Neal v. Patten

McCay, Judge.

The debt of the plaintiff in error was reduced to judgment before the passage of the Act of October, 1870, and he is not now seeking a judgment upon it. His suit is not pending, but has been ended by a judgment in his favor. The first paction of the Act does not, therefore, apply to it. Nor is it levied, or about to be levied, so that section 5 of the Act of 1870 does not meet the case. Here is a trust fund. It is in the hands of the law. The different claimants are brought before the Court, to determine to whom it shall be paid. The plaintiff has a debt, ascertained by law. It is a judgment. There is nothing in the Act of 1870 to meet the case. He is neither seeking a judgment on his debt, nor is he pursuing the property of the defendant by levy. The Act of 1870 is careful to say nothing affecting the debt itself, in the cases it provides for. A pending suit is to be dismissed if the affidavit is not made within the time prescribed, and no levy or sale is to be had unless the same thing is done. The plaintiff in error was in neither of the situations provided for. This Court has no right or power to provide that a case not provided for shall come within the Act.

Judgment reversed.