#### *W. P. Thomasson*vs. *R. E. Kennedy, adm'r. and others. J. M. Cooper*vs. *W. P. Thomasson and others.*

Where a sheriff sells land under *fi. fas.*and executes titles to the bidder, the eldest *fi. fas.*to which the money, if received by the sheriff, would be applicable, are satisfied to the extent of the bid, although the money be not, in fact, paid to the sheriff, and the plaintiffs in such executions must look to the sheriff; and the facts, that such executions were marked 1 wait orders,1 that the sale had been agreed on between the defendant in execution, who received the amount of the bid, and the purchaser, and was a mere formal sale to perfect the title of the purchaser, and that defendant in execution had sufficient property, at the time, to satisfy all judgments against him, will not exonerate the sheriff from his responsibility.

If the defendant in execution himself applies the amount of the bid to the eldest executions according to the priority of their liens, that will excuse the sheriff; but the *onus*of showing that is upon the sheriff.

Where a Chancellor, directing an issue at law, ordered that the depositions of certain witnesses, who had been examined by commission or before the Commissioner, be read on the trial of the *issue*— held, that an appeal, on the ground that the witnesses were incompetent, would not lie from the act of the law court allowing the *441depositions to be read, — the appeal should have been from the order of the Chancellor.

The principles stated upon which new trials of issues at law will be directed.

A witness who, if liable at all, is liable no matter which way the decision goes, is competent,

The question was, whether a judgment at law was satisfied, and plaintiff in the judgment died after subpoena served and before his answer was put in: *Held,*that the answer of the plaintiff in the judgment, to a rule at law to show cause why satisfaction should not be entered on the judgment, could not be read as evidence for his administrator.

"Where the issue between creditors is, whether the judgment of one is satisfied, the testimony of the defendant in the judgment is not higher evidence of satisfaction, than that of other witnesses.

*Before*Dunkin, Oh. *at York, June,*1849.

Dunkin, Ch. Daniel Thomas, a debtor, much embarrassed, left the State some years since. — -His property was sold, partly by the sheriff of York, (the complainant, Thomasson,) partly by R. Macbeth, former sheriff of Union, and partly by B. Johnson, the present sheriff. It seems by the report, that part of the funds realized from the sales, are in the hands of the commissioner of York, part in those of the commissioner of Union, and part is due by sheriff Johnson. The commissioner was ordered to publish a notice for the creditors of D. Thomas to establish their demands before him, and that he should report them, and also upon the assets .to be marshalled. The cause was heard upon the commissioner’s report, and exceptions thereto. Several exceptions embrace the same matter. The Court will proceed to consider the principal points made. The exceptions on the other points seem to the Court sufficiently answered by the report of the commissioner thereon, or are otherwise untenable, «id are, therefore, overruled.

The claim of the administrator of Allen DeGraffenreid, deceased, has been sent to a jury, and no further íemark upon it is now necessary or proper.

The first exception of the junior creditors, relative to the ten dollars, is sustained.

The second and third exceptions are overruled: the sheriff *442probably advanced the money to the creditors before he received it from the defendant.

The fifth exception relates to this state of facts, viz: — at April sales, 1842, sheriff Johnson sold to J. A. Stevenson, a tract of land under executions against D. Thomas. The bid was $2,205, and the sheriff executed and delivered to the purchaser a conveyance of the premises. The commissioner has charged Johnson with only the sum of $735 as received on this sale. It is said the land was sold by Thomas to Ste*venson at private contract, and that the balance was received by Thomas himself from Stevenson, but it is also suggested that he (Thomas) applied the money to the oldest existing unsatisfied execution. When the sheriff made the sale in April, 1842, the judgments of Wm. Dawkins and of A. *W.*Thomson, amounting to some $4,500, were open and yet unsatisfied. The principles on which the exception insists are well sustained by the authorities cited in the argument.— *Davis*vs. Hunt, (2 Bail. 412) ruled, that the sheriff having sold the land under executions and executed titles to purchaser, acknowledging by his deed the receipt of the purchase •money, is liable as for money had and received, although in fact the money may not have been paid to him. The eldest judgment creditor'is entitled to the action, and the money; for it is also held, in *O’Neall*vs. Luslc, (1 Bail. 220,) that a payment to the sheriff after *fi. fa.*lodged, discharged the defendant, although the sheriff neglect to pay over the money, or to credit it on the execution, — and also in *Perry*vs. *Williams,*(Dud. 44,) that when the sheriff’s sale is perfected, the oldest executions in his office are satisfied to the amount of the sale. The only matter open for inquiry is, whether the whole amount of the sales were in fact applied to the oldest judgments then in existence against the defendant, D. Thomas. This does not appear from the report, and the difference between $735 and $2205,-ought to be deducted as of April, 1842, from the oldest executions reported to be unsatisfied.— But if sheriff Johnson can prove that this difference was in *443fact applied by Thomas, as he, Johnson, ought to have applied it, he is entitled in equity to the benefit of such proof, and the commissioner may enquire and amend his report accordingly. The inquiry will also embrace the matter included in the 6th, 7th, 8th and 9th exceptions.

It is ordered and decreed that the report of the commissioner be re-committed for the purpose of reforming the same according to the principles herein stated and the testimony to be submitted.

The issue ordered by Chancellor Dunkin was tried at October Term, 1849, and a motion for a new trial of the issue at law was made in June, 1850, before his Honor, Chancellor Dargan, who pronounced the following decree.

Dakgan, Ch. These cases were tried together at the present term.

Allen DeGrafienreid, deceased, the intestate of the defendant, Richard E. Kennedy, had two judgments against Daniel Thomas; one for $3006 95, and the other for $782 00— upon both of which executions were lodged in 1839.

Thomas having proved insolvent, and his property having been sold by the sheriif, sundry of the creditors of the said Thomas have filed their bills for the purpose, among other things, of having the executions of DeGrafienreid, which were senior to theirs, declared satisfied. The case came on to be heard at June Term, 1849, and the presiding Chancellor ordered an issue at law to be made up to try the question, whether anything be due on the two executions of *A. De Graf-fenreid*vs. *D. Thomas,*in which the junior execution creditors shall be plaintiffs, and the administrator of DeGrafienreid, defendant, and that at law, the depositions of the witnesses examined before the commissioner, whose testimony was taken by commission, be received in evidence.

An issue at law was accordingly made up, and said issue was tried at the Court of Common Pleas for Union district, at October Term, 1849, when the jury charged with the issue, returned the following verdict: — “We find for the plaintiffs in *444the issue that there is nothing due upon the executions within mentioned.”

The present is a motion to set aside the verdict, and for a new trial, on various grounds. I shall not enter into the consideration of the various grounds in detail.

The first relates to the competency of the witnesses, Johnson and Satterwhite. The last named witness was surety to D. Thomas. They were sued, and judgment obtained against them both. Satterwhite paid the debt, and he, in that way, is a creditor of Thomas. But the Court having published an order for the execution creditors of Thomas to present and prove their demands — Satterwhite has presented no claim. I incline to think he is competent. Johnson’s competency is questioned, on the following state of facts. As sheriff, he sold land of Thomas for about $2200. Seven hundred dollars of this sum he applied to the payment of a debt or debts in his office, and the balance, secured by notes, he transferred to Thomas, who passed them off to third persons. The execution creditors of Thomas are seeking in these proceedings to make Johnson, (who is also a party) liable for the misapplication of the amount which he transferred to Thomas from the proceeds of the sale of his land. It is said that, on this account, he is interested, and, therefore, incompetent. But, on the contrary, it appears that whether the DeGraffenreid executions are removed or not, by a decree of satisfaction, the demands of the prior execution creditors are sufficiently large to absorb, not only the funds on hand, and now subject to distribution by the Court, but also any amount of liability which sheriff Johnson may have incurred by the misapplication of the before mentioned fund, which he is alleged improperly to have paid to Thomas. From this state of facts, it must seem that Johnson, if liable at all, is liable at all events, and his liability does not depend upon the question, whether the DeGraffenreid executions are satisfied or not. He is, therefore, indifferent, and is not incompetent from interest.

The deposition of both these witnesses had been taken before the last Court, and the Chancellor ordered the depositions *445of the witnesses, that had been examined before the commissioner or taken by commission, to be received in evidence on the trial of the issue at law. This was accordingly done.— And were I less strongly impressed that the witnesses were competent, I should not feel at liberty to modify the order of the Chancellor who ordered the issue, or to reverse his decision as to the competency of those witnesses.

As to the other grounds relied on as sufficient to induce the Court to set aside the verdict, I am of the opinion that they are insufficient; — I am entirely satisfied with the verdict of the jury. I have come to the same conclusion that they did, and on the same evidence. The motion is refused.

The two executions of *A. DeGraffenreid*vs. *D. Thomas,*mentioned in the foregoing part of this decree, are hereby declared to be satisfied, and it is so ordered and decreed.

From the two circuit decrees and the verdict of the jury, appeals were taken, on various grounds, which appear in the opinion delivered in the Court of Appeals.

*Thomson, Herndon,*for appellants.

*Dawkins, Williams,*contra.

Wardlaw, Ch.

delivered the opinion of the Court.

These cases relate to the marshalling of the assets of Daniel Thomas, an insolvent debtor, whose property was sold by the sheriffs of Union and York. The cases were first heard by Chancellor Dunkin, at the sitting for Union,, in June, 1849, on exceptions to the commissioner’s report, as to the debts and assets of Thomas.

One of these exceptions is as to the extent of the liability of B. Johnson, sheriff of Union, in the following state of facts.— Thomas and one Stevenson had agreed as to the price of a tract of land belonging to Thomas; and on the sale day in April, 1842, the land was sold by the sheriff, under executions in his office against Thomas, and bought by Stevenson at his bid of $2205. Sheriff Johnson having received $735 from the purchaser, and allowed him to settle for the balance ($1470) *446with Thomas, the defendant in the executions, conveyed the land to Stevenson. It does not appear that the creditors of Thomas were consulted about this arrangement. At that time, there were in the sheriff’s office two executions ( *fi. fas.)*against Thomas, open and unsatisfied, both marked *“*wait orders,” namely, one of Wm. Dawkins, for about $564 entered October 31, 1840; and one of A. W. Thomson, entered Feby-*27,*1841, for about $2823, of which about $485 was for arrears of interest. There were also in the sheriff’s office many executions of an older date against Thomas, standing open, but as these have not been presented. to the commissioner, on the call for creditors, they are presumed to be satisfied. The Chancellor decided that sheriff Johnson was liable for the whole sum of Stevenson’s bid, and that to the extent of this liability, the elder executions were extinguished. This appeal, in behalf of the sheriff, insists that he is not liable beyond the money actually received by him ; and it is urged, that the sale was merely formal to perfect Stevenson’s title ; that no creditor was injured, inasmuch as the elder executions were not pressing for collec • tion, and junior executions were not in existence; and that other property of Thomas remained sufficient to satisfy all the executions against him. The authorities cited by the Chancellor fully sustain the principles of law asserted in the decree; and the facts relied upon do not take this case out of these principles. The sheriff is a ministerial officer, required to execute the judgments of the Courts, by levy, sale, and application of the proceeds according to fixed rules; and he is not to judge what circumstances may justify departures and exceptions from these rules. To allow him to misapply the proceeds of his sales, upon conjectures as to the solvency of defendants in execution, would furnish room for much fraud, to the injury of many persons whose interest in particular cases may not be seen. The rights of the community are best protected by the rigid exaction of duty from public officers. Where the sheriff ventures to constitute an interested party his agent for the disbursement of the funds of his office, he must be responsible for the faithful per*447formance of the agency. In this case, if Thomas has applied' the amount intrusted to him to the payment of his creditors according to the priority of their liens, the sheriff has the opportunity of proving this fact and exempting himself from responsibility, under the instructions of the Chancellor in re-committing the report, and this' is treating him with much liberality.

A. W. Thomson, one of the judgment creditors of Thomas, appeals from the overruling of his exception to the commissioner’s report — that he was not allowed interest from the day of the sheriff’s sale, on the aggregate of principal and interest due to him on that day. Where creditors have been obstructed in their remedies for satisfaction, by the act of this Court in assuming the administration of the assets of debtors, the Court will generally preserve the proportion of the debts to the assets existing at the time of the obstruction, so as to secure equality among the creditors, and prevent undue profit to some by the delay. In many cases, however, where the funds in the custody of the Court have produced no interest, from a proper sacrifice of productiveness to safety, it may be that none of the creditors shall receive interest. In the case before us, the discussion of this difficult doctrine is unnecessary, after the conclusion we have attained on the appeal of sheriff Johnson. The sum of $1470, applicable in his hands to the payment and extinguishment of the executions according to their priority, is more than sufficient to satisfy the first execution, and to satisfy all the arrears of interest on the second execution, which is that of the appellant. So, that the balance then remaining due to the appellant, is necessarily principal; as the payment must be first applied to the extinguishment of interest. Whether this creditor may be entitled to interest afterwards on this balance from sheriff Johnson or other person, will depend on facts as to which we are uninformed; as whether prompt demand of payment was made, and whether the sheriff, or other custodier of the funds, has made profit upon them, or has mixed them with his private funds. These remarks may be applied to other creditors, and to all the funds now in controversy. The principles-' *448may be more intelligently and more definitely settled, when we have the further report of the commissioner upon the facts.

On another exception to the commissioner’s report, as to two judgments of Allen DeGraffenreid against Daniel Thomas, the Chancellor directed an issue to be made up in the Court of Common Pleas for Union district, between the junior judgment creditors of .Thomas, as plaintiffs, and the administrator of DeGraf-fenreid, as defendant, to try whether any thing was due on these judgments; and he further directed, that the depositions of the witnesses before the commissioner, whether taken by him, or by commission, should be received in evidence on the trial of the issue at law. This issue was tried at October Term, 1849, of the Court of Common Pleas for Union, when the jury returned a verdict for the plaintiffs in the issue, that nothing was due upon said judgments. At the sitting of this Court for Union, in June, 1850, a motion for a new trial of this issue, on various grounds, was made before Chancellor Daugan, and refused by him, and the same grounds are now presented'to us on appeal.

The first ground is, as to the competency of the witnesses, Satterwhite and Johnson.

The testimony of these witnesses was received by the commissioner, was recognized by the Chancellor, and was ordered by him to be received at law. If there be any error as to their competency, it is the error of this .Court, and not of the law court, which conformed to the request of the Chancellor; and the appeal should have been from the order of the Chancellor, and not from the verdict of the jury. This is not a mere nicety as to practice, but a grave matter of principle, affecting the comity which should prevail between co-ordinate tribunals.

Appeals should be discouraged which are calculated to bring the courts of Law and Equity into collision. Issues to the court of law are directed by this court, for the purpose of informing the conscience of the Chancellors; and if this purpose be achieved, we do not examine the process very narrowly. If, upon a particular issue, we might suppose that the law court was in some error as to the law, we should not grant a new *449trial of the issue upon this express ground ; for this -would imply the arrogant pretension on our part, that we understood the law better than those to whom is administration was committed by the polity of the State. But we would look to the materiality and importance of the supposed error. If the verdict were, upon the whole, satisfactory, no notice would be taken of minute departures from our notions of principle or procedure. But, if we regarded the supposed mistakes of the court trying the issue, to be so material, that our consciences were not satisfied as to the general result of the trial, while we should not undertake to rectify the rulings of the other court, we might order the parties to try the issue again, and request of the other court that a particular course should be pursued as to the points on which we were dissatisfied. In the case under consideration, there is much testimony leading to the same conclusion besides that of the witnesses to whom objection is made — the result attained by the Jury is in conformity to the opinion of the commissioner who first heard the evidence, and to the opinion of the chancellor on the circuit, to whom the application for new trial was made;— and is satisfactory to this Court.

Moreover, if the questions as to these witnesses were properly before us, by appeal from the order of the Chancellor, we should disallow the applicant’s motion.

Much doubt as to the competency of Satterwhite might have been entertained, if his payment, as surety of the judgment against Thomas and himself, had been made after the passage of the Act of 1849, (11 Stat. 556,) but the payment was antecedent to that Act, and the Act is prospective in its terms. Perhaps, equal doubt as to his competency may arise — putting the statute aside — from the application of the equitable doctrine of subrogating a surety who has paid the debt of his principal to the rights and remedies of the creditor. There is force in the view that Satterwhite has presented no claim against Thomas, under the call upon creditors, but it is not clear that he was precluded from claim at the time of his examination. The appeal as to Satterwhite was abandoned, and properly, for the *450question as to his competency was not raised in time. The objection was not made before the issuing of the commission to take his testimony, nor urged upon the trial of the issue.

As to Johnson, his competency is clear enough. His liability for the bid of Stevenson does not depend upon the question of satisfaction of DeGraffenreid’s judgments; for if these be removed, those of Dawkins and Thomson remain, more than sufficient to absorb the whole sum of his liability. If liable at all, he is liable at all events; it makes no difference to him whether he is to pay one or the other of these parties.

Other grounds of appeal object to the verdict of the jury, because the answer of DeGraffenreid to a rule in the Common Pleas to show cause why satisfaction should not be entered on his judgments, was not received as evidence on the trial of the issue. It is insisted that such answer to a rule should be treated as an answer to a bill, where the party dies, as here, before putting in answer to the bill, after service of subpoena upon him. It is a conclusive reply to these grounds, that the evidence was not offered before the commissioner, nor to the Judge on the trial of the issue. Again, an answer to a rule is a mere declaration, without cross examination, of an interested party in his own behalf; and is not evidence in any court on the trial of an issue *between*adverse parlies. If the Court of Common Pleas, on the return of the rule, had directed an issue to the jury as to the satisfaction of these judgments, surely the declaration that he had not been paid, by the plaintiff in execution, although under oath, would not be heard on the trial of the issue. An answer to a rule has little analogy to an answer to a bill. In the former evasion and prevarication are quite practicable; it is more hazardous and difficult to frame untrue responses to the searching interrogatories of a bill.

The same reasoning disposes of the ground, that DeGraf-fenreid by his indemnification of the sheriff, declared his execution to be unsatisfied.

Another ground objects, that the best evidence of the satis*451faction of the judgments was not produced, because Thomas himself was not examined as a witness by the plaintiff. It is a palpable mistake to suppose that the testimony of Thomas was better evidence, that is, of a higher grade, than that of any other witness who was examined; and the defendant in the issue had all the benefit, in argument on the effect of the evidence, of the presumption against the claim of the plaintiffs arising from their failure to produce this witness. • ■

The other matters of objection to the verdict do not require particular notice.

The remaining ground of appeal is, that the estate of De-Graffenreid should be reimbursed for the costs and expenses of a suit at law, by the children of' Thomas against the sheriff of Union, for selling, as the property of Thomas, certain negroes claimed by these children. It seems that De-Graffenreid indemnified the sheriff in the sale of these ne-groes ; and that the proceeds of sale have increased the assets of the debtor, of which the estate of DeGraffenreid gets no portion. If DeGraffenreid were to be regarded merely as a volunteer in this act of indemnity, it would be difficult to demonstrate that he should be rewarded for the offence of common barfetry. But he is worse than a volunteer. By holding up, as subsisting claims against Thomas, these judgments, which were, in fact, satisfied, he has attempted a fraud on the other creditors, and has stirred up the protracted and expensive litigation in this court. It is quite as reasonable that his estate should be burdened with the whole expenses of litigation in this court, as that it should be reimbursed for his expenses in another- tribunal, quite competent to regulate the incidents of its own judgments. However, directions as to costs are reserved until the amended report of the commissioner be made.

It is ordered and decreed that the appeal be dismissed, and the circuit decrees be affirmed.

Johnston, Dunkin and DaRgan, GO. concurred.

*Appeals dismissed.*