Assuming that the sale to the plaintiff was fraudulent as to creditors of Cavanaugh O'Leary, and that the goods were lawfully attached and sold upon the writ, the sheriff had no power over the proceeds of the sale except to hold them for application according to law. P. S., c. 220, s. 42. The plaintiff's title was good as against Cavanaugh O'Leary, and good as against every one else except attaching creditors. Jones v. Bryant,13 N.H. 53; Hill v. Bank, 45 N.H. 300, 309; Stevens v. Morse, 47 N.H. 532,535. The failure to return the writ to court dissolved the attachment, and the sheriff became bound to deliver the proceeds of the sale to the plaintiff. P. S., c. 220, s. 36. He had no authority to pay it to the attaching creditor except upon a levy. No execution has been or can now be had, and the defendant's payment without judgment and levy was unauthorized and is no answer to the present suit. *Page 201

Under similar circumstances, it has been held in Massachusetts that a sheriff cannot justify under his attachment unless he returns his writ to court. Wilder v. Holden, 24 Pick. 8, 12; Russ v. Butterfield, 6 Cush. 242; Williams v. Babbitt, 14 Gray 141.

Exception overruled.

PARSONS, J., did not sit: the others concurred.