
    M. Thomas vs. John Aitken.
    The sheriff is not guilty of a contempt, in refusing to pay over money to the plaintiff in execution, when he has been notified of the pendency of proceedings both at law and in equity, to set aside the judgment as fraudulent, under which the plaintiff claimed.
    Nor will the Court, on a rule against the sheriff where a complex question of fact is involved, undertake to decide upon the rights of parties claiming the money.
    Though an attachment against the sheriff is refused, the plaintiff in execution may, nevertheless, recover the money from him by action, if he is legally entitled to it, and the sheriff has refused to pay it over.
    BEFORE RICHARDSON, J„ AT CHARLESTON, JANUARY TERM, 1838.
    The sheriff was ruled, to show cause why he did not pay the plaintiff the money collected on this execution. He returned, 1st. That since the levy, on the effects of John Aitken, certain foreign attachments against the said John Aitken, had been filed in his office. 2d. That there was a suit against him and others, pending in the Court of Equity, touching the validity of the judgment in the case. 3d. That there was a suggestion of fraud filed, by the plaintiffs in attachment, to set aside the judgment.
    His Honor overruled the causes shown, as sufficient to detain the money in the hands of the sheriff, and made the rule absolute. Whereupon, the sheriff’s counsel moved, that the rule should be absolute, only in case the plaintiffs in attachment did not give security, &c., to indemnify, &ci; which condition was rejected by the Court, no sufficient ground being offered to deny the plaintiff the money which the sheriff had collected.
    From this order, the sheriff, in behalf of Hugh Blair & Go., appealed, and moved that the same might be reversed, or vacated, on the following grounds:
    1st. That a suggestion having, by leave of the Court, first had and obtained, been filed by the plaintiffs in attachment, to set aside the judgment and execution of the said M. Thomas, for fraud, which suggestion is yet pending, the Court ought not to have ordered the fund, the right to which was the very matter to be decided by the trial of the suggestion, to be paid over to one of the parties to the suggestion, before the same was tried, or otherwise disposed of.
    2d. That the order, granting leave to file the suggestion, was a suspension of the plaintiff’s right to require payment of the fund to her, on her execution, and the utmost that she could require was, that the plaintiffs in attachment should give security to indemnify her; which security the plaintiffs offered to give, and to submit to an order for that purpose.
    Bailey, Dawson and Brewster, appellant’s attorneys.
    
      O. M. Smith and Hunt, contra.
   Evans, J.,

delivered the opinion of the Court.

This case is to be taken in connection with the case of Hugh Blair & Co., vs. M. Thomas, and reference is made to-that case for the facts connected with this. The monejr which the sheriff was ordered to be attached for not paying-over, arose from the sale of Aitken’s property under the plaintiff’s execution: before the sale, but after the lodging the fi. fa., sundry attachments were levied on the same property, and there was a controversy among Aitken’s creditors who should be paid. The 'sheriff declined paying over the proceeds of the sale, because certain proceedings were pending, and still are, both in the Court of Equity and in the Court of Common Pleas to set aside as fraudulent, the plaintiff’s judgment and execution. The end of those proceedings would be to a great extent defeated, should the plaintiff, who resides in Pennsylvania, get possession of the money. There was no injunction or order impounding the money -in the sheriff’s bands, but be bad notice of the proceedings, and the bill prayed an injunction against him, both at law and in equity. Under these circumstances, ought the sheriff to be attached for a contempt, because be has not paid over the money to the plaintiff? It is altogether a mistake to suppose that the Court will, on a rule against the sheriff, settle a complex question of who is entitled to the money in the sheriff’s bands. The rights of parties not before the Court are not affected by the decision; the sheriff must pay the money at bis peril to those who are legally entitled; and it is no protection to him, if be pays it wrongfully, that be was ordered to be attached unless be paid the money. He who is legally entitled, and was no party before the Court, may recover in an. action, notwithstanding the order; as was settled in Atkinson vs. Durant, 2 Bailey, 18: by refusing the attachment the Court does not decide that the party is not entitled to the money; it merely refuses to punish the sheriff by imprisonment. The party is left to bis remedy by action, which is very ample, and subjects the sheriff to the payment of- fifty per cent, over and above the plaintiff’s demand, if he does not pay within ten days after it is demanded. Upon the facts stated, this Court is of opinion there was no sufficient reason to punish the sheriff by attachment, and a motion to reverse the decision of the Circuit Court is granted. 
      
       See preceding page.
     