dissented:
I regret I am compelled, in this case, to differ in opinion from the Court; but a sense of duty requires me to dissent from some of its views. The execution in favor of Williams, while in possession of the sheriff, it is true, was destroyed by fire ; but this does not affect the question. The execution was still in full force, and its lien and priority were unimpaired. The lien acquired by this execution on the property of the defendant in fieri facias was, I admit, defeated by the sale ; but its priority over the junior writ was still subsisting and unaffected as to their respective rights. The fact that the sale was made under the junior execution did not defeat or affect this priority over the proceeds of the sale, which stood in lieu of the property. No act of the sheriff could defeat it. It was the duty of that officer to look to the outstanding executions, to determine to whom the money belonged ; and the time each execution came to his hands determines their respective priorities.
Had the sheriff retained in his hands, as it was his duty to have done, the proceeds of this sale, to be applied to the senior execution, it would, in my opinion, have been a sufficient answer to any rule or action against him by the *141junior execution creditor — money must be paid on executions according to their priorities. 2 Watt’s Reports, 303.
The sale in this instance was valid and, consequently, the lien of Williams’ execution was gone, because the law here interposes and protects the rights of an innocent purchaser. See 10 Watts’ Reports, 212. And this is the only reason which can be assigned why the sale under a junior execution is valid. One of the great objects designed to be effected by the statute 29th Charles II, was to secure the possession of purchasers under execution. 1 Term Reports, 729.
The levy of the junior writ did not in any respect affect the priority of the senior, and the only effect of the sale was to divest the defendant in execution of the title, and vest it in the purchaser. If the elder execution creditor attempted to assert his previous lien on the property, it then became a question with him and the purchaser, and the law favors the latter — not by reason, however, of the junior writ having acquired any priority by virtue of the levy and sale; but, when the creditor claims the proceeds of sale, the question is then between him and the sheriff; or, if the junior creditor interposes, still the priority of the claim determines the then respective rights. Numerous authorities in England and in this country could be referred to which show that where several executions are levied on the same property, and it is sold under all, the proceeds of sale are always ap.plied to the senior writ. If the doctrine be true, as is asserted, that the levy and sale of property under a junior execution, entitles it to the proceeds, then the principle in all these authorities is false, and the executions should be satisfied pro rata out of the fund raised by their joint levy and sale. But the principle in these cases is true, and is a necessary consequence from the statute giving priorities to executions — that no matter under what writ the salé is made, the proceeds of right belong to the senior execution. I do not understand the authorities referred to in 1 Term Re*142ports, 729 and 4 East, 523, 545, as asserting any other principle than that the sale is valid, though under the junior writ; a doctrine which no one questions.
But the American authorities, so far as I have had time to examine them, decide on principle “ that it is wholly immaterial upon whose execution the sale was made ; the execution first in the hands of the officer is entitled to the proceeds of the sale.” 6 New Hampshire Reports, 73 and the numerous authorities referred to. 3 Watts & Sergeant, 438. 2 Hawks’ Reports, 309. Also, 5 Cowen’s Reports, 396. In the last authority, it is true, the levy was under the first execution, but this did not give it any greater preference than the law had previously given it, and the Court decided that the proceeds of sale of right belonged to the senior writ, though made under the junior.
If, then, it be true that the execution which first comes into the hands of the sheriff has a priority to the proceeds of sale, why compel the execution creditor to resort to his action against the sheriff to recover that which is in the bands of the latter, and which he has no right to control ? The principle is not altered by his having paid it out; for whether a fictitious or a real payment, he did it voluntarily after notice by the attorney of Williams, and, consequently, with a full knowledge of his liabilities. The money raised on execution is always considered in the custody of the law, and the sheriff, being the ministerial officer of the Court, should, under its order and direction, make the proper application of it. Why allow this officer a discretion in this matter which the law does not warrant, but in every instance condemns ? I fully accord with the Court in the case reported in 1st Strobhart’s Reports, 24, that it belongs to the Courts to advise and command its own officers — to dispose of the funds collected under its process — to decide the conflict of suitors as to such funds, and that in the exercise of these functions its power is complete. Where a case ari*143ses in which equitable rights are involved and it is doubtful who is entitled to the money, the Court may, in its discretion, forbear a summary order, and leave the claimants to litigate their rights by suit.
In this case, it is no answer to say, that the sheriff is liable by suit to the injured creditor. So he is, where he refuses to make a return; and it cannot be doubted but that it is competent to the Court to compel him by attachment to do his duty in this respect. Without this summary remedy in the Court, its officer is placed above and beyond its control, and execution creditors can only recover their money at his option and pleasure. If it is conceded that the Court has the power to order a return of executions, the principle-itself is conceded, and the Court can direct the application-of the money.
In this .case, no action for a false return could be maintained ; the return of the sheriff, as far as it went, was> true ; it was not controverted. Williams may have .a right of action against the sheriff for neglect of duty, but I cannot see the propriety of compelling him to resort to an action at law against the sheriff and his securities, when, in my opinion, he has, through the aid of the Court, an efficient and summary remedy. I am not aware of any principle of law which denies to an execution creditor the remedy allowed in this case by the Court below. The power is incident to every Court, and its exercise is highly salutary, and prevents tedious and protracted litigation. The practice which has prevailed in the Courts of the State, I believe to be sound in principle, and its obvious utility no one doubts. A contrary practice will, I fear, make an execution, which is the end, but the beginning of a law suit.