¶1A sheriff is hound by law to return an execution according to the requisition of the statute, at his peril. If he neglects it, he renders himself liable to an attachment oi an action at the election of the party aggrieved; and in all cases the onus is on the sheriff to excuse the default. . •
¶2In this case the sheriff comes in and shows by affidavit that he has been sued for the money, and also that a portion of it is claimed by a prior judgment creditor. Under these circumstances, I think it clear that the rights of the several parties cannot he settled by this motion; and that an attachment ought not to issue against the sheriff. For wherever the right of the party claiming the money is in doubt, the court will refuse to interfere on motion and turn him over to his action. (Camp agt. McCormick, 1 Denio, 641; Evans agt. Parker, 20 Wend. 622.) The case of Newland agt. Barker (21 Wend. 264) also recognizes the principle that the mere receipt of the money by the sheriff on an execution will not in all cases make him liable to the plaintiff in the execution for the amount.
¶3The motion must, therefore, be denied, and without costs to either party, and without prejudice to the plaintiffs’ right to renew it, after the termination of the action of Price & South-wick against the sheriff.