which were subsequently and before the hearing of this motion abandoned.
    Under these circumstances the defendant, Flewellen, moved the Court to direct the $4,700 00, by which the Bradley execution *as aforesaid was satisfied, to be entered as a credit on the Baldwin execution. The Court so directed, and Moses excepted.
    R. J. Moses ; M. H. Blandford, for plaintiff in error.
    Ingram & Crawford, for defendant.
   McCay, Judge.

When the whole record is considered, this case at last comes simply to this: The sheriff paid this money to Mr. Moses at a time when he ought not to have’ paid it. But as matters have finally resulted, had he kept the money until it was paid out under an order of the Court, the very fi. fa. on which it was in fact credited, would, under the law, have got it. It seems to us that it is pushing the idea of regularity and method very far to give such tremendous effect to this entry of credit.

As we understand the argument, it is this: “The money went

into the sheriff’s hands for distribution. It has never been legally and regularly distributed. In contemplation of law, it is therefore still in the sheriff’s hands for distribution. If Mr. ■ Moses has it, he has it as the bailee of the sheriff. Of the 'two fi. fas. claiming it, that of the oldest date is to be considered the oldest, but the entry of credit on it satisfies it, and, therefore, the younger fi. fa. takes the money.” But this argument ignores the fact that this entry was for this very money, and if the money was not properly paid to it at the. time, the entry does not represent the truth, and there is really no credit. The Judge of the Superior Court, on a rule for distribution of money, sits as a Chancellor, and the rules of estoppel, etc., do not operate unless they are just and equitable. Hither the money was 'properly paid, or it was not. If properly, it is not now in the sheriff’s hands. If improperly, the credit is nothing.

We think the order to enter the credit on the younger fi. fa. was error. The order ought to have been simply an order reciting the facts and directing that, though the payment had *been made at a time when the sheriff was not authorized to pay out the money, yet, as the Bradley fi. fa. was the oldest, and as there had been a failure to reduce it, that the entry of it stand as a disposition of the fund held up by the notice.

Judgment reversed.  