#### Kennon *vs*Ficklin and Peck.

Error to the Fleminn Circuit.

Chancery.

*Case*86.

‘fhe case stated.

Decree of the Circuit CourU

*Attaching creditors. Priority of lien.*

*April*25.

Chief Justice Ewing

delivered the opinion of the Court.

This is a controversy' between attaching creditors, as to the distribution of the fund attached, their cases against an insolvent debtor, and guarnishees, who owed him, being all heard together. It seems that Kennon’s bill was first filed, and h¡3 process first placed in the hands of one deputy;.that afterwards, on the same day, Ficklin and Peck, each with a knowledge of the fact, and with a view to overreach the claim of Kennon, filed their separate bills, sued out process, and placed the same in the hands of another deputy, who .executed the same first, each deputy using reasonable diligence in the execution of the process put into each of their hands.

Upon the hearing of all the cases together, the Court gave priority to Ficklin and Peck, decreeing to them the fund due from the guamishee, upon the ground that process was first served on them in the cases of Peck and Ficklin.

*415it is the duty of thaíprooessfet wbioh , , first and if two exethehands^f ai£ onhesamehigh Sheriff, against dantr^he^probyetther deputy sll°,lll¿bf appli" tion first in the (i *b. Mon.*310)

D ty Sheriffs are the mere »- cipaisheriíryand theyde° presto execute process of execution or attach-to"1’in" which by^hTd^utS1!

—But if that which is last in h°ÍXV°either ^pilty£,e without*3 faui") ineoasesa"aUac¿ .TM?.nt> N11 /is,‘ tribute the fund amongst the attoreiifthe orfmc"ss was placed tlie hands op the _ principal shenff-

While it is conceded that in the case of distinct officers, the first levy gives the prior lien, yet in the case of the same officer, in the discharge of impartial justice between litigants, it is his duty, and that of bis deputies, to levy that first, which first came to his or their hands; and if his deputy levies the junior execution first, it is his duty, upon being apprised of the fact, to pay the móney to the plaintiff in the senior execution, as was determined by this Court in the case of *Million*vs *Commonwealth, for the use of Withers,*(1 *B. Monroe,*310.)

Though there is not a perfect -analogy between the execution of original process or process of attachment, and the levy- of an execution, as the office of Sheriff is one, and his deputies his ownagents.it is his duty, in the discharge of impartial justice between litigants, to execute, and require his deputies to execute all process in the order in which it comes to the hands of either. And the statute, with a view to preserve the time, requires the Sheriff to indorse on the process the time of its recen- • 1 . R tion ; (1 *Stat. Law,*339.)

The junior process, it is true, where there are several deputies, may be sometimes first served without fault on the part of the principal or either of his Deputies, as in , *c ,*,, . the case before us, when the process in one case was placed in the hands of one deputy, and in other cases in the hands of another, the latter not knowing of the prior process in the hands of the former. Each are required to use due diligence in the execution of the process placed in his hands, and in the exercise of all reasonable diligence on the part of both, one may succeed in the execution of his process first. If that should be the junior process, it would be hard to make the principal liable to the plaintiff in the senior process; nor is it just, neces■sary, or proper, in' such a case, to make him responsible,

The process in all the cases being served, and the fund attached being in the power and under tbe control of the Court, and all the parties before the Court, the Chancellor should, in the distribution of the fund, exercise that same impartial justice between the parties, which should have been observed by the officer, in the execution of the process. As with him the first come should be first *416served, if he or any of his deputies has been seduced, or by trick or stratagem, deluded into the service of the junior first, or if this should happen in the exercise of due diligence on the part of the officers, the Chancellor having the control of the fund, should distribute it as it would have been distributed had the officer executed them in the order in which they came to hand.

*Hard*for plaintiff: *Beatty*for defendants.

The decree of the Circuit Court giving priority to Fick1 in and Peck, to the demand against Henry and Bett, is reversed, and cause remanded, that a decree may be rendered giving the priority arid preference to Kennon, in the distribution of this fund.