
    Atkinson, et als. vs. Cooper, et als.
    
    1. A court of law has a right, in a summary wqy, to direct the application of money which has been paid into court.
    2. The plaintiff on record has a legal right to receive money on an execution in his name, and a payment of it to him by the sheriff, is a good discharge.
    3. Where “the plaintiff on record, directs the sheriff to appropriate monies collected by him on an execution in the plaintiff’s name, to the satisfaction of an execution in the sheriff’s hands against the plaintiff, and the sheriff, in pursuance of such direction, without any knowledge that the plaintiff had disposed of his right to control such execution or the proceeds thereof, does appropriate the money to the satisfaction of such execution, and returns such execution satisfied: Held by the court, that such monies are beyond the reach of the court, and that the court has no power to order the return to be vacated, and the money paid to the equitable owner.
    Sackfield Maclin received for collection, notes against James D. Cage & Co. for the sum of $4,270 12, which were given to Wolsey .& Walsh, Bryan, Roadman & Heilin, Miller & Cooper, and Fosset & Jones, merchants of Philadelphia.
    Maclin having authority to receive notes from the firm of Cage & Co., to be held as collateral security for the payment of the claims in his hands, and to collect those notes and appropriate the proceeds to the satisfaction of them, called upon James D. Cage, with the view of getting notes. Cage deposited in his hands, notes to the amount of the claims against him, and amongst others, a note upon Cress & Mull, in favor of Lycurgus Cage, as administrator, for the sum of $2,487 55, due 1st January, 1839. , Lycurgus Cage, one of the firm of James D. Cage & Co., received a portion of the sum due on this note, and Ma.clin instituted an action against the administrators of Cress, and obtained a judgment against them for the balance, to wit, for the sum of.$1,415 96, at the October term of the circuit court of Fayette county, 1839. This note was put in Maclin’s hands with the assent of L. Cage, and with the distinct agreement, that Maclin should collect it and appropriate the proceeds to the satisfaction of the claims he held against James D. Cage & Co. The action was instituted in the name of L. Cage, administrator, and nothing appeared of record to show that L. Cage was not the equitable as well as the legal owner of the judgment which Maclin recovered on the note. An execution was issued on this judgment, and placed in the hands of Atkinson, sheriff of Fayette county, who collected the money due thereupon, and L. Cage demanding the proceeds, Atkinson, without having any doubt of the right of Cage to receive the amount, took the receipt of Cage for the sum of $1,212 80. Atkinson having an execution in favor of Montelius & Fuller against L. Cage, administrator, and H. Locke and James D. Cage in his hands, appropriated about $900 by the direction of L. Cage, to the satisfaction of it, and endorsed the said execution “satisfied,” gave-L. Cage a receipt in full against the execution of Montelius & Fuller, and paid the balance of the sum specified in the receipt to Cage. This was done without the consent or knowledge of Maclin, or of those for whom he was acting.
    So soon as Maclin was informed of the fact, to wit, at the October term of the circuit court for Fayette county, he moved the court, that the return of satisfaction made by the sheriff upon the execution of Montelius & Fuller, be stricken out, and the monies in the sheriff’s hands be paid over to the plaintiffs.
    Maclin, on the hearing of the motion, was introduced as a witness; his testimony was objected to by the defendants, and the objection overruled, and he proved the facts above set forth.
    The circuit court, Barry, judge, presiding, ordei’ed that the return of the sheriff be stricken out, and that the money remaining in the hands of the sheriff be paid into court, and that it be paid to the plaintiffs in this motion.
    Montelius & Fuller, by their agent, and N. Atkinson, resisted the motion, and appealed from the judgment to the supreme court.
    
      A, Miller, for plaintiffs in error.
    Question 1st. Have the plaintiffs a right to make this motion, they not being parties on the record?
    The act of 1777, ch. 8, sec. 10, p. 666, authorises the person at whose suit the process issues, to make a motion against the sheriff for not rendering money collected for him. By this act, the motion had to be made in the name of the person at whose suit the money was collected. The motion could not be made in the name of the clerk or witness, although the record shows they were entitled to their fees.
    The act of 1807, ch. 60, sec. 9, p. 156, authorises the court to render judgment on motion of the person who has recovered money by judgment or decree, where the same has been paid to the clerk, and he refuses to pay it over.
    
      The act of 1824, ch. 16, sec. 1, p. 157, gives the clerk a motion against the sheriff for fees collected on execution issued from his office.
    Sec. 2. Gives witness a motion against sheriff and clerk, who has 'collected his fees for attendance.
    2. Who, by these acts, are entitled to judgment by motion? It is the persons whom the record shows to be entitled to the money.
    In cases of priority of executions, the court will decide the right 'of the parties of record, though in different suits and courts. Johnson vs. Ball, Gainer and others, 1 Yer. Rep. 291.
    But there is no case that can be found, where the court has noticed in this summary way the right of individuals who are not claiming as parties to a suit; persons whose demands have not been established by the judgmentof a court. The plain tiffs in this motion have no judgment. Their claim against Cage never has been judicially established. Cage has a right to litigate it.
    This motion for the money appropriated by the sheriff to the satisfaction of Montelius & Fuller’s^, fa., is made upon the ground, that they have a right to follow that money, or on the supposition that Lycurgus Cage had no right to receipt the sheriff for the money collected, and, therefore, the sheriff should pay it to them.
    The motion can be only sustained by the person who has the legal right to the money. Turner vs. Eendatt, 1 Cranch’s Rep. 117.
    Money may be taken in execution, if in possession of the defendant. Tbid. and 1 Peters’ Con. Rep. 260.
    Money may be taken in execution, the instant it shall be paid into the hands of the creditor; and it then becomes the duty of the ■officer to seize it. Ibid. 265.
    Though the writ command the sheriff to bring the money into court, yet the sheriff may pay it over to the plaintiff, unless enjoined from doing so. Ibid. 226.
    After the marshal is commanded by the writ, to bring the money (proceeds of sale) into court, he may pay it to the plaintiff in execution, if he please, and this will be a sufficient return of the writ. Ibid. 1 Peters’ C. C. R. 241.
    Money when collected by the sheriff, is not the property of the plaintiff till paid over to him. 1 Peters’ C. R. 264.
    3. Then, what right had the plaintiffs in this motion, to the money paid on Montelius & Fuller’s fi. fa.?
    
    
      
      H. G. Smith, for defendants in error.
    There are two questions in this case.
    I. To whom belongs the money in dispute?
    2. The power of the court to direct the payment to plaintiffs?
    As to the first: — 'The money still remains in the hands of the officer of the court; is not actually paid to Montelius & Fuller; it is in court.
    As between L. Cage and the plaintiffs: — The right of plaintiffs is clear. For the interest of L. Cage was only nominal.
    As between plaintiffs and Montelius & Fuller, the right of the plaintiffs is equally clear. L. Cage having no real interest in the money, can dispose of nothing. An attempt to dispose, avails nothing. To be effectual against the plaintiff’s rights, the attempt must be actually executed into accomplishment. This has not been done; the money is not actually paid over; it is in court.
    But if the money had been actually paid over to Montelius & Fuller, the plaintiffs could pursue it into their hands. A trust fund may be pursued and recovered, except when it gets into the hands of a bona fide, receiver or purchaser for full consideration paid on the faith of the fund. 5 Paige, 642, 640.
    As to the plaintiffs, this is a trust fund ,• Cage the trustee ; M. <fc F. paid no consideration upon the faith of this fund, and, therefore, will not be protected against the claim of the plaintiffs, if they actually had received the money.
    2. The power of the court. The money is in court. What shall be done with it?
    The court has power over it; it will direct it to be paid to the party having right, or direct an interpleader. 3 Peters’ C. C. R. 445: the Ariaden, 1 Peters’ C. G. R. 269.
    Assignees of defendants receive money from sheriff; sheriff is protected. .
    If the court discover that the party applying for money has an equity upon it, they will either direct its payment to him, or direct an interpleader. See, 5 Bos. & Puller.
    In 5 John. Rep. though the court refused the motion of the applicant for the money, yet they said in a clear case, they would interfere.
    When money had been paid by an order of the district court, under an erroneous construction of an act of Congress, before a final order of the circuit court, in which the suit was dependIng, the circuit court granted a rule on the person who had received the money, to return it. The Ariadne, Pet. C. C. R. 455; cited, 3 Pet. Dig. 83.
    The marshal having made the money on an execution, may pay it to plaintiff, and this will be a sufficient return. The court will not interfere in a summary way to distribute money, the proceeds of an execution, unless the same is paid into court. Wortman vs. Gonygham, 1 Pet. 0. C, R. 241.
    Granting this motion jeopards M. & F.’s right under their execution, this is a risk all men run. But no such risk is here. A court of chancery would not énjoin their execution when apprised of the action of the circuit court upon it.
    An agent may be a witness for the principal, though in discharge of a liability existing, in case principal do not recover in the action. Norris’ Peake, 240.
   GheeN, J.

delivered the opinion of the court.

An'execution for $1,415 96, in favor of Lycurgus Cage against Mull and Trent, administrators of E. Cress, issued from the circuit court of Fayette county, returnable to the February term, 1840. of said court. Said execution came to the hands of the plaintiff in error, Atkinson, who made the money thereon, and on the 12th day of February, before the return day of said fi.fa., and without any knowledge that any other person had a claim to said monies, he took the receipt of said Cage for $1212 80, part of said execution, of which he paid over part to Cage, and $900 he retained by the direction of Cage, to be applied to the satisfaction of an execution, then in the hands of said sheriff, in favor of Montelius & Fuller against said Cage, and James D. Cage and Harrison Locke, for that sum.

■ On the same day (12th February, 1840) he endorsed his return on said last mentioned fi, fa. “satisfied by Lycurgus Cage.” The said executions were returned into court; but before the sheriff had paid to Montelius & Fuller the money on their execution, as dixectedby Lycurgus Cage, the defendants in error moved the court to require the sheriff to erase his return of “satisfied” from Montelius & Fuller’s fi. fa. and to pay said $900 to them, having proved that they were beneficially interested in thefi.fa., in favor of Cage against the administrators of Ci’ess, and that said Lycurgus Cage was only a nominal party. The plaintiffs in error resisted the motion, but the court ordered the erasure to be made, and the said monies to be paid to the defendants in error. From this judgment the sheriff, Atkinson, and the said Montelius & Fuller, prosecuted this appeal in error.

There is no question, but that the court has aright to direct the application of monies which have been paid into court. And this it will do upon motion, or will directa bill of interpleader. But unless the money be paid into court, it will not interfere in a summary manner to direct its application.

The only question in this case then is, whether this money is in • court in such a way as to give it authority to act in the matter.

It is not disputed but that Lycurgus Gage had a legal right to receive the money on the execution in his name, and that a payment of it to him, by the sheriff, was a good discharge to that officer. This being true, it would follow without dispute, that had the entire sum of $1212 80 been counted into the hands of Lycurgus Cage, and then $900 had been handed back to the sheriff by him in discharge of Montelius & Fuller’s execution, the defendants in error would have had no claim to it. But what legal difference could this ceremony have made 1 If Cage had a legal right to receive the money, and his receipt for the $1212 80 is a good discharge to the sheriff, it follows that he had equally a legal right to direct its application; and having done so, it was a discharge of the execution, to the payment of which he had directed the sheriff to apply it. If that execution was discharged in point of fact, and in point of law, on the 12th of February, 1840, it could not after-wards be enforced against Cage’s co-defendants, by proving that he had violated a trust by the application, to its payment, of a trust fund in his hands.

Nor is it disputed, but that the sheriff acted honestly in this whole transaction; and yet if this motion prevail, he cannot be protected from a motion by Montelius & Fuller. His return of “satisfied” chai'ges him, and renders him liable; and if in obedienc' to the court, that were erased, he would be liable to a motion failing to make return.

We, therefore, think this fund is placed beyond the reach ,ne court, and that legal rights have been created that we e no power to effect by any order we can make; that the r y is not in court, but has been applied to the payment of th'. -cution of Montelius & Fuller, in a way the parties had a rigb ■, q law, to apply it, at the time it was done, and that we cannot not now disturb it.

If the only question was between Cage, the nominal plaintiff in thi? fi. fa., and the defendants in error. as to them the money would be in court, and the court would direct its payment to those beneficially interested; but the case is so entirely changed by the transactions in relation to the other execution, that the money is wholly beyond our reach. Reverse the judgment.  