
    E. & C. Robins v. Henry Ruff.
    
    
      Before Mr. Justice Earle, at Newberry, Spring Term, 1834.
    Where theshe-riff sold nesroots gage after con-dltion broken; the Court held, that the sale by afan''agent Wof the mortgagee “Sida”"capacity; et»sed on a toorder’the suri pJ“s satisfying the executions,
    
      This was a rule against the sheriff to shew cause why he should not pay over to the plaintiffs certain monies in his hands, which it was contended were liable to their execution against ,r rlpfpnrlrmt tne oeienaant.
    The sheriff shewed for cause the following facts: That after the lodgement of the plaintiffs’ execution, a mortgage on live of defendant’s negroes to Y. J. Harrington was placed in his hands by the mortgagee, with directions to seize and sell the negroes for the payment of the money thereby secured. The condition of the mortgage had been broken before the plaintiffs’ execution was lodged. That he sold the negroes under the mortgage, and the mortgage was satisfied from the proceeds ; and a balance still remaining in his hands, Rufi', the mortgagor, gave to Martin Sober, a junior execution creditor, an assign-merit of the surplus proceeds of the sale after satisfying the mortgage. The sheriff submitted to the Court whether this surplus was. applicable to the plaintiffs’ execution.
    The presiding judge held that the money in the sheriff’s hands was applicable to this execution, and ordered the rule to be made absolute; and from this decision there was an appeal on the grounds :
    1. That the plaintiffs’ execution had no lien on the negroes, the condition of-the mortgage being forfeited before execution lodged.
    2. That the sheriff sold as the agent of the mortgagee, and not in an official character, and any surplus remaining in his hands was in strictness due from the mortgagee to Ruff, and subject to his order.
   Harper, J.

We are of opinion that the decision of the presiding judge must be reversed. Certainly the plaintiff’s execution had no legal lien on the slaves included in the mortgage. They were, at all events after condition forfeited, the legal property of the mortgagee, Harrington, and if the sheriff had sold them under execution subject to his mortgage, he might have recovered them of the purchaser, in detinue or trover. Nor had the execution any lien on the surplus of the money produced by the sale of the negroes. If Harrington himself had sold them, how could the execution have reached the money in his hands, or if he had taken a note to himself, how could that be reached ? But the case is essentially the same, as the money was received and the notes taken by his agent. The question whether money may be the subject of levy was considered, though not decided, in the case of Summers v. Caldwell, 2 N. & M’C. 341. The Court in that case refused to compel the sheriff to pay over to the plaintiff money which he had collected for him on execution, which the sheriff claimed to apply to another execution in his office against that plaintiff. It is said that the interference by rule is discretionary with the Court, and that was a case in which the parties should be left to their remedy by action. I have no doubt but that the Court may compel a sheriff to apply to executions monies which come into his hands officially ; as where he collects money on an older execution, and a surplus remains, he will be compelled to apply it to the satisfaction of younger executions in his hands. But in this case the money did not come into his hands officially. He did not receive it as sheriff, but as'the private agent of Harrington, to whom alone in legal strictness he was answerable for it. if it had been paid over to Harrington, the defendant might have recovered it of him by a proceeding in equity, or perhaps by an action for money had and received. I do not think it necessary to inquire whether Súber could maintain any action on the assignment, either against Harrington or the sheriff, nor would it be proper to do so. Súber is not regularly a party to the present proceeding. The object of the proceeding by rule, is not to determine contested rights, but to compel the officer to do his duty, and the disposal of this fund is no part of the sheriff’s official duty. If Súber has any rights, he must prosecute them as he may be advised.

Pope and Fair, for the motion.

Dunlap and Summer, contra.

The motion is granted.

Johnson & O’Neall, Js. concurred.  