#### Yell as Gov., use Smith vs. Lawson.

A sheriff cannot be sued for the proceeds of perishable property, taken by attachment, and sold by order of the court, until the court shall make an order upon him, after final judgment", in the attachment suit, to pay the money to plaintiff.

Writ of Error to the Circuit Court of Pulaski County. ..

This was an action of debt by Yell as Governor of the State, for the use of Smith, against Lawson, as sheriff of Pulaski county, upon his official bond, determined in the Pulaski circuit court, in December 1845, before Clendenin, judge.

The declaration assigned for breach of the bond, in substance, that Smith sued out an attachment against a steamboat, by name: that the boat was attached by Lawson, as sheriff, and under an order of court sold as perishable property; that afterwards the master and owner of the boat confessed judgment in vacation before the clerk of Pulaski circuit court, in favor of Smith, and that Lawson had not paid, out of the proceeds of sale, the amount so recovered. There was no averment in the declaration that he had been ordered to do so by the court.

The defendant demurred to the declaration, upon the grounds that the judgment confessed in favor of Smith before the clerk was a nullity; and if the judgment was valid, it was not alleged that Smith had procured an order of court for Lawson to pay the judgment out of the proceeds of the sale of the boat. The court sustained the demurrer, and plaintiff brought error.

HEMrsTEAD, for the plaintiff.

*353Pike & Baldwin, contra.

The demurrer was properly sustained. First, there is no judgment set out. Clerks have no judicial pow« cr. By the constitution all judicial powef is tested in the courts. To render judgment is certainly a judicial act, if any thing can be. Second, the statute .expressly provides that suits by attachment against boats shall proceed in all respects as other attachment suits. Execution cannot issue, nor money be paid over until bond is given as provided by section 41 of the chapter on attachments. If the suit had been against the master and owner by name, and he had entered his appearance* the bond might not have been necessary; but being against the boat, it is required, because it may turn out that the person who confessed judgment was not the owner. Third, the sheriff certainly was not bound to' pay over the money until execution issued, or at least until an order of the court. Until one or the other no right existed in him to pay to any one. When he sold he held the proceeds subject to the order of the court.

As the declaration does not show that any bond was given, or that any execution issued, or any order was made for payment, it shows no cause of action at all.

Oldham, J.

The demurrer to the declaration was properly sustained by the court below. The sheriff is required by law to retain the proceeds arising from a sale of perishable property held under attachment, made by order of the court during the pendency of the action, “subject to the order of the court after the final judgment in the action.” Rev. St. ch. 13, sec. 40. The declaration does not show that the court ever made any order upon the subject, and until the circuit court shall make an order inquiring him to pay the taoney to the plaintiff, he cannot sustain his action against the sheriff for it. Affirmed.