June, 1830.

#### John Washington and David Thomson v. Ransom Sanders. James Frelick and Ray Helme v. The same.

J>From Johnston.

Where a Sheriff lias raised money under several executions, and is at a loss how to distribute, the Court will, in a summary way, upon the facts stated in the return, advise how it should be distributed.

But where a Sheriff voluntarily makes an appropriation of money in his hands, to one of several executions, the Court will not, upon a rule, deprive the Plaintiff in that execution of the money thus paid him, but will leave the persons aggrieved to their action against the Sheriff.

Where A sued out an original attachment directed to the Sheriff or any Constable, and returnable to the County Court, or before any Justice, but at no certain day, which was levied by a Constable— and afterwards B sued out an attachment against the same person, and levied upon the same property, which was in all respects regular, ootained the first judgment, & issued his venditioni exponas, upon which the Sheriff returned a sale and paid the money into Court; and afterwards A obtained judgment and had execution; upon a rule to distribute the money, held—

1. That the return of the Sheriff was an appropriation of the money to the first execution.

2. That the attachment of A, being returnable at no certain day, and before no certain Court, was void.

3. That although an appearance by tlie Defendant cured many defects in the process, yet in cases of original attachments, where there was no appearance of the Defendant, both a legal seizure of the property levied on, and a due advertisement, were necessary to render the judgment valid ; and asa Constable was not, without special order, authorized to make the seizure, it was illegal, and the judgment a nullity.

These were rules obtained on the Defendant, to compel him to pay to the Plaintiffs certain monies received by him from the Sheriff of Johnston, on a writ of ven-ditioni exponas, sued out by the State Bank against Yeargain.

*344The case was, that the State Bank, by their agent the Defendant, he being surety for the debt, sued out an original attachment against one Feargain, on the 3d November, 1828, directed to the Sheriff of Johnston County, and returnable to the County Court, on the fourth Monday of the same month, which was levied by the Sheriff on the day it was issued, and regularly prosecuted to judgment at February term, 1829, from which an execution issued, returnable to May term, on which the Sheriff sold the property seized by him, and returned that it sold for the sum of $ 523 63, “ which is paid into office.”

Washington & Thomson, and Frelick & Selme had each taken out original attachments also against Fear-gain, on the 28th October, 1828, for sums exceeding % 100 — the former directed to the Sheriff, or any Constable of Johnston County, and returnable before a Justice of the Peace, or the County Court, without saying at the next term. — the latter, directed to the Sheriff, or any lawful officer, and returnable to the next County Court. Both these writs were placed in the hands of a Constable, who on the same day levied them, on the same property afterwards levied on at the instance of the State Bank. Both were also returned to the County Court at November term, advertisement was made in the State Gazette before February, and at May term verdicts and final judgments were had, and thereupon writs of wend. exp. issued to the Sheriff, commanding him to sell the property (specifying it) which was levied on by virtue of the attachment. At May term, both of the Plaintiffs gave notice to Sanders, who was the Clerk, and also to the Sheriff, that they claimed the money raised on the execution of tiie State Bank ; and one of them at that term, and the other at August term following, obtained a rule on the Defendant, as agent of the State Bank, to show cause why the money raised on that execution should not be paid to them. The Sheriff returned on each of the executions of the Plaintiffs, that *345.he had before levied upon the property at the of the Bank, and also that lie had sold it under that ex-edition, and paid the proceeds into Court at May term. The County Court discharged the rules ; the Plaintiffs appealed to the Superior Court, where, before Mabtiht Judge, the judgments were reversed, and the money ordered to be paid rateaBly to the Plaintiffs •, and from that judgment the Defendant appealed to this Court.

The cases were argued by Gaston, for the Defendant, and by Seawell ‡ Badger, for the Plaintiffs.

Ruffin, Judge.

His Honor, after stating the case as above, proceeded : If the Sheriff ought to distribute money between two Plaintiffs, or ought to apply it to one writ, and misapplies it, the person injured has his redress by action. The Court is under no obligation to ■ superintend, by this summary method, his administration. They never refuse to advise an officer who is in difficulty, and asks their advice upon facts stated by himself. And where the right of a party is clear, as against an officer, the Court will proceed by rule and attachment against its Officer, so as to prevent the defeat or delay of justice. But where a Sheriff does not apply to the Court, but of his own head does actually apply to one execution the money, which of right belonged to another, the Court will not disturb the creditor who receives the money, by laying him under a rule. The Court can assume no such jurisdiction ; for there is no distinction between such a controversy, and any other that might arise in pais. The only remedy is against the Sheriff, and not against the party. (Sandford v. Roosa 12 John. 162. Yarborough v. State Bank, Ante 1 vol. p. 25.) We cannot take the money back, after the Sheriff has paid it to the party. And an application of it to a particular execution and payment of it into Court on that execution is payment to the party, because it satisfies and discharges his judgment. Here, such are the facts.. *346for aliItoua,'!» the Sheriff does not say, that he pays the nl0,,(T on the execution of the Bank, yet be returns it with that execution, and he had no other in his hands at ^|me> That money, therefore, is beyond the control of the Court, even if the Plaintiffs had just cause of complaint against the Sheriff.

But they have not. The Sheriff acted in entire accordance with his duty. The Plaintiffs are not entitled to any thing; for their proceedings are entirely irregular and void. Washington & Thomson’s attachment was returnable before a Justice of the Peace, or the County Court, without a return day mentioned in it. It is original process, without any certain day, place, or Court, ' to which it is to be returned. In Parsons v. Lloyd, (3 Wils. 341,) it was held, that a writ of capias ad respon-dendum, tested in Trinity term, and returnable in Hilary term, omitting the intervening Michaelmas term ,* was void ; and the Court set „it aside for irregularity, and the Defendant, who had been arrested under if, maintained trespass vi et armis for the imprisonment, against the Plaintiff in it. Surely this attachment is much more vicious. It is to he recollected, that none of the defects of the process are cured by the Defendant’s appearance. It is an absolute nullity, and afforded no justification to any body concerned in it.

But there is another objection applicable to this attachment, in common with tlie other, which also vitiates it. They were directed to a Constable, and executed by him. The Sheriff is the proper officer to execute ail writs returnable to Court, unless another be appointed by special order. He is the person entrusted by the law with authority to arrest persons, let to bail, seize property and replevy it. To him the writ of vend. expo. issued to sell the estates levied on. How is he to get at them in the hands of another person. lie cannot return, to that writ, fhat the property is not. to he found, because it. is supposed to' be in his hands. But when the first seizure is made by another, he cannot have it, but *347that other. By the lawful seizure, the property it) tels is vested in the officer. How is it to be divested out „ , _ , ... or the first, and vested m the second ? It is said, that an attachment is a proceeding in rem, and that the property is in the custody of the Court, and they may order any one to sell. That is a fallacy I think. The property is in the custody of the law, and not of the Court. It is vested in the officer by the law, and he, and not the Court is to bring trover for it. The execution upon proceedings sud) as these, must therefore be inefficient, which proves their irregularity and invalidity. I do not say, that every slip in pleading, or defect of form, will ever abate an attachment, much less render the judgment' on it void, The appearance of the Defendant will cure many defects. Bat due service of the attachment is indispensable j for by that only is the Defendant brought into Court. It has been argued, that it is immaterial how, or by whom, the process is executed ; for the advertisement gives the notice to the Defendant, and that is the real service. To that I answer, first, that advertisement is only required, where the debtor is out of the State | .secondly, that the law requires both a seizure of property and advertisement. If not, why not advertise at once, as the leading process. Every man is expected to look after his property, and therefore if it be attached, that he will appear to claim and get it again. That is the principal ingredient in the service of this process. If the Defendant be a non-resident, the statute superadds notice in a newspaper, that, he may have certain and speedy information, at whose suit his estate is taken, and where and when lie may release it. If either the notice be omitted, or the seizure be void, the proceedings are irregular, and'not merely erroneous $ and the Court will set them aside at any stage of the business, or at any time after judgment. The defect is in the service of the process, which causes the Defendant not to be in Court. It is in the nature of things, that he should not be bound *348{,y proceedings, to which he is not a party. If a writ is served on John, by the name of James, it is not cured by • , , % . . - 7 , declaring against the party by his true name John ; ami ^¡ie Qourt will set the whole aside, ■“ because it is the same thing as no service.” (Doe v. Butcher, 3 Term Rep. 611. Greenslade v. Rotheroe, 2 New Rep. 132.) A Defendant never pleads that the writ is not served ; he is not put to that. If the party had appeared, then it would be different. This answers the remark, that if the Court accepts the return and acts on it, the judgment is good until reversed. The Court looks into no such things, until they are brought regularly to its notice. The Plaintiff must proceed regularly at his peril to get the Defendant before the Court; when there, each party takes care of himself, and if the Defendant appears to the process, he accepts it, but not the Court.

But if it were otherwise, and the judgment must stand until set aside, it cannot operate by relation to the illegal seizure, so as to affect third persons. In any event therefore, the Plaintiffs have no claim on the Sheriff. But I have a very strong opinion, that every step taken by the Plaintiffs was wrong, and their judgments absolutely void, because there was no cause against Feargain in Court. The judgment therefore of the Superior Court must be reversed, and those of the County Court affirmed, with costs in all the Courts.

Per Curiam. — :Let the judgment , of the Superior Court be reversed, and the rules be discharged.