#### Richard F. Yarborough & Nathan Perry v. The President & Directors of the State Bank.

¡>From Franklin.

A levy made and returned, is waived by taking out an alias fi. fa. A venditioni with an alias fi. fa. clause, is the proper writ to keep up the lien created by the levy, and the relation of the process, to the taste of the original fi.fa.

An alias fi. fa. although founded on one which was returned “ too late to hand,” has a lien on goods from the teste of the first.

A Sheriff has a right, at his own peril, to apply money raised under final process, to any writ in his hands. Therefore, where a Sheriff had a number of fi. fas. in his hands, of equal teste, one of which was an alias founded on a prior return of “too late to hand,” anil being indemnified by the Plaintiff in a junior fi. fa. sold property, \ and returned that he would not have acted under any of the writs, without an indemnity. It was held, that the Sheriff, by his return, had appropriated the money made, to the writ on which he was indemnified, and that the Plaintiff in the junior fi. fa. was entitled to it, not only in preference to those writs which were in all respects equal to his, but also as to the alias.

Is the Sheriff bound to act under an execution at his own peril, and can he in any case, demand an indemnity. Qu ?

If bound thus to act, is the above return false, as to the other writs in his hands. Qu P

At June term, 1828, of Franklin County Court, the Sheriff of that county had in his hands the following writs oijierifadas, all, except those issued by a Justice of the Peace, tested of the preceding term of that Court, viz.,

No. 1. In favor of the State Bank against Thomas Yarborough, Lark Fox and James 0, Jones, issued the Míe 1 "tb March, 1.828,

*24Dec. 1828.

No. 75. In favor of the same Plaintiff against Thomas Yarborough and Henry Y. Ilouze, issued the 4th of April, °

yQm jn faVor of Samuel Robinson, against Thomas Yarborough, also issued on the 4th of April, 1828.

No. 10. In favor of Richard F. Yarborough, against Thomas Yarborough, issued the 27th of March, 1828.

No. 8. In favor of Sylvester Sledge, against Thomas Yarborough, issued the 27th of March, 1828.

AH of these were original writs, except number 10. which was an alias fi. fa. the original of which had been returned " too lato to band.” At the same time, the Sheriff had in his hands two alias fi. fias, in favor of Nathan Perry, issued by a Justice of the Peace on the 16th of May, 1828, and returned as levied upon a colt, which was sold for 25 dollars, to the Plaintiff in the execution. The last mentioned writs were founded on two fi. fas. issued the 18th day of February, 1828, which were returned "levied the 19th February, 1828, on one negro man Edmund, and on the 12th May, 1828, on a wagon and colt.”

On these several writs, the Sheriff made the following return. “ All the above writs of fi. fas. (setting them “ out specially-) came into my hands before I took any “steps on any of them. No. 1, the first, No. 10 next, “No. 8 next, Nos. 75 & 76 together, and before I levied. “ With all of them in my hands, I was requested by “ Lark Fox and James C. Jones, to seize upon the pro- “ perty of Thomas Yarborough, to satisfy the execution "No. 1, and to induce me to do so, they gave me an indemnity on the 1st of April, 1828, and accordingly on "the 4th of April, 1828, 1 seized the following negroes, "having in company with Fox and Jones, spent several “ days in pursuit of them.” (The return then set forth the names of the negroes, and the result of the sales, showing the. sum of 615 dollars as all received, which was paid into Court, but was far short of the aggregate *25amount of the executions, and that no other property of the Defendant was to be found). The Sheriff then returned that “ without an indemnity, I should not have “levied any of the aforesaid executions on tiie said ne- “ groes, because they were claimed by J. L. as a Trus- “ tee. On the day of sale, Lark Fox and James C. Jones> “called out aloud, and expressed a willingness that any “other persons might join in the indemnity who pleased* “ No one did join. — Whether the Plaintiffs were present “ or not, I cannot say, but 1 think they were not, except “ D. M. Lewis, the agent of JL F. Yarbrough, who re- “ fused to enter info the general indemnity, given by “ Fox and Jones, but offered an indemnity for selling to “ the amount of R. F. Yarbrough’s execution, but no fur- “ ther. At the time of the above levy, I had in my hands “the two executions herewith returned, issued by a Jus- “ tice of the Peace, (those set forth above,) with them I “ also return the sum of twenty-five dollars, and submit “ the whole case to the Court.”

On a rule obtained by R. F. Yarbrough and Nathan Perry, the Comity Court directed the sum of G15 dollars paid into office by the Sheriff, to be applied exclusively to the satisfaction of execution no. l, and the sum of twenty-five dollars made by the sale of the colt, to be applied exclusively to the satisfaction of II. F. Yarbrough’s execution, (no. 10) ; from which judgment R. F. Yar-brough & Nathan Perry, appealed to the Superior Court,

On the last Fall Circuit, his honor Judge Norwood, reversed this judgment, and directed that the money paid into the office by the Sheriff, should be applied first to the satisfaction of the execution in favor of Richard F. Yarbrough, (no. 10) next to the two executions issued by the Justice, in favor of JYathan Perry, and that any balance should be applied rateably to the discharge of all the other executions. From this judgment, the President and Directors Court. oi the State Bank appealed to this

*26Badger, for the Appellants,

insisted 1st, that in reason and justice, the party who gave the indemnity, and who was the moving cause of making the money, should [)e f¡rs¿ He contended, that the case of Green v. Johnson, (2 Hawks, 309) was decided upon its particular facts, and that no cause in this Court had gone the length of settling, that the Plaintiff in a prior execution, without any exertion or responsibility, can take advantage of the risk and diligence of the Plaintiff in a junior execution, and absorb the product of that risk and diligence. As to those executions, which were in all respects equal to that of the Appellants, the latter having in his favor active diligence, has the advantage throughout.

2d. He contended, that the offer of Yarborough, to indemnify to the amount of his execution, was illusory, and left, him all the benefit at the risk of the Appellants.

3d. That the original jfi- fa. on which Yarborough’s alias issued, being returned <£ too late to hand,” it gave him no priority — the alias must be considered as having its binding force from its own teste only, and not that of the writ upon which it was founded ; as to give the Plaintiff a priority, lie ought to do something which clearly shows an intention to press his execution — he ought to put it in the hands of the Sheriff, in time for the latter to make a levy, and do nothing to disturb the execution of it.

4th. He contended that the Judge, below, had clearly erred in directing the Justice’s executions in favour of Ferry, to be satisfied, the teste of all the other writs overreached their dates — and as the Plaintiff in them had not taken a venditioni exponas, he had given up the advantage of his prior levy, for this was cited Doe ex dem. Amyctt v. Backhouse, (3 Murph. 65).

W. H. Haywood, contra,

insisted that under the decisions of this Court in Brasjield v. Whitaker, (4 Hawk’s *27309) Green v. Johnson, (2 Do. 309) Gilky v. Dickinson, (Bo. 341.) Richard F. Yarborough was entitle to a pri-v s * ority. He contended that his offer to indemnify the Sheriff to (he amount of his execution, was fair and reasonable, and all that a prudent man could do. By forcing him to join in a general indemnity, his interest was thereby complicated with that of many others, from which it was perfectly distinct, and he was made to guarantee the solvency of all the Plaintiffs in the executions.

Henderson, Judge.

I understand very distinctly from the Sheriff’s return, taking it all together, that he raised the money brought into Court, except $25, upon the execution in which he was indemnified in acting by Fose and Jones, and which he identifies in the return as no. 1. For although he sets out at large all the executions which came-to his hands, he expressly says that he required an indemnity before he would act in any, and that when he did act it was in consequence of the indemnity. Thus in my opinion, he exclusively appropriated the proceeds of the property seized, to that execution under which he declares that he acted ; and that as to the other executions, he returns that lie found no property of the Defendant Yarborough wherewith to satisfy them. We can in no other sense understand his return ; for he still holds to his indemnity, which he cannot do without thus appropriating the money. To make his return consistent throughout, we must so understand him ; and if it be false as to the other executions, he is liable for its falsify to the Plaintiffs in them, and if subjected, according to his own delarations, he will have no right to complain, for he expressly says that had he not been indemnified, he would not have seized the property which produced the $615. He will then be placed in the situation in which he would have-placed himself, as he says, but for the indemnity, and as the indemnity given by Fox and Jones put him in action, it is *28{jUt fair to give them on.whose behaif they acted the benefit of that action. In cases where the Sheriff has ia |ian(js Qloro than one execution, it is ceriairily corn-potent for him to act under either, and subject himself for an improper preference. In this case the Sheriff has attempted to retain his indemnity, and not to secure to those who indemnified him the benefit which was to result to them, as he still clings to the indemnity, and will not appropriate the proceeds of those acts, which lie acknowledges arose solely from it, to the benefit of those who gave it. I wish to express no opinion, whether the Sheriff, can even in cases of doubt and difficulty, require an indemity ,* whether he is not bound to act at his peril. It is sufficient that in this case he has accepted and acted under one.

As to the indemnity offered by Lewis as agent of S. F. Yarborough, it is sufficient to say, as far as these Appellants are concerned, that it was not given. As to the §25, I think that it should be applied to the alias execution in favor of II. F. Yarborough, for although the original execution issued too late to enable the Sheriff to act under it, yet I think that it created a lien on the goods from the teste, according to the decision of this Court in the case of Brasfield v. Whitaker, which lien was continued by the alias. Although there is something like an appropriation by the Sheriff of this money to the Justice’s executions, for he returns it with them, yet it is not sufficiently explicit to warrant us in saying that he has done so, for I infer that he has left that matter to the Court. The priority acquired by the levy of the first Justice’s execution, I think was lost by taking out another general Jf. fa.

Hall, Judge.

The money made by the Sheriff, was first directed to be applied to the discharge of the alias execution of Richard F. Yarborough; the original execution which preceded it was returned by the Sheriff, too *29 late to hand. It does not appear that it had been put into his hands in time for him to act under it; if not, it . _ , ,. ' , created no hen, and ot course the alias execution must share the fate of those with which it bears equal teste. The second application of the money by the Sheriff was directed to the discharge of Nathan Perry’s executions. They are dated the 16th day of May, A. D. 1828 ; had each heen preceded by an original execution bearing date the 18th day of February, 1828, which were returned, “ levied upon one negro man Edmund, a wagon and a eolt, the property of Thomas Yarborough-” if a venditioni ex-ponas with an alias fi. fa. clause, had afterwards issued, such process wmuld have continued the lien upon the Defendant’s property, from the teste of the first writs, provided they had no t been satisfied by the proceeds of the sales under the venditioni exponas, which might have been the case. But as no venditioni exponas issued, the alias fi. fas. can have no preference over executions bearing equal teste, and must yield to those which are before them.

The return of the Sheriff is made part of the case, and must be taken as true. In deciding upon that, it is not intended to decide any question between the Sheriff and the creditors, but only those arising between the execution creditors.

Then it is assumed as a fact, that in case the indemnity had not been given, the Sheriff would not have levied upon the property ; because it was too doubtful whether the Defendant had any title to it — whether the title had not passed from him. As the State Bank or its agents indemnified him, and must suffer in case the property proves not to be the Defendant’s, so they ought to be gainers, and have their execution satisfied in case it turns out to be his. This seems to be the justice of the case, and no principle of law has been shown that impugned it.

*30Per Curiam. — Let the judgment be reversed, and apply g615 of the money in office, solely to the satisfaction 0f j.|ie execut¡on i„ favor of the State Bank against Tho~ mas Yarborough, Lark Fox and James C. Jones, and apply the remaining 25 dollars to the satisfaction of the execution in favor of R. F. Yarborough.