Tbe opinion of tbe Circuit Court, in ordering tbe sum of one hundred dollars to be paid over to Fearle & Lewis, seems to bave been based upon tbe fact tbat tbis sum was paid to tbe sheriff on tbe same day on which the assignment to Shephard was made, and tbat, consequently, tbe lien of the execution attached before tbe assignment could transfer the property. Wo presume, tbat if tbe assignment had been held void, because of fraud, the court would bave directed tbe entire amount of tbe execution to bave been paid over.
Tbe case of Turner v. Tindall, 1 Cranch. 42, seems to bold tbe doctrino, tbat money in tbe bands of tbe officer is not subject to levy, as it is in the custody of tbe law, and not tbe property of the plaintiff in tbe execu' tion. ' Judge Marshall, however, observes tbat it is the duty of tbe officer to seize it tbe moment it is paid over into tbe hands of the creditor, and as tbe payment, -under these circumstances, would be a vain ceremony, no court would hesitate to justify tbe payment in satisfaction of the second execution, or if the money was brought into court, to direct it to bo so paid, unless tbe legal and equitable right was in some third person. -
Tbe officer did right, we think in waiting for the directions of the court, and tbe court was clearly authorized to direct the whole amount to be paid over unless tbe assignee, Shephard, bad a legal and equitable right to such proceeds. Who then is to decide this ? No jury was demanded in this case and tbe court was called upon to determine tbe motion.
If the court had ordered tbe entire amount of tbe execution of tbe plaintiff to have been first paid, we should not bave considered such order erroneous.
What were tbe facts ? After an execution from a justice bad been returned nulla bo-ria, and the transcript was filed in tbe Circuit Court, and an execution put in tbe bands of tbe sheriff, and on the very same day when tbe defendant in the second execution had paid over to tbe sheriff one hundred dollars, tbe defendant, Spicer, who was insolvent, as tbe return of tbe constable showed, assigns the judgment over to Shephard. No money is passed, but a previous indebtedness is pretended. If ever there was a fraud in law, a prima fade fraud, tbis would seem to be one.
But whether the assignment was fraudulent or not, if tbe property was in tbe bands of the law, and not the property of tbe plaintiff in tbe execution, and therefore not subject to be levied on, it ought surely to be held equally out of tbe reach of an assignment by tbe plaintiff in the execution. The only circumstance tbat kept tbe money from 'the plaintiff’s execution was, tbat it was in tbe hands of the sheriff, and under our statute could not even be garnisheed. Shall the defendant in tbe execution, under these circumstances, be permitted to withdraw tbis amount from tbe operation of tbe execution and put it in tbe hands of even a bona fide creditor ? If be can, it is a manifest injustice to the vigilant creditor. Tbe law which is said to favor the vigilant would no longer do” so.
We think tbe Circuit Court was right in disregarding tbe assignment so fin-as tbe execution creditor was concerned. As no complaint is made of the court because of limiting bis order to tbe one hundred dollars, judgment is affirmed.-