#### Lindsay’s executors v. Armfield, sheriff.

V I From Guilford. J

fUe law declares it to be a sheriff’s duty to execute all process which comes to his hands with the utmost expedition, or as soon after it comes to his hands as the nature of the case will admits where he takes no step from the 7th of October to the 1st of Nor. and assigns no reason for it, he is liable.

The plaintiffs declared in two counts against the defendant as sheriff of Guilford; 1st, for a false return on a fi. fa. issued at the instance of tbe plaintiffs against one Brown; 2nd, for negligence in his office by failing to levy the execution within reasonable time; and it appeared on the trial below, that the plaintiffs’ execution tested 3rd Monday in August, 1820, was issued 25th September, and was returned by the sheriff, who is the present defendant, endorsed “ came to hand fth October, 1820; no property to be found;” and signed by him. It further ap-*549pearcu, that defendant or his deputy, while he had the plaintiffs’ execution in his hands, went to Brown’s house on the 1st Monday in November, for the purpose of levying the same, where he found a barn of corn containing 50 or 60 barrels within Brown’s enclosure.

The defendant then proved by one Carman a constable that on the 31sf of October he had several executions in his hands at the instance of sundry plaintiffs, which on that day he levied on said corn and all the other property of Brown, but that he did not remove any part of the property, nor did he place it in the care of any person; that he advertised the properly and sold it ten days after-wards. It appeared further, that the executions spoken of by the constable were at the instance of different plaintiffs against the said Brown; the same being judgments regularly entered up and executions thereon regularly issued of date the 30th October, 1819, on the same papers with the warrants; and on the face of two of said executions, dated in 1819, was written this memorandum: “this execution aliased and renewed October 30th, 1820. (Signed) David Thomas, J. F.;” and on the back of the others was endorsed “aliasedand revived October 31, 1820, (Signed) David Thomas J. P. and no other papers were in Carman’s hands. It appeared further that David Thomas was a justice of the peace.

1. The judge below charged the jury that the executions under which the constable Carman made his levy, were valid executions, and authorized him to make the levy.

2. That if Carman had levied his executions on the .property of Brown before the sheriff or his deputy went to levy, that the sheriff had no right to levy the execution from Court on said property. Though it bore teste prior to, and was delivered to the sheriff before Carman had levied, yet it created no lien against the constable’s levy.

3. That if a constable levy an execution and leave the *550property where he found it, and in the hands of the defendant, and be guilty at the same, time of no delay in the sale, no other officer had a right to levy on said property.

The counsel for the plaintiff then moved the Court to instruct the jury that a sheriff is bound to use reasonable diligence to make the plaintiff’s money on an execution; and that if he failed to use that diligence and the debt was lost, the sheriff was liable; and that it be submitted to the jury whether the sheriff had used reasonable diligence, in neglecting to levy the plaintiff’s execution on the property of Brown from the 7th to the 31sf of October; and the Court refused so to charge them, but told the jury, “ that by the tenor of the fieri fiadas the sheriff had until the return term of the same to make the money, unless hastened by the plaintiff; but if requested by the plaintiff the sheriff was bound to levy immediately, unless at that time employed in some prior official duties. But in this case it did not appear the sheriff had been hastened by the plaintiffs to levy their execution, and it was submitted to the jury, if the sheriff had used due diligence.

Under these instructions, the jury found a verdict for defendant, and a motion for a new trial being overruled and judgment rendered against the plaintiffs, they appealed to this Court.

W. H. Haywood, jr. for the appellant.

The sheriff by finding property in possession of defendant in the execution he had, was bound to seize it, and having returned nulla bona, he is guilty of having made a false return; unless he show something which protected the property, he is liable to the plaintiff’s suit in this action. There is no need that plaintiff should point out property, or offer-indemnity, but where the property is in the hands of a third person and the sheriff asks it.

The sheriff here excuses himself by showing that another officer, who had process of subsequent teste and *551subsequent delivery, had levied on the property before he found it. and that the constable still left the property in possession of defendant in execution.

The Judge below erred 1st, in charging the jury that the papers in the hands of the constable were valid executions. Though this Court will go great lengths to support process against technical objections and disregard mere form* yet have they never gone the length of this case, that a mere memorandum on the face of process which has expired, shall give new lite to an execution under which the citizen’s property may be sold. Informality in other process may be less ruinous, because the party has opportunity of taking advantage of it, or the same when disclosed may he amended; but on an execution he lias no answer but to pay it, or have his property' sold under it. Besides, it seems to me that no legal construction which cau be given to this memorandum, .will impart to it the force of a ji. fa. The Court can look no farther than the paper itself for its construction, and it is rather a memorandum, evidencing that other process or an alias fi. fa. has been issued, than that the entry of itself was intended as a neto execution. A Justice of the Peace has no right to give new force and life to a writ which has expired. He has only an authority to issue an alias or a new writ.

But if this Court shall consider the papers in the constable’s hands, as giving him authority to act under it and sell the property, still the Judge below has erred in charging the jury that the sheriff had no right to levy the plaintiff’s execution on the property left in the possession of defendant in execution.

In the case of Green v. Johnson, (2 Hawks 309.) this Court has decided that where there are two executions, and the. younger teste is first delivered, although the sheriff shall have levied it and began to execute it (as was there the case,) yet if the execution of an anterior teste bedcli- \ ered before the sale, it must be first satisfied. The rea*552soning in that case applies with all its force to this case: and suppose the process to hare been all in the hands of the same officer, it comes fully up to the present' case. -^11^ does the fact of the process issuing to different officers, when there is no actual seizure of the property, affect the law so as to change it; so that if I get my execution in the hands of one officer the law entitles me to satisfaction, but if I bo unfortunate enough to place it in the hands of another I am postponed ?

In Bacon’s Mr. voL 6. page 176, and Comyn’s Dig. "ool. 5. page 121. it is laid down as a general rule, that the sheriff cannot take goods, before seized upon another execution. But the cases referred to lay no stress on the fact of there being different officers; indeed in all these cases the officer was the same; and most or all of the cases will, upon reference, turn out to be cither where the last process begun and levied was first delivered, or upon some provision of the bankrupt lawr, neither of which will support such a rule. And again, in the case of Green and Johnson, the property was as much in custodia legis under the younger fi. fa. as in any case referred to for the support of this rule. And in every case there was a seizaire. But besides this, where the sheriff levies on personal property, and leaves it in the hands of defendant in execution, it is surely void as to other creditors, and more especially where there are prior liens. There must be a seizure where the property is capable of it.

In the case of Gilky v. Dickerson, (3 Hawks 293.) a list handed to the sheriff of property does not make it a levy.

Here the constable having left the property with defendant in execution, (as the case shows,) the sheriff was bound to levy the plaintiff’s execution.

Sheriff by seizure acquires but a qualified title to the property, which can never be rendered absolute in himself, nor in any other person but by a sale, which alone changes the general property. (7 Mass. T. Ji. 505.)

In 2 Johnson’s Hero. 418, the Court takes the ground *553that the sheriff went as far to seize as he could; and if not necessary, why assume that ground in the argument?

It is by virtue of the seizure only that property in the goods is transferred to the sheriff or officer; this it is which gives’him a right to bring-trover. (2 8annd. Hep. 47 a.)

Suppose the sheriff had levied, how could the constable have recovered? Only by proof of an authority to seize under process, and that he liad made a seizure. The possession he had not, and without it he could have no property.

3d. It will hardly be contended that what is due diligence in an officer is matter of fact: and here the Judge left it for the jury to determine; and this is no verbal exception to the charge, but he was called on to say that the sheriff was bound to use reasonable diligence, and he refused.

Hall, Judge.

The plaintiff's execution was a lien upon Brown’s property, and when on the 7th of October, it came into the defendant’s hands, there were not until the last of that month any other conflicting executions. No reason is assigned why that execution was not levied upon Brown’s property during that time. The law declares it to be the duty of the sheriff to execute all process which comes to his hands with the utmost expedition, or as soon after it comes into his hands as the nature of the case will admit. (Bac.Abr. Sheriff, N. Dalt. Sh. 109.) But it is further stated on behalf of the defendant, that although executions came into the hands of the constable Carman, on the last of October, that those excutions were levied upon Brown’s property, but that he did not remove any part of it, or .place it in the care of any person, that he advertised, and sold it ten days afterwards: that during that time, on the fourth day of November, the defendant went to Brown’s house, where the property was on which the constable had levied, and that he failed at that time to levy upon it. In this I think he was again *554guilty of neglect, for I cannot hesitate, in believing that the property was subject to the plaintiff’s execution- for it had the first lien upon it, which could not be divested ^y a mcre levy of the constable, so that the defendant bad between thirty and forty days from the time the execution first came to his hands, to execute it. I give no opinion in a case where an execution issues to a sheriff and is a lien on property, and a constable under an execution of junior date, seizes and sells the property, before the sheriff had it in his power to levy upon and seize, it. I think, in this case, the defendant made a false return, and that he was also guilty of neglect in not satisfying the plaintiff’s execution out of Brown's property.

Henderson, Judge

In this case I wish not to express an opinion upon the priority or preferable right to satisfaction, of the executions; but if a posterior execution could, by being levied by another officer, as by a constable, or the United States’ marshal, gain a preference over one in the sheriff’s hands, I think that the possibility of such preference being gained should quicken the exertions oi the sheriff, even beyond what the common law required: for by that law there was no such danger, there being but one person in the county fthe sheriff) to execute process; and where there are two persons in one county exercising the office of sheriff, as in Middlesex, they both form but one officer, the act of the one is the act of both, and both must be sued. And the law guards the right of the plaintiff against voluntary alienations of the debtor. The sheriff should, therefore, proceed with all convenient speed to levy the execution / in his possession. His omiting to do so from the 7th of October to the 1st of November, and more particularly on one so shortly thereafter returnable, to wit, on the third Monday of November, was a neglect which rendered him liable; and this would be neglect, I think, independent of the possibility of the property being taken *555by posterior executions, and if no such risk existed, that is. that posterior executions could not gain the pre-1 r ferenee. then his return of mala oona was false, for there was property in the defendant’s possession and liable to the plaintiffs’ execution when the sheriff went to the house of the defendant. As to the plaintiffs’ hastening the sheriff by a request to proceed immediately, he seeks not to recover for want of extraordinary exertions; but l'or the want of those exertions which the nature of his office required, by barely having the execution put into his hands. If the plaintiff had sought to have recovered for any loss sustained by want of extraordinary exertions, which the peculiar circumstances of the case might have required, then those circumstances should have been communicated to the sheriff, with a request to proceed immediately in the execution of the process. So that take it either way, that the constable’s executions had gained the preference, or that they liad not, I think the sheriff was guilty of neglect, and is therefore liable. This opinion is founded on the facts declared on the record. It is not intended t© preclude the sheriff from showing facts or circumstances why he did not go sooner to the debtor’s house, or any other fact amounting to a justification. I simply mean to say, that omitting from the 7th of October to the 1st of November to make an attempt to levy an execution, returnable on the 3d Monday of November, unaccounted for, is in law neglect, and that the person who has sustained a damage thereby may recover. I therefore concur in the opinion of my brother IIaxi, that a new trial should he granted.

The Chief Justice concurring also: by the Court,

Judgment reversed.