#### STATD TO THE USE OF W. W. BODDIE vs SAMUEL W. VICK & AL.

June 1843

A memorandum, made by an officer in a private memorandum book, of the time of the levy of an execution, is no evidence for him.

Executions from justices of the peace are entitled to priority, as between themselves, according to the time at which they came to the officer’s hands.

If an officer neglect to levy first an execution from, a jutice, which first comes to his hands, he and his sureties are liable to the creditor having such execution.

The cases of Loften v Huggins, 2 Dev 10 ; and Green v Johnson, 2 Hawks 309, cited and app.oved.-

Appeal from the Superior Court of Law of Nash County, at Spring Term, 1843, his Honor Judge Manly presiding.

This was an action of debt upon the official bond of the defendant Tick, as Sheriff of the county of Nash, the bond containing the usual conditions for the faithful discharge of his duty as Sheriff. Breaches of all the conditions were assigned.

It was proved that the 30th of May next after the date of the bond, judgments before a justice of the peace were obtained in favor of the plaintiff against James C. Stephens, and on the same day executions on these judgments were placed in the hands of the defendant Vick, as Sheriff, for collection. About a week afterwards, the relator of the plaintiff, hearing that a sale by a constable was advertised of some portion of his debtor’s assets, enquired through his son of the defendant Vick, what was the then state of his demand ; upon which Vick informed him they were levied and had priority of other levies. Vick also claimed, in a *489conversation with a constable, to have a prior lien upon phen’s property, by virtue oí his executions in iavor of Bod-die, which wasuconeeded to him. Upon another occasion, when Vick advertised a sale of Stephens’ property under sundry executions, the son of Boddie attended as his agent, and when asked by Vick if he intended to bid, said he did, if his father’s executions were first. Vick then told him that his father’s executions had the preference over others,- but, after conversing with Stephens apart, he requested the son not to bid, as the debtor was going away soon, and wanted to keep his property till that time — that his father would then certainly be paid, as his executions were first and bound the property. Mr. Boddie acquiesced and the property was offered but not sold for want of a bidder. The defendants introduced evidence of judgments before a j'ustice in favor of other persons against Stephens. Only one execution on these judgments was produced, and there was no memorandum of a levy entered on that. A memorandum book was introduced by Vick, in which he had entered levies made by him in virtue of excutions upon the foregoing judgments, and also in virtue of Boddie’s executions. From this the levies appeared to have been all made on the second of June, three days'after the reception of Boddie’s executions. Evidence of the entries in the memorandum book was objected to by the plaintiff’s counsel, but received by the court. Boddie’s judgments and executions were not produced. It was also in evidence on the part of the defendants, that the property levied on was sold and divided rateably among all these creditors, there not being enough to satisfy all. The court instructed the jury, that the sheriff, in collecting claims put into his hands for that purpose, was bound to use strict diligence and good faith, and if he failed in either of these respects, whereby the-plaintiff sustained a loss, he was bound to make good that loss. The sheriff’s entries in regard to the levies were at best but prima facie evidence of the facts stated in them ; and the jury were charged to inquire upon the whole of the facts before them in relation to this point, how the truth was. If the defendant had levied the execu*490tions in favor of Boddie first, it would be his duty to satisfy them first, and his failure to do so would make him liable to the plaintiff in this action for the residue of his debt. If the levies were made at the same time, and rightfully so, aud afterwards the defendant Vick faithlessly represented to Boddie’s agent that his executions had the priority, whereby Boddie was lulled into a false security and induced to cease his efforts to secure his debts, and in consequence thereof they were lost; this would amount to a breach of his bond, and the plaintiff would be entitled to recover what he had so lost. If, on the contrary, the jury believed the levies had been made in accordance with the defendant’s entries, and there had been no want of good faith or diligence in the attention to Boddie’s claims, they should return a verdict for the defendants. If the jury arrived at the conclusion, that, although there might have been a breach of duty on the part of the defendant Vick, in respect to the degree of diligence and good faith required of him, yet if no especial damage to Boddie resulted therefrom, he would be entitled to a verdict for nominal damages, The property, levied upon by Vick under the executions above mentioned, was indisputably sufficient to satisfy Boddie’s executions. The jury returned a verdict for the plaintiff and assessed thedam-ages to the residue of Boddie’s debt after deducting the sum he had already received. An ineffectual motion was made for a new trial, and, judgment having been rendered pursuant to the verdict, the defendants appealed.

J3, F. Moore for the plaintiff.

W. H. Haywood for the defendant.s

Ruffin, C. J.

The Court has not thought it worth while to consider, whether, if all the executions were in fact and properly levied at the some time, the sureties of the sheriff would be liable on his official bond for his falsehood in informing the relator, that his execution was entitled to priority by having been served first. For, we think, there *491are other clear grounds, on which the judgment should be affirmed,

There is full evidence of the relator’s execution, of its delivery to the sheriff, and of the levy of it on sufficient-property to satisfy it, and of the sale of the property. That forms in itself a case for a recovery. The defence against it is, that the sheriff had other justice’s executions which he levied at the same time, and that the money raised is consequently divisible rateably among them all. If that were true in law, yet the defence must fail because it does not appear to be true in fact. There is no legal evidence that the other executions were levied together with the relator’s. All that was offered was a memorandum of the sheriff — made, we know not when — in a private book of his own. To the admissibility of it the plaintiff objected ; and the objection, we think, is good. A levy endorsed, on the execution has been received as prima facie evidence for the sheriff, upon the ground that such an entry was a cotemporaneous official act, being a part of his return. Loften v Huggins, 2 Dev. 10. But this is not an act of that sort; and for the falsehood of it the officer would be in no wise responsible. It would lead to great abuses, if sheriffs were permitted at remote periods, to give evidence of this nature, which might be fabricated by them post litem.

If, however, the levies were made at the same time, the judgment ought, as the case is, to be against the defendants. It is not positively stated when the executions of the other creditors came to the sheriff’s hands. But we are obliged to understand that it was after the relator had delivered his ; because the contrary was not suggested, and because the sheriff repeatedly declared that Boddie’s were the prior executions. The defence was placed solely on the fact of a simultaneous levy. Now, we hold it clearly to be the duty of the sheriff, as between executions issued by á justice of the peace, to serve that first which came first to his hands.— This is not within the rule of Green v Johson, 2 Hawks 309 ; but, on the contrary, the reasoning of all the judges there shews it to be governed by an opposite principle. — ■ *492That case proceeds on the ground, that & fieri facias binds from its teste, and, as the majority of the court thought, it thus binds as against another execution. It was therefore ^ held, that executions from a court of record of the same teste were equally entitled, and that one of prior teste was first entitled to satisfaction, without regard to the period of delivery to the sheriff or of the levy; provided they all came to hand before the sale. For that reason, that case was dis'.in-guished from Smallcomb v Buckingham, 1 L’d Ray. 251, and other English cases upon priorities among executions. But that has no applicatiou to a case in which the lien of the execution is not from the teste, but from the delivery to the sheriff, or the levy by him. Such is now the law with respect to executions issued by a justice of the peace; which, by the act of 1828, Rev. St. c, 45, s. 16, “ bind by and from the levy.” As to them the rule of Smallcombe v Buckingham, ought, obviously, to prevail; because the law serves the vigilant; and because the sheriff should first do his office for him who first applies, The only exception is; when the process of one creditor, in itself, creates a preference, as, for example, being of an older teste, when the lien depends on the teste. But when a creditor places his process in the hands of an officer, it is his duty promptly to execute it, so as to prevent other creditors from coming in before him who has asked his services •; and if he is prevented from doing so on the instant by other official duties, or omits it from any other cause, he ought, when he does levy, to preserve the priorities as if he had promptly done his duty. That is a rule of sound justice ; and it is the only one that can be laid down, without leaving creditors to the caprice or negligence of the officer. Our act, like fhe English statute of frauds, operates only between creditors and purchasers from the debtor. As between execution creditors, it leaves the duty of the sheriff to be regulated by the general principles of good morals and justice; which certainly re» quires that he who comes find shall be served first.

Judgment affirmed. Per Curiam.