majority">Miller, J.

The affidavit upon which the attachment proceedings in favor of the plaintiff and against James Kelly were instituted utterly failed to establish that Kelly had left the county where he resided, with intent to defraud his creditors. The same objections exist to the proceedings as were *90urged in the case of Kelly v. Archer, et al. (ante, p. 68,) and which are fully discussed in the opinion in that case. Some others are presented which are equally apparent, but as sufficient appears to show that the attachment proceedings were void for want of jurisdiction in the officer who issued the attachment, it is not important to examine them.

The proceedings being void, the question arises, whether the defendant was bound to execute them and has made himself liable by reason of his failure to do so. In the case under consideration, the defendant made a return that he had collected a small amount before the execution issued upon, the judgment, and that he could not find any other property. Having thus returned a partial collection of the execution and failed to realize the balance, is he entitled to protect himself from liability by proof of the invalidity of the process under which he aóted ?

I think that this fact does not prevent the interposition of a defense that the process was immaterial. By collecting a portion of the amount he did not thereby obligate himself to proceed and collect the remainder, of the defendant in the judgment. When an officer becomes satisfied that there is a want of jurisdiction, he is not bound to act, in any way. He may stop as soon as he becomes convinced of this, and if sued for a neglect of duty, may show in his defense such want of jurisdiction. (Earl v. Camp, 16 Wend. 562.) It may well have been the case that when he sold, and realized the amount which he returned as collected, he was not advised of the defective character of the process under which he was acting. But even if he was, I think that the right to suspend action existed at any time. ' The return to the execution did not injure any one, and no action was taken by the plaintiff in the execution in consequence of it. It was not such an act as created an estoppel. (Dezell v. Odell, 3 Hill, 215. Hawley v. Griswold, 42 Barb. 18.) If the officer had brought a suit he would have been compelled to show a valid judgment, in order to sustain it. (16 Wend. 563.) The *91case now before us is different from one where there is a mere irregularity which does not render the judgment void, and which may be amended ; or a case where the officer has collected money under process which was not absolutely void, and which he has treated as valid. (See Walden v. Dawson, 15 Wend. 575.) In the case last cited, the officer received the money and returned the writ by virtue of his office. It was held, very properly, that under such circumstances he could not avail.himself of a slight irregularity in the process itself which could be amended, and which therefore did not render it entirely nugatory.

It is said that the referee erred in holding that there was no property of the debtor in the possession of or within the reach of the defendant,' at the time of the receipt of the attachment and execution, upon which he could levy.

The money which the defendant paid over was the surplus money arising upon a sale under the other attachments, and was paid prior to the attachment in favor of the plaintiff being issued. At that time it was apparent that the money belonged to the defendant in the attachment proceedings, and no one but he had any right to complain that the payment was illegal. Although this surplus money was paid over prior to the payment by the Archers for the property bid in by them, yet I think that it was properly applied. It could be ascertained by calculation, and the officer could see that the avails of the sale were enough to meet these executions, and as they were provided for by what remained unpaid, I think it makes no difference, because he chose to apply the money in advance of the payment. He had a right to regard the unpaid sum as applicable to the executions under which he had sold. But whether he acted lawfully or otherwise, at the time when the attachment of the plaintiff was received, the officer had paid over the surplus, and there was no money in his hands except what was liable to.be appropriated to the payment of demands which were antecedent to the *92plaintiff’s debt. Nor was any received afterwards which was not applicable to prior attachments.

[Albany General Term,September 17, 1866.

I think there is also another answer to this allegation of error in the referee’s decision. As the judgment and proceedings were void and the officer was not bound to act under them, as I have already shown, the finding of the referee upon this subject was in regard to a material fact which could not affect the result to which he finally arrived.

I have no doubt but that the proceedings under the attachment can be assailed in this action, by the defendant.

The judgment entered upon the referee’s report must be affirmed, with costs.

Hogeboom, J. concurred.

Ingalls, J. expressed no opinion.

Judgment affirmed.

Miller, Ingalls and JECogehoam, Justices.]

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