
    
      Sally Reid, for H. A. Jones, assignee, vs. Johnson Ramey, sheriff.
    
    Money in the sheriff’s hands is not subject to the lien of an execution ; and though, under certain circumstances, he may seize or appropriate it, yet this must be done before the rights of third persons have interposed, and while he has authority to act under the execution.
    
      Before Frost, J. at Abbeville, Fall Term, 1845.
    The report of his Honor the presiding Judge is as follows.
    “Sally Reid had brought two actions against Lipford &, Shoemaker. In one suit, verdict was rendered for the plaintiff, for $83,22, and execution entered in the sheriff’s office. The execution was assigned the 28th October, 1843. In the other suit, verdict was for, the defendants, and an appeal taken. In this case judgment was entered by the defendants against the plaintiff for the costs of suit, including the clerk’s and sheriff’s. On the 25th October, 1843, while the appeal was pending, the amount of Sally Reid’s execution was paid to the defendant. Before notice of the assignment of the execution to H. A. Jones, the defendant, by entries in his books, applied the sum received towards the payment of the .costs due to him on the execution against Sally Reid, which was still under appeal. The appeal was dismissed before this action was brought. Soon after the assignment, notice of it was given to the defendant, and payment of the amount received demanded by the assignee.
    “It was ruled, that on notice of the assignment and demand, the defendant was liable to pay to that execution the sum he had received in satisfaction of it, and could not apply the money towards payment of the costs due to himself under the execution against Sally Reid. A decree was rendered for the plaintiff.”
    The defendant appealed, on the following grounds.
    1. That there being a subsisting execution, (though lodged to bind pending an appeal) in the sheriff’s office against Sally Reid, when the sheriff received the amount of the verdict in her favor, the sheriff had a right to retain the verdict, to be applied to the execution.
    
      2. Because the present suit being commenced after the appeal had been dismissed, the execution against Sally Reid had active energy, and the sheriff was bound to levy on the amount of the verdict paid to him.
    
      Thomson, for the motion.
    
      Wilson, contra.
   Curia, per Frost, J.

In Summers vs. Caldwell, 2 N. and McC. 341, it was held, that the plaintiff has an interest in money collected by the sheriff under his execution, of which the court can take notice, and order it to be paid over to an execution against him. But such order is matter of discretion. The rights of third persons will be always respected, when any such claim shall be interposed. If it appears that anjr other person has a legal, or even an equitable, claim to the money, the court ought not to interfere in this way. Means vs. Vance, 1 Bail. 41.

In this case the execution against Sally Reid, to which the defendant applied the money levied under execution at her suit, was suspended by an appeal. No levy could have been made under it, nor was the sheriff authorized, at the time he did, to apply the money of Sally Reid towards satisfaction of it. When the plaintiff demanded payment of the money in satisfaction of the execution of Sally Reid under which it had been made, the defendant was liable to the demand. The execution had then been assigned; and the right to receive satisfaction from the sheriff was vested in the assignee. That right could not be divested by the subsequent dismissal of the appeal. The general rule is, that the assignee shall be protected against any dealing between the debtor and assignor after notice to the former, or any set-off acquired after such notice.

The motion is dismissed.

Richardson, O’Neall, Evans and Butler, JJ. concurred.

Wardlaw, J.

I assent to the result, but reserve my opinion upon the question whether money in the sheriff’s hands is subject to the lien of an execution. It has been decided, that under certain circumstances it may be seized or appropriated by the sheriff.  