June, 1830.

#### Amos Palmer & Company v. Elijah Clarke,

l-From Craven.

Where the conduct of the parties is bona fide, a fieri facias of a senior teste is entitled to a priority, and those of equal teste to an equality in dividing the proceeds of sales made by the Sheriff, without reference to the time of their delivery to the Sheriff — provided all are delivered before the return day, and before the sale.

But where a Plaintiff prevents his execution from being acted on, he is guilty of a legal fraud, and is postponed as to creditors who have endeavoured to enforce their judgments.

If a Plaintiff instructs the Sheriff not to sell under his execution, unless some other creditor forces a sale, he loses his priority.

But these rules apply only between judgment creditors — as between them and the vendee of the Defendant, all executions have the preference.

When several writs of fieri facias have been issued on the same judgment, and have all been bona fide acted on, without producing satisfaction, the last of them relates to the teste of the first, and binds the property of the Defendant from that time.

But where the original, or any intermediate writ, never was delivered to the Sheriff, the lien is not carried back beyond the one on which the Sheriff proceeded.

Upon rules on the Sheriff to apply money in his hands to particular writs, the Court proceeds solely on the facts stated in his return. Affidavits of extrinsic facts will not be heard.

The case of Green v. Johnson (2 Ilitwks 309) disapproved, but submitted to as authority, by Buiror Judge.

The Plaintiffs at November term, 1828, of Craven County Court, obtained a judgment against one Harvey. From the ensuing February term, a writ of fieri facias, purporting to be an alias, issued upon that judgment. Other judgments were entered up against Harvey at the same term, upon which original writs offi.fia. issued. Tiie Sheriff returned upon the execution of the Plaintiffs, and upon those which first issued from February term, that he had sold all the property of Harvey — that after satisfying other executions which were prior to that of the Plaintiffs, he had iu his hands a sum equal to the satisfaction of the latter, if it had a priority — and *355that he never had in his hands any other execution upon the judgment in favor of the Plaintiff, except the one ftoo vC“Hicn tioncd*

A rule was obtained by the Plaintiffs upon the Defendant, the Sheriff, to show cause why the money in his hands should not be applied to the satisfaction of their execution. Upon the return of the rule, affidavits were filed on both sides, subject to all just exceptions. From them it appeared, that the Attorney of the Plaintiffs had agreed with Harvey, for a judgment at the return day of the writ of the Plaintiffs (November term, 1828) upon condition that execution should not go into the hands of the Sheriff until after February term following — that in pursuance of this agreement, the Attorney took out an -original execution returnable to February term, 1829, which he retained in his own possession until the return day, when an alias, the writ in question, issued, which was delivered to the Sheriff. It further appeared, that the object of this arrangement was to give to the Plaintiffs a priority, without subjecting Harvey to the costs of levying the execution.

At the request of the parties, his Honor Judge Dosr-NEi.ii, pro forma, discharged the rule, and the Plaintiffs appealed.

Gaston, for the Plaintiffs,

insisted, 1st. That an execution bearing the earliest teste, was entitled to be satisfied wholly, in preference to those of a junior teste; far this be cited Green v. Johnson (2 Hawks 309.)

,2. That an alias fieri facias relates to, and binds the property of the Defendants from the teste of the original. (Brasfeld v. Whitaker, 4 Hawks 309.)

3. That this efficacy of the alias writ, did not depend upon the fact that the original had ever been placed in the hands of the Sheriff. (Yarborough v. State Banks ante p. 25, Gilky v, Dickerson, 2 Hawks, 341, 3 do-293.)

*356 Badger, contra,

cited Kellogg v. Griffin (17 Johnson’s ^eP' 274)'

Ruffin, Judge.

Although my opinion would have coincided with that of the dissenting Judge, in Green v, Johnson, and for the reasons given by him, I yet surrender it in deference to the majority of the Court. The rule then established has since been several times acted on i and repeated decisions of the Court have an authority, which a Judge has no rightful power to disregard. But I cannot carry the rule further, by following out its supposed analogies, so as to work injustice to parties, afford facilities to fraud, encourage delays, and annul other rules, equally well established. Before that case, the law was understood to be, that as against alienations by the debtor himself, a jl. fa. bound from the leste ; but as between creditors, that first delivered to the Sheriff had the preference, or rather that it created an obligation on the Sheriff to apply the money to it. I admit that it is now altered to this extent: that where the conduct of the parties is fair and Iona fide, an execution of elder teste is entitled to the preference, and executions of equal teste to an equality x and the time of the delivery makes no difference, where nothing else appears.; provided all were delivered before the return day and before the sale. But this cannot apply to a case, in which the party keeps his writ in his pocket, for the very purpose of preventing its being acted on. Such conduct constitutes a legal fraud ; and he, who is guilty of it, must be postponed to him, who has duly and diligently enforced his judgment by process. I should have thought indeed, that this principle applied to executions of any teste, which the creditor failed to deliver to the Sheriff. His negligence merited the loss of his debt, as against ano-,, ther creditor, who, being more vigilant delivers his writ, and takes the risks'of a seizure. Besides the Sheriff has a right t<> some reasonable rule, arising upon the facts within his own knowledge, for the application of the. me-*357ney. But certainly Green v. Johnson altered that in a certain degree 5 and I submit thus far ; but I cannot extend it. It is well settled, that if a Plaintiff deliver his writ to the Sheriff and order him not to proceed, until some other creditor press him, on further execution, when he is to enforce the lien created by the first writ, the creditor giving such orders, loses his preference ipso facto. (Kellogg v. Griffin, 17 Johns. 274.) This rule was recognised by this Court in Carter v. Sheriff of Halifax. (1 Hawks, 483.) For the law does not encourage men to try experiments, how long they may indulge their debtors in safety to themselves, when in so doing they give them a delusive credit, at the expense of others. Fair dealing consists not in keeping incumbrances hanging over a debtors property, of which he is left in possession j but in proceeding at once to the satisfaction of the debt, and leaving the balance unfettered to answer others. Now in every case where the execution is not delivered, this presumption is much stronger than where it is delivered, accompanied by orders not to sell. For it cannot but be, that the suing out the execution is a mere cover to the property, by means of a lien not intended to be enforced. There is not the least purpose of obtaining that satisfaction, which is the fruit of the law, and for which the writ is given. This is very different from the case of alienation by the debtor. There indeed the property is bound. (Due v. Irvine, 2 Hawks, 233; Gillkey v. Dickerson, 3 Hawks, 293.) The reason is, that as to a purchaser, the law says caveat emptor. The estate is bound as against the Defendant in the execution,, and so it shall be as against his vendee, because he can sell no more than he has, and every purchaser is presumed to buy on the responsibility of the seller. Biit it is very different with another execution' creditor. He claims against both the Defendant and the prior execution 5 and the law will not endure, that its process shall he defeated by such acts, as inevitably enure chiefly,- if *358,10† entirely, to the advantage of the debtor. If the judg-men^ creditor indulges in such case, he trusts tiie debtor j and he must trust him at his own risk. When other crc-¿¡tors are concerned, delay tends to deceive and embarrass them, by protecting the property for the Defendant’s use.

The fact that Palmer & Co.’s execution purports on its face to be an alias makes no difference. It would, if the first had been Iona fide acted on ,• for if the party does all he can, issues his execution, but cannot find property to seize or bidders to buy, he is not to blame. In that case, all the subsequent writs relate to the first. Such iiave been the facts in all the cases heretofore in this Court. If in any of them it had appeared, that the original or any intermediate execution had not been delivered, the lien would not have been carried back beyond that one, on which the party last proceeded. In plain terms, priority of judgment or execution shall give no preference, where the Plaintiff takes no steps effectually to enforce them, or after issuing execution, arrests by his own act the progress of the Sheriff in the discharge of his duty. Palmer & Co. are therefore only entitled to a pro rata application of the money.

The case is decided entirely on the return of the Sheriff ; for he makes it at his peril, and if false we do not intend to preclude the parties from their redress. But if we felt at liberty to look into affidavits, our views of the law would only be sustained by the facts disclosed in this case. The Plaintiff’s attorney explicitly states, that the agreement between him and Harvey was, that he might take out execution, but not serve it before the next Court. What is this but a bargain between the debtor and creditor, to create a lien, but not to use it. This would suit Harvey, if it remained so forever. He keeps the undisturbed possession, and has the full enjoyment of liis property* If this were permitted, undue preferences would be constantly given, for the sake of the debtor’s *359'ease, and just creditors defeated. Retaining the tion is conclusive of the intent; and the evidence here expressly shows, that the general inference of law is in this case justified by the fact.

Per Curiam. — Let the judgment below be affirmed.