
    THOMPSON against PIERSON.
    This court may not decide whether surplus money of sale of land on first fi.fa. shall be paid to defendant, or to other execution creditors 
    
    A rule had been obtained some years ago, calling on Isaac Pierson, Esq., late sheriff of Essex, to show cause why he should not bring into court the surplus money arising on the sale of a house and lot at Newark, belonging to the defendant, in payment of [743] the execution of the plaintiff. The facts were, that Thomas Ward, Esq., in 1807, obtained a judgment in this court, against Caleb Pierson, the defendant, and took out execution, and put it into the hands of Isaac Pierson, Esq., then sheriff of Essex, who levied on a house and lot in Newark. This execution lay in the hands of Sheriff Pierson, until 1811, when several judgments were obtained against the same defendant, one of which was by the plaintiff in this suit; executions were taken out on these judgments. In the meantime, Sheriff Pierson had gone out of office; and these executions were put into the hands of Nathan Squier, Esq., the then sheriff This drove Sheriff Pierson to sell under the execution in his hands, and the property not being divisible, he sold the whole; on which, there remained in his hands, [*] a surplus of $900. Squier gave notice to Sheriff Pierson of the executions in his hands, and was present at the sale, and cautioned Sheriff Pierson not to pay over the surplus to the defendant’s order; notwithstanding which, Sheriff Pierson paid the surplus over to the order of the defendant; and by that means, shut out the subsequent executions altogether. The defendant was insolvent ; on which, this rule on Sheriff Pierson was taken, on the motion of the plaintiff, Thompson.
    This question being argued by Wall, for the plaintiff, and I. H. Williamson, for the sheriff, the court took time to consider of it, and at this term,
    
      
       This case was overruled at September Term, 1833. 8 Green’s Rep 90.
      
    
   Kirkpatrick, C. J., and Eossell, J.

Were of opinion, that this court had not any control over the surplus money; but that the judgment creditors must be left to their remedy at law, if they had any.

Penexngton, J.

After stating the facts as above. The question is, whether this court has any control over the surplus money arising on this sale ? On the best consideration I have been able to give this subject, I am of opinion that it has. Judgments create a lien on the land. There is, however, an advantage given to a vigilant judgment creditor, in suing out and delivering his execution to the sheriff; but the defendant has nothing to do with this. The land is sold under a writ issuing out of this court. The sheriff is an officer of the court; it is the duty of the court to watch over the execution of its judgments, to see that the sheriff acts uprightly in the execution of writs. This is not a question whether one sheriff can levy on money of the defendant’s in the hands of another sheriff, or in his own; but who is entitled to the money arising on the sale, of which, I think, the court, and not the sheriff, is to judge. If the sheriff can legally pay over to the defendant, all the money arising on the sale of the land, after satisfying the first execution, all judgment [744] liens on land, except the first, are at an end. This might be considered [*] as a hard case, on the part of the sheriff, Pierson, it did not appear from the facts stated, that he acted with his eyes open; he not only had full notice of the subsequent executions, but was expressly cautioned by Sheriff Squier, not to pay the money to the order of the defendant. Besides, I understand he is indemnified. On the whole, I am of opinion that the money ought to be brought into court, to be paid to the execution creditors, according to their priority, as far as it will go. This priority to be settled by the court.

Rule discharged.

Overruled is Stebbins v. Walker, 2 Gr. 90, 98.  