Lexington union. (Lexington, Miss.) 1838-18??, 1839-12-21

piled to the payment Of the Judgment OF
The Bank, and this is the error comPia'heu
of
BY the common law, Judgment cred
itor acquired lien upon the goods OF me
defendant from the teste OF the witt OF
6rci facias. The act Of the 29th, Charles
I'd, gives the lien from the time OF the
delivery Of the writ to the Sheriff. il has
always been held, however, in England
that If two wrils are delivered, and the
Sheriff shall execute the one bearing taste
the last day, or the one last delivered such
execution shall not be avoided, but The
plaintiff improperly postponed, shall have
his remedy against the Sheriff only, whoi
bound to do duty at his peril. The prop
crty in the goods is bound by the sale, and
cannot be seized by the elder execution.
The reason is. that sales made by the
Sheriff, ought not to be defeated, for II they
are, no man will bay goods le'ied upon
writ ofexccuiior. Such was the language
of Lord Holl, in the case Of Smallcomb
VS.. Cross ~ Buckingham, So, Raym,
252. The language Of the statute 29ih
Charles, is that the goods Of the defendant
shall be 4" bound from the delivery OF the
writ to The Sheriff" In the case of Low
land VS.. Tonkins, . Eg. cas-. abr. 38l,
Lord Hardwicke has given the same CON
struction to these words of the statute, that
Lord Holt has in the case OF Smallcomb VS..
Buckingham, just noticed. lie says that
neither at common law nor since the stat
ute is the property of the goods altered.
This doctrine is sanctioned by the Court
Of The Kings Bench, in the case of Payne
vs.. Drcwe Adj, East $50, in which 1t is
declared to be a we'll settled principle, that
sale by a sheriff under a second cXecu-
ton, when he had former one IN his
hands is valid, and vests the property in
the purchaser. That though the writ is
binding as against the defendant from de-
livery, yet it cannot be regarded as salt
executed by its own proper force and le-
gal affect for all purposes. That whilst
it is the duty of the Sheriff as between
himself and the several plaintiffs, to sell
under the writ first delivered, though he
may have seized under the last, yet his
sale under the junior writ is good. The
Court Of Appeals of Kentucky, have es-
tnblisheG the same rule in the case Of
/ Tabbs vs.. Harris 4th, Bib 80, in the
construction Of a statute of that State,
similar TO the act of Charles. In that
case, the money in the hands of the sheriff
was levied upon Tabh's execution, though
it was delivered after Harris; yet the
court ordered it to be applied TO Tabb's
execution. The act Of this State is
exactly like the statute of Charles, and
is therefore subject to the same construc'
ton. 1t is, therefore beyond controversy,
that the lien in favor of judgment creditors,
either at common law, or since our act OF
1929. does not blnd against other judy
ment creditors, but may be defeated OF
loose its priority by sale under junior ex'
ecution. But the act of 1924, binds the
property Of the defendant from the time Of
entering the Judgment, and it is urged by
the counsel for the appellees, that the an
alogy of the decision in relation TO the En-
glish statute, does not apply to a lien by
virtue of Judgment. That in conse
quence, sale under the junior lndgmen
is void as against an elder one, and tina
the property is still subject to be selzet
in satisfaction to the prior Judgment b
this, however, as it may, it is very evident
, that the lien created by this statute Is, il
one respect, similar to that given by thu
act Of 1922, it may loose lis priority BY
the act of the creditor himself. The liel
after all, is but security. and whethe
that which is created by the act of 1924
binds all the world or not, it is still as
mere security to be pursued with diligenc
aud in good faith. When, therefore, tn
law gives to prior judgment, right t
a prior satisfaction, it intends that ,hi
favor shall be pursued with as little della
}, or injury to other creditors as possible
1t may lie lost by laches. Has the Ban
: pursued its remedy in this case, with tn
; diligence thus required by law and soun
: policy? The letter Of the attorney to III
:, sheriff, which was authorised by resoIt
ton Of the directory Of the Bank was a
!, instruction TO the sheriff to stay the exc
q cution, if not for an indefinite period, {
O any rate for six months. He is directe
u to return the writ then in his hands to tn
e succeeding court, and afterwards 10 tax
}, out new one, which might be suspende
u in like manner until the next court afte
s. wards, NTH the same consent This VIZ