
    Robert Martin vs. John Bowie; Wm. Bowie vs. Same; J. S. & L. Bowie vs. Same.
    A creditor who has obtained Judgment for the penalty of a bond, given for the payment of money by instalments, has a right, in preference to junior execution creditors, to. apply the proceeds of his debtor’s property to the payment of instalments not due.
    As against other creditors, he has a right to collect the whole debt; the utmost they can ask, is, that interest shall be deducted from the instal-ments until the times they are severally to be paid.
    BEFORE O’NEALL, J., AT ABBEVILLE, APRIL, 1837.
    In the two last-named cases, the sheriff of Abbeville District was ruled to show cause why he had not paid over to them the money in his hands, arising from the property, real and personal, of the defendant, sold under the execution in the case of Martin vs. Bowie.
    
    The following facts appeared on the return to the rule; that the defendant, John Bowie, on the 26th June, 1835, executed his penal bond to the plaintiff in the sum of $26,000, conditioned for the payment of $13,219 82, in three equal instalments, viz: first, of $4406 60, on the 26th of December, 1835; second, of the same sum, on the 26th of March, 1836; and the third, of the same sum, on'the 26th of June, 1836, with interest from the date of the bond.
    On this bond, the defendant, on the 22d of July, 1835, confessed judgment before the clerk, for the penalty, and an execution was issued and lodged in the sheriff’s office on the 9th of January, 1836. All of the debt, except the last instalment, and perhaps some arrears of interest, had been otherwise collected before the levy of the execution, on the 16th of April, 1836; under which the defendant’s estate, real and personal,' in Abbeville, was sold, and the proceeds came to the hands of the sheriff, before the last instalment on the bond was due. William Bowie lodged his execution on the 10th of May, 1836, and J. S. & L. Bowie, their execution on the 21st of May, 1836, Upon these facts, the judgment of the Court was demanded by William and J. S. & L. Bowie, whether they were not entitled to the proceeds in the hands of the sheriff, inasmuch as their executions were lodged before the last instalment of the defendant’s bond to Martin fell due?
    His Honor stated that it would be enough to say, that on a rule against the sheriff he could not look behind the judgment. It fixed the amount the plaintiff was to receive under the process of the Court.
    But independent of this answer, he was satisfied, after much reflection, that the plaintiff, under a judgment on a penal bond conditioned for the payment of a debt due by in-stalments, is, as against other creditors, entitled to collect and hold the whole debt. The utmost they could ask from such a creditor, would be that he should receive his instalments not due, reduced by the deduction of interest until the time they severally were to be paid.
    The only case which he had been able to find having any analogy to this oase was that of Van Wide vs Montrose, 12 J. B. 350, in which it was held that on a judgment on a bond for a penalty, the plaintiff, by his execution, cannot collect more than the sum mentioned in the condition of the bond, with interests and costs. ' According to its principle, the Court here was only to see that Martin collected no more than his debt, interests and costs. This was all which is attempted to be done.
    He therefore thought that the junior execution creditors, William Bowie and J. S. & Langdon Bowie, had. no right to the funds in the hands of the sheriff; and discharged their rules..
    William Bowie and J. S. & L. Bowie appealed, and moved to reverse the order:
    * Because the sheriff cannot apply money to an execution which the plaintiff in such execution cannot enforce, to the injury of other creditors, who have junior executions.
    
      Wardlaw, for motion.
   Curia, per O’Neall, J.

In these cases this Court is satisfied with the decision below. To the reasons assigned below, it may be added, that to allow the junior executions to have the proceeds of the sale of the defendant’s property in the bauds of the sheriff, would defeat the lien of the plaintiff’s (Martin) judgment and execution, Such a result would be illegal and unjust.

The judgment and execution is for the penalty, and the plaintiff has the right to enforce his remedy, until he be paid the amount conditioned to be paid. When this is done he would be compelled to enter satisfaction, and then the junior executions would be entitled to come in, but not before.

The motion is dismissed.  