The opinion of the Court was delivered by
Kennedy, J.
The various positions affirmed and laid down by ¡the court below, which have been excepted to in this case, are all, •as we conceive, perfectly correct and tenable; most of them are so plain to the legal mind as to be self-evident, and therefore require no argument to be made or reasons to be adduced in order to establish or make them more so. What, however, is said in regard 'to the statute of limitations and some other matters, not being a ■bar, or interposing an obstacle to the recovery of the plaintiff, seem from their nature and unfrequent occurrence to claim some notice.
Cases, in relation to the execution of judgments, have been referred to by the counsel for the plaintiff in error, to show that the mere seizure of the defendant’s goods without more, amounts to a satisfaction of the judgment; whence, it was said, it might be inferred, that, as soon as the goods of a surety were seized, by virtue of an execution, for the debt of his principal, he might maintain ■an action against his principal. But suppose he were to commence such action immediately upon the 'spizure of' his goods, and they, being of a perishable nature, were to die without any neglect, want of care or vigilance on the part of -the officer, before they *275could, by a sale, be converted into money, what would become of the action? Will it be said that it could be maintained? _ It was said that the reason why a bare seizure amounted to a satisfaction of the debt,-was, because the defendant in the execution thereby, lost his goods and became divested of his property in them. But this, I apprehend*is-not so to the full extent claimed; for it has never been said, much less adjudged, that the officer, the creditor* or any body else becomes vested, by means of the seizure alone, with the absolute property in the goods. If the seizure, then, do,es. not change or vest the absolute property in some other person than the defendant in the execution, it must; of course, still remain in him; and no doubt it does until a sale is made, by the officer, of the goods, which transfers and vests the whole right of- property in the purchaser at the sale. The officer, by the seizure' under the exe? cation, acquires merely a special property in the goods,which would enable hinrto maintain trespass or trover for them if improperly taken from him; and under the authority of the law, he is invested with full power to sell and transfer the absolute property in them; and this is the full extent of all that-belongs to him. It is only a power coupled with an interest at most, that the officer has over the goods, because a payment or tender of the money to him at any time before he has effected a sale of them, will divest him of all right in and authority over them. Therefore, when it is- said that the seizure of a defendant’s personal property, by virtue of an execution against him, either divests him of his right of property therein, or amounts to a satisfaction of the debt, it must be understood to be so only sub modo, in a qualified and limited sense. And I take it, that it would not be very prudent or safe for a surety to commence a suit against his principal to recover the debt from him, merely because his goods had been taken in execution for it, without any sale having been made of them, or allowing a proper lapse of time for that purpose. When the sale, however, is made and the money thereby raised, there can be no possible -difficulty about the appropriation of it; for if there be only one execution, the money must necessarily be first applied to the satisfaction of it, so that the party in whose favour it was sued out is entitled to so much of the money as'will satisfy his debt, and no other can claim it; and if there be two or more executions-against the.same defendant, returnable to the same term, and put into the hands of the .officer on different days, then the money must'be applied towards the discharge of them according to the order of time in which they were delivered to the officer, by paying first the one first deliyereq, &c., &c. It is considered the ordinary.duty of the officer to do this, though the sheriff, by the terms of the execution, is commanded to have the money in court at the return day of it. But cases may occur, perhaps, where the court would take charge of the money and direct the appropriation of it; as,-for instance, where the money js insufficient to satisfy ,all the executions, and application-is made *276to the court to order the sheriff to bring it into court, by some of those who delivered their executions last to the sheriff, in order that they may have the money applied to the discharge of them, on the ground, that the executions delivered before theirs to the sheriff, were issued by collusion between the defendant and the plaintiffs therein named, for the purpose of defrauding the applicants or others, who are bona fide creditors of the defendant.
But there is certainly a great difference between the seizure of real estate and that of personal, under an execution. In the latter case, the seizure secures the application of the money that shall arise from the sale, almost to a certainty, to the discharge of the debt or claim contained in the execution, under which the seizure is made. But in the case of real estate, the seizure is nothing in this respect; and after a sale shall be made of the estate, gives no preference to the money whatever, where liens existed at the time of the sale against the estate of equal or prior date to that connected with the execution under which the seizure was made. The money must be applied to the discharge of the lien-debts, according to their seniority of lien, excepting when a mortgage-debt happens to be the first lien, which, under the act of assembly, in that behalf, still remains a lien upon the estate, notwithstanding the sale. But the application of the money, in such cases, is often a very difficult and complicated task, requiring much more legal knowledge than most of the sheriffs possess, or are capable of exercising. But in no case are they compellable to encounter the difficulty and responsibility attending it, because they may get clear of it by voluntarily bringing the money into court; or any person laying claim to the money, or any part of it, may compel the sheriff, by au order of the court, to which he is entitled upon application, to bring the money into court. The money being thus brought into court, cannot be taken out without an order of the court authorising it. This the court, under the acts of assembly, is bound to make in favour of whoever shall show himself entitled to it. But before such order or decree can be made, the claims of the parties respectively must be examined into, as also all the records, where liens against the estate may be registered and discovered, if any such shall exist; and this ought to be done, notwithstanding the persons entitled to them shall fail or neglect to bring them forward and make them known. This of course will necessarily require time, and the court must be left to judge of the time requisite for this purpose. And after an examination is gone into and had by the .court, it may be discovered that there was really no good reason or even colour of ground for objecting to the plaintiff’s receiving the money, under whose execution the sale was made and the money raised; but then it is clear that this could not be ascertained and made known without an examination, for which it was proper to allow lime. Is it not clear, then, that, until the question as to the appropriation of the money has been passed on by the court, *277the right of the execution creditor to the money, cannot be considered as established or determined? But if the decision as to the appropriation of the money, lie in the common pleas or district court, any one of the persons concerned, has a right to carry it to the supreme court by appeal, so that a very considerable lapse of time may take place before a final determination of the question can be obtained. But surely until then the party in whose favour the decision is made, whether the execution creditor or another, cannot be said to have any right to take the money out of court; and if by any chance he were afforded the opportunity of laying his hands upon it and taking it, he would not be justified in doing so, without the license of the court. Would it not, then, be perfectly- incongruous to hold that he was paid the amount of his debt with money that he had no right to touch, take, or make use of in any way whatever? It is unlike the case of money made by a levy on personal property, where the law makes an appropriation of it, and authorises the plaintiff to take it without any decision of the court, and for which he may sue the sheriff without any application to the court. And although it may happen, in such latter case occasionally, that he cannot always receive it as soon as it shall be made, owing to the conduct of the officer in improperly withholding it from him,-yet in law he is considered as entitled to it by a right that is in no wise questionable. But again, when the question as to the appropriation of the money is made in court, in case of money arising from real estate, it mustbe considered uncertain, until it shall be determined by the court, who the party is that is entitled to receive it; because that is the very thing which is placed in doubt, and made the cause of its having been brought into court, and which can only be ascertained and rendered certain by a judicial determination. This, however, is not all—the act of assembly has made it the duty of that court alone, where the money is, to order and direct the appropriation of it;' and no other court can take cognizance of it, nor undertake to decide in any way whatever, either directly or collaterally, to whom the money belongs, or who is entitled to it, until after such court shall have decided upon it, when the question may be brought by appeal before this court; but in no other way can.this court acquire jurisdiction of the matter and decide upon it. This court has no authority to. decide on the matter collaterally, nor can it review the decision-of the court; because in a collateral action, as here, the decision of the court below is final and conclusive, when unappealed from. • Nor can the court, where the money remains, decide on the question of its appropriation in any collateral action; it mustapdcanonly be done upon a direct application to it, by one or more of the parties interested, for that purpose. It is clear, therefore, that the money cannot, either in fact or in law, be considered as paid to a party who has not actually received - it, and whose right to receive it is co ntested, and made the subject of fut.ure judicial determination. -Does it not, *278then, necessarily follow, that as long as the creditors Cannot be said to have been paid, either in fact or in contemplation of law, his debtor cannot be considered as having paid the debt? That the debtor has no right in such case to be regarded as having paid the debt to his creditor, whose right to receive' the money is contested, until it shall be judicially determined in favour of the latter, is, as would appear, almost if not quite, self-evident. 'From this course of reasoning, and the principles established by it, we are brought to the conclusion that Henry Share cannot be considered as having paid any money to Mrs Evans for John Pedan before the 26lh of June 1821, when the court ordered the 3322 dollars 43¶ cents to be paid to her out of the moneys in court arising from the sale of Share’s real estate. That until then Share had no right to bring, and could not maintain an action for contribution; that the statute of limitations did not begin to run until his right of action accrued; and his action afterwards against Duffy for contribution being commenced on the first of June 1S27, could not be barred by the statute of limitations, as the six years had not then run from the time of paying the money.
It was, however, further contended by the counsel for the plaintiff in error, on the argument, that part of the six thousand dollars, ordered by the court, on the 27th of January 1821, to be paid to Mrs Evans out of the same money, ought to be considered as having been paid by Share in discharge of part of Pedan’s proportion of the debt due to Mrs Evans, which Duffy, as a co-principal obligor with Share, was bound to pay, on account of the insolvency of Pedan; and that as to this part so paid, the statute had clearly run, and was therefore a bar. But there is no ground for this argument, because it is based upon the assumption of a fact, which does not appear to exist or be supported by the evidence. On the contrary, it would seem that the six thousand dollars, so ordered to be paid, were not even equal to the sum which Share was bound to pay, as between himself and his solvent co-obligors, in discharge of his own original proportion of the debt, together with that which devolved upon him on account of Pedan’s insolvency. But until he paid something above this amount, it is clear he could have no claim to contribution; because he could not be said to have paid any thing that Duffy was bound to Share, either in law or equity to pay, or to keep him indemnified against paying. On the contrary, Share was bound in equity, as between himself and Duffy, to pay that amount to Mrs Evans, and thus protect Duffy from paying it; so that until the court, on the 26th of June 1821, ordered the 3322 dollars 43j cents to be paid to Mrs Evans, Share could not be said to have paid more than his own proportion, as between him and Duffy, and consequently had no cause of action against, or right to sue the latter for contribution. Share had it not in his power, even had he been willing, to have appropriated any portion of the six thousand dollars otherwise than to the payment of his own propor*279tional share, as between himself, Duffy and Mehaffy, his solvent co-obligors of the debt coming to Mrs Evans. Because it is obvious if he were permitted to do so, and upon that ground to maintain suit against each of them for contribution, he might recover against them, leaving them still liable, as co-obligors, to pay his proportion of the debt to Mrs Evans, which would be manifestly unjust if not absurd. Hence all that was said and urged on the argument, upon the ground of Share’s having made such appropriation, by the terms of his assignment to Haines, when fairly construed, can avail nothing.
As to the question, whether the bringing of the action by Share against Duffy, was such a damage to the latter as to amount to a breach of the condition of the bond given by Lytle and Pedan to Duffy and Mehaffy, we are clearly of opinion that it was; because, by the very terms of it, the former were bound to indemnify the latter against all actions, suits, &c.; but through the neglect and failure of Pedan and Lytle, Duffy had not only been sued, but had actually been rendered liable to pay the amount of money demanded of him on the action; and by being sued was, in contemplation of law, actually damnified; and being rendered liable to the amount claimed, nothing short of a recovery in this action, equal to that sum, for which he had so become liable to Share, could be considered a complete indemnity.
But it was objected that Duffy was not liable to reimburse Share the one-third, or any part of Pedan’s portion of the debt which he paid. It is difficult to perceive any plausible ground upon which, this objection can be sustained. Share, Mehaffy, Duffy and Pedan were principal obligors in the bond, securing the payment of a debt created for their mutual benefit; and being bound jointly and severally by the bond for the payment of it, are regarded in equity as surety between themselves for each other, so that if any one of them paid more than his proportion, the others were bound in equity and law here to reimburse him if, able: but if any of them should become insolvent and unable to pay, and a loss should arise therefrom, it was to be borne equally by those of them who should remain solvent. Accordingly, Pedan having become insolvent and unable to pay, and Share having paid the whole of his proportion, whereby a loss accrued to Share, which Mehaffy and Duffy, being solvent, were bound to bear their equal proportion of, that is one-third thereof, rendered Duffy liable, so that he could not resist the claim for which he was sued by Share.
Judgment affirmed.