#### *Pegram v. May.

January, 1838,

Kichmond.

(Absent Cabell, J.)

Executions — Commencement ot Lien — Delivery to Officer* — Case at Bar. — A creditor delivers a fi. fa. to a deputy sheriff acting in a different district of the county from that in which the debtor resides, in order by such delivery to bind the debtor’s property, but with directions to the deputy to hold it till a future day, and then to transfer it to the deputy of the district in which the debtor resides, to be by him levied, unless the debt should be paid in the meantime, or unless the deputy should bring his property to the district of the first deputy to be sold, in which case the first deputy was to levy the execution upon it: Held, the execution binds the goods of the debtor from the date of its delivery to the first deputy — dissentiente Brooke, J.

In an action of detinue for a slave, brought by Nathaniel Pegram against David May, in the circuit court of Dinwiddie, and thence transferred to the circuit superiour court of Greensville, there was a case agreed, stating the following facts.

1. That though there are a corporation *72court and a circuit superiour court established for the town of Petersburg, and though there is an officer of the corporation called the serjeant, who is the executive officer of those courts, yet that part of the town which lies in the county of Dinwiddie, hath anciently always been, and yet is, in many respects, within the jurisdiction of the courts of that county, and the sheriff of the county has many official duties to perform, especially in the execution' of civil process against persons resident in the town ; and, in October 1823, Roger Mallory was the serjeant of the town of Petersburg, and at the same time deputy of Edward Watkins, sheriff of Dinwiddie.

2. That John May having recovered a judgment against John Scott, in the circuit court of Petersburg, sued out a fieri facias thereon, and delivered the same *to Mallory; and Mallory, at his instance, made the following endorsement on the execution — “Came to hand 28th October 1828, Roger Mallory deputy of Edward Watkins sheriff.”

3. That the county of Dinwiddie was, at that time, divided into several precincts, to which the deputies of the sheriff were respectively arrang-ed, and were, by agreement among themselves and with the sheriff, _ confined; by which arrangement the duties of Mallory as deputy sheriff were confined to the town of Petersburg, and did not extend, nor could he consistently with that arrangement and agreement serve any process, in the county beyond the limits of the town.

4. That Scott the debtor against whom May’s fieri facias was sued out, had no property in Petersburg, and lived about thirty miles from the town, in a precinct- of the county, in and for which Thomas Field was the deputy sheriff.

5. That all the facts above stated were well known to May, when he placed his execution against, Scott in Mallory’s hands; and he did not expect or require Mallory to go beyond the limits of the town of Peters-burg to execute it; but he put it into Mallory’s hands in order to bind the property of Scott, the debtor, and to be held by Mallory until the following November term of the county court of Dinwiddie, which was on the third monday of the month, when (unless the debtor Scott should pay or secure the debt in the meantime, as he had promised) the execution was to be transferred to the hands of Field, the proper deputy of the precinct in which Scott lived, to be by him levied ; yet Mallory was instructed, that if Scott should bring any of his slaves to Petersburg for sale (as May apprehended he would) he should levy the execution on them.

6. That while the execution yet remained in Mallory’s hands, namely, on the 29th November 1828, Scott executed a deed of trust, whereby he conveyed the *slave which was the subject of this suit (among other property) to Abner Adams, in trust' that he should sell the mortgage subject, and out of the proceeds of sale pay sundry debts therein mentioned and secured, and among others a debt due to Pegram the plaintiff in this action ; that Scott, on the same day, executed another deed of trust, conveying other slaves to a trustee for the security of other debts, in which last mentioned deed of trust the deputy sheriff Field was personally interested as a cestui que trust; and that both the deeds of trust were duly recorded on the day of their date.

7. That while May’s execution against Scott was still in Mallory’s hands, namely, on the 15th of December 1828, Adams the trustee in the first mentioned deed of trust, sold the trust subject, and (with the rest) the slave for which this action was brought, of whom the plaintiff Pegram became the purchaser, and Adams delivered him possession thereof and gave him a bill of sale : and that this sale by the trustee Adams was made at Dinwiddie courthouse, on a court day, in the presence of Field and other deputies of the sheriff, and was not forbidden or opposed by them', or any other person.

8. That, after this sale of the slave in question by the trustee Adams to the plaintiff Pegram, but before the return day of May’s execution against Scott, that execution was, by May’s directions, transferred by the deputy sheriff Mallory to deputy sheriff Field : that Field levied it upon the slave in question, then in possession of Pegram under the sale thereof to him by the trustee Adams ; and afterwards made due sale of the slave, under the execution, to the defendant David May, who received possession from the sheriff, which he still held.

The question referred to the court was, whether, upon the case agreed, the plaintiff or the defendant had title to the slave ? *The circuit superiour court held that the law upon the case agreed was for the defendant, and gave judgment for him. The plaintiff applied to a judge of this court for a supersedeas to the judgment ; which was allowed.

The cause was argued here, by Stanard for the plaintiff in error,

and May for the defendant, upon the following objections taken by the former:

1. That the fieri facias in the hands of the deputy Mallory, did not bind the property of the debtor Scott; and therefore no title was acquired by May, the purchaser under the execution, which overreached the title acquired by Pegram by his purchase under the deed of trust. That an execution does not bind the property in the goods of the debtor against whom it is sued out, but from the time the writ is delivered to the sheriff “ to be executed 1 Rev. Code, ch. 134, § 13, p. 529, and the execution in question was not delivered to the deputy Mallory, to be executed, but the levy of it was to be made on a future contingency, and then by the deputy Field ; and until it was handed to Field at a date subsequent to that at which Pegram’s title accrued, it was not delivered to be execute^, so as to bind the property. That the execution (having respect to the purpose of the delivery of it to Mallory, and the manner in which it was afterwards to be treated) was intended to bind the property of the debtor, and yet to be suspended as to the levy of it, until on a future event it should be trans*73ferred to the hands of Field, the other deputy ; and this latter purpose defeated the intention as to the lien ; for a delivery to an officer with instructions not to levy for a given time, or until a given event, could not immediately hind the debtor’s property. The suspension of the levy, during its continuance, cancelled the lien. Payne v. Drew, 4 East 523 ; Kellog v. Griffin, 17 Johns. Rep. 274.

*

See monographic *note*on "Executions” appended to Paine v. Tutwiler, 27 Gratt. 440.

’"'PER CURIAM.

The judgment of the circuit superiour court is to be affirmed.

BROOKE, J.,

dissented. He said — I cannot concur in the opinion, that May’s execution was delivered to the deputy Mallory “ to be executed,” according to the 13th section of the statute concerning executions. The words of the statute are, that “ no writ of fieri facias, or other writ of execution, shall bind the property of the goods against which such writ is sued forth, but from the time such writ shall be delivered to the sheriff, under sheriff, coroner or other officer, to be executedto be executed, I presume, in pursuance of law, not according to the directions of the creditor. The section is copied from the english statute 29 Car. 2, ch. 3, and any delay amounting to laches in the creditor loses the priority of the execution ; as in the case of Payne v. Drew, cited at the bar, where a sequestration out of chancery, having the force of a fieri facias, lost its priority by the delay to execute it, amounting to laches in the plaintiff. So, in the case of Kellog v. Griffin, where the plaintiff having a prior fieri facias, directed the sheriff to levy it, but to do nothing until ordered, unless crowded by younger executions, but by no means to let the execution lose its preference. There, the laches was not so great as in the case before us, in which the execution was put into the hands of the deputy sheriff, to be executed only in the contingency of the debtor bringing his property to the town of Petersburg, which was the precinct or bailiwick of that deputy, but if he should not bring his property thither, and should not pay or secure the debt, ihe execution was to be delivered at the next county court of Dinwiddle, to another deputy, Field, to be executed on property within his precinct. The proceeding upon Ihe execution after its delivery, was designedly suspended. Meanwhile, Scott the debtor mortgaged his property to secure a just debt, — under which deed the plaintiff fairly ^acquired the title ; the execution still remaining dormant in the hands of Mallory. I can see no difference between this case and the cases cited, unless a distinction is to be taken between a deed of trust, and a bona fide sale under it, which are recognized by law as one means of securing and satisfying a debt, and a fieri facias, which is another means of effecting the same object. Before the statute, the mischief was, that the creditor after taking his execution might permit it to lie in the office, and so be a secret lien on the debtor’s property. Now, it had as well be in the office, as in the hands of the sheriff, if he, by the direction of the creditor, is not to execute it but on some contingency that may never happen. To bind the property of the debtor, an execution must be delivered to the sheriff to be executed in pursuance of law, so that he is bound to proceed, and responsible for not proceeding. If it is delivered to him, to hold, and abide the directions of the creditor, other liens may intervene, which ought not to be affected by the creditor’s delay to execute his writ.