RICHARDS ET AL. v. THE MORRIS CANAL AND BANKING CO.
After judgment by default had been entered, an execution was issued and placed in the hands of the sheriff; before a levy was made, the defendants were permitted to come in and plead, and proceedings on the execution were stayed by order of the court, but the judgment and execution were ordered to stand as security for the amount, if any, that might be found due to the plaintiffs on the trial of the cause ; another execution against the defendants afterwards came to the hands of the sheriff, under which he levied upon and sold the real and personal property of the defendants: It was held that the proceeds of sale.must first be applied in satisfaction of the amount which had been found due by the jury upon the trial of the issue joined in this cause and for which the excution in favor of the plaintiffs had been ordered to stand as security.
A judgment by default was regularly entered in this cause and an execution issued and placed in the hands of the sheriff. In September term 1841, upon an affidavit of a just and legal defence, a rule was granted to open the judgment, so far as to allow the defendants to plead to the merits and have the benefit of a trial, and to stay further proceedings upon the execution, until *137the further order of the court. When this order was made, the court was under the impression that the sheriff had made a levy upon the property of the defendant; and it was intended that the levy and execution should stand as security in the meantime.
In February term 1842, the issue joined between the parties, having been tried and found against the defendants, the rule of September term was discharged and leave given to the plaintiffs to proceed on their execution. In the meantime however, an execution in favor of Robert Thompson had been delivered to the sheriff, under which he had levied upon and sold the property of the defendants to the amount of seventeen hundred and twenty-four dollars and thirty cents. This money having been paid into court by the sheriff pursuant to a rule for that purpose, a motion was made for a rule on the sheriff to amend or complete his return on the plaintiffs’ execution by adding thereto a levy on the property sold by him under Thompson’s execution ; and that the money in court should be paid to the plaintiffs.
In support of this motion the affidavit of the sheriff was read, by which it appeared, that the property levied upon and sold by him, was all within his reach when the plaintiffs’ execution came to his hands and would have been levied on by him under that execution, if he had not supposed himself restrained from so doing by the rule of September term, 1841.
A. Whitehead and P. D. Vroom in support of the motion.
O. S, Halsted, contra.
Hokcsblower, C. J.
It would be the height of injustice, to refuse this motion. The property out of which this money was raised, was bound by the plaintiffs’ execution, from the time of its delivery to the sheriff, and he would have levied upon it, if it had not been for the misen try, or misconception of the rule granted by the court. The execution was not set aside, nor its legal operation in any way suspended, so as to let in a junior exeeution. The intention of the court was simply to stay the sheriff from making a sale under it, until the rights of the parties had been settled by the court. The execution therefore, though not actually levied, continued to be a lien upon the property until it was sold; and that lien followed the proceeds of the sale in the *138hands of the sheriff. The money in court, ought, in my opinion to be paid over to the plaintiffs in satisfaction of their execution as far as it will go.
Order accordingly