Samuel B. Love, Sheriff, Appellant, v. William Williams, Appellee, 4 Fla. 126

THOMPSON, Justice, delivered the opinion of the Court. At the Spring term, 1850, of the Circuit Court, sitting in Gadsden County, Williams, who was plaintiff in a judgment and execution against Robert L.

Harrison and others, obtained a rule against the appellant, to “ show cause why he should not pay over to the plaintiff one thousand and fifty dollars collected from the defendants.” The appellant in his answer to the rule says: He does not know whether any execution ever eame to his hands in the said case, but if it did come to his hands, it was destroyed by the fire which consumed the sheriff’s office on the 12th November, 1849. That the sum named in the rule was made by a seizure and sale of Harrison’s property on a fieri facias in favor of Richard H.

Wilson, executor, against said Harrison, which was delivered to him on the 27th November, 1849, and that he had paid to the attorney of said Wilson $1,000, and after deducting his costs and expense in making said sale, he had in his hands the sum of $15 98. Upon this answer, evidence was introduced, showing that the execution of Williams against Harrison and others, which was of the date of the 11th May, 1844, had been delivered to the Marshal of the Middle District on the said May 11th, 1844, and had been transferred and delivered to B. C.

West, late sheriff of the County of Gadsden, on the 1st of November, 1845, and was by the said West turned over to the appellant, together with a number of other writs, a day or two prior to the fire. Williams places his claim to this sum of money on the ground that his execution was first delivered to the sheriff and had priority, and that the money should have been paid to him, notwithstanding it was made by a seizure and sale of Harrison’s goods by virtue of the junior writ of fieri facias in favor of Wilson’s executor.

Two questions are presented for the decision of the Court upon the argument here: — First, as to the character and extent of the lien of an execution upon the goods of the debt- or ; and, secondly, whether the respondent, if he has sustained an injury, did in the Court below pursue the proper remedy in the assertion of his claim ? 1. As to the lien of the execution.

At common law, the fieri facias had relation to its teste, and bound the defendant’s goods from that time, which was always some day in the term at which the judgment was entered ; but this reía tion proving inconvenient and mischievous in practice, the goods continuing liable in the hands of those who had purchased bona fide and for a valuable consideration from the defendant, between the teste of the writ and the day of its actual issue, the statute 29th Car. II, c. 3, § 16, was intended to correct the mischief.

This statute, which is of force here in this particular, enacts that “ no writ of fieri facias, or other writ of execution, shall bind the property of the goods of the party against whom such writ of execution is sued forth, but from the time such writ shall be delivered to the sheriff,” &c. See Tidd’s Practice, 1,000. “ Neither before the statute nor since,” says Mr.

Tidd, is the property in the goods altered by the delivery of the writ to the sheriff; but it continues in the defendant till execution executed.” And this, no doubt, upon the principle that a lien does not constitute, per se, a right of property in the thing itself, but a right to levy upon and sell it for satisfaction of the debt. In Lowthal v.

Tompkins, 2 Equity Cases Abridged, 380, Lord Hardwicke explains what is meant by goods being bound from the delivery of the execution : that if defendant makes an assignment of his goods, unless in market overt, the sheriff may take them in execution, and this view is sustained in all the cases. We have no markets overt in this country, and therefore any sale or assignment of the defendant’s personal property, after the delivery of the fieri facias to the sheriff, is ineffectual as to the lien of the writ.

But the contest here is not between the purchaser of goods from the defendant and the plaintiff in the fieri facias, but it is between the plaintiff in one execution and the sheriff, in which the former claims that the money which the latter made on another writ shall be paid to him, because, as alleged, he holds the elder writ and his lien is prior in point of time. Is this position correct ?

Do the liens of different executions attach in the order of priority of the time of their respective delivery to the sheriff upon the property of the defendant in execution, or upon the proceeds of the sale of it in the sheriff’s hands, so as to authorize a rule upon the sheriff to pay the money over as the money of the plaintiff in the first writ delivered?

It is true that all the authorities lay down the proposition that, as between different plaintiffs, if two writs of execution are delivered to the sheriff on the same or different days, he ought to execute that first which was first delivered, unless it be fraudulent or dormant; but if he executes, that is, levies and sells, by virtue of the writ last delivered, the property of the goods is bound by the sale, and the party cannot seize them by virtue of the writ first delivered. Tidd’s Practice, 1000, and authorities cited in the margin. Bradley v. Wyndham, 1 Wilson’s Reports, 44. Hunt v.

Hooper, 12 Meeson & Welsby, 664. Thus, in Smallcombe v. Cross and the sheriff of London, 1 Lord Raymond, 252, the sheriff levied on the defendant’s goods under the writ last delivered and sold them to Smallcombe. By the direction of the-plaintiff in the elder writ he again levied on the same goods-under that writ and sold them to Cross. The first purchaser, though under the junior writ, brought trover for the-goods and recovered.

The Court, per Holt, Chief Justice,, resolved that the sheriff has not an election to execute that writ which he pleases, but should proceed upon the writ first delivered ; yet that if he do otherwise and execute the writ last delivered first, the property of the goods is bound by the sale, and the party cannot seize them by virtue of' his execution first delivered, but may have his remedy against the sheriff. The reason given is, “ that sales made by the sheriff ought not to be defeated; for if they are, no man will buy goods levied upon a writ of execution.” And in the subsequent case of Payne v.

Drewe, 4 East’s Reports, 523, 545, the case of Smallcombe v.

Cross and other precedent cases were commented upon and approved; and Lord Ellenborough, in delivering, the judgment of the Court, -lays; down the rule thus : “ that where there are several author- “ ities equally competent to bind the goods of a party when “ executed by the proper officer, that they shall be consid- “ ered as effectually and for all purposes bound by the au- “ thority which first actually attaches upon them in point “ of execution, and under which an execution shall have “ been first executed.” Upon the authority of these cases it is clear that the lien of Williams’ execution did not attach upon the property, so as to defeat the sale by the sheriff under the junior writ of Wilson’s executor, for both authorities were equally competent to bind the personal property of the defendant, Harrison, and the latter having first attached in point of execution, the property is to be considered bound by it to the exclusion of all others.

In Rankin v. Scott, 6 Peter’s Condensed Reports, 506, a distinction is well taken between the lien of a judgment on land and the lien of an execution upon personalty. In the first case the lien is by matter of record; in the other it is not, not even by the writ, except from the time of delivery to the sheriff.

The purchaser of personalty cannot suppose that the officer has committed any impropriety in the performance of his duty, and even if he desired to examine into the propriety of his action, he has not the means of doing so ; while, on the other hand, if land is offered for sale by the sheriff, the lien being by judgment, it is a matter of record, and the purchaser can, by examination of the records, satisfy himself whether there are any other and superior or prior liens upon the property. This case of Rankin v. Scott is cited approvingly by this Court, in the case of Moseley v. Doe ex dem.

Edwards, 2d Florida Reports, 438, 439. Has the plaintiff in the writ first delivered, any lien on the money in the hands of the sheriff, made by the seizure and sale under the second writ ? The case of Payne v. Drewe, before cited, as well as the cases of Rybot v. Peckham, 1 Term Reports, 731, n., and of Rowe v. Tapp, 9 Price R., 317, are conclusive that he has not. The last case is directly upon the point.

Two writs oí fieri facias had been delivered to the sheriff at different times, at the suit of different plaintiffs, against the same defendants ; being ruled to return the second writ, he returned that he had levied on certain goods and chattels of the defendant, which remained in his hands for want of buyers ; the plaintiff then sued out a venditioni exponas, to which the sheriff returned that he had sold the goods, and retained the proceeds of sale, to apply to the other writ of fieri facias, which had been first delivered him.

The Court, on motion, quashed the return, and made the order absolute upon the sheriff to pay over the money to the plaintiff in the second fieri facias.— The case of Saunders v. Bridges, 3d Barnewall & Alderson, 95, cited by the counsel for the respondent here, is not opposed to the case last cited. In Saunders v.

Bridges, which was an action for a false return, the sheriff had levied the elder writ and made the money; subsequently the defendant obtained an oi’der setting aside this writ, and directing the money to be returned to him ; the sheriff paid over the money to the defendant, and returned nulla bona to the junior writ — the Court held he should have retained it to satisfy the second writ; that as he did not ask the Court for directions, nor give notice to the plaintiff in the second writ of the service of the rule upon him, he had paid the money in his own wrong, and made himself liable.

It would seem, from Hutchinson v. Johnson, 1st Term Reports, 729, that, if the sheriff having two writs in his hands, should levy under the second, he may afterwards sell under the first, and thus escape liability; but it is equally clear from all the authorities, that, if he levies and sells by virtue of the writ last delivered, he must pay the money over to the plaintiff in that writ; and the plaintiff in the writ first delivered has his remedy only against the sheriff, for the breach of duty in not executing first that writ which was first delivered to him. 2.

As to the remedy pursued by the respondent in the Court below. The rule nisi obtained on the 21st May, 1850, from its structure, is based on the act of February 17th,

section 7, (Thompson’s Digest, 358,) which gives a

summary remedy by rule against the sheriff to pay over, with twenty per cent, damages, money which he has collected upon an execution, and has retained for the space of thirty days after its receipt; and the argument of respondent’s counsel in this Court is upon the superior right of the plaintiff in the elder writ, by virtue of his supposed prior lien upon the property levied on, or its proceeds when sold, to consider the money thus made by the sheriff as applicable to his execution.

As we have seen, he has no such right; but if the sheriff has been guilty of a breach of duty in not levying his writ first, his remedy is against the sheriff; and can the Courts proceed summarily by motion, or rule, to administer to his relief? We are not aware of any such authority, either by the common law, or by statute of this State, and none has been cited in the argument. The case of Willis ex v.

Shepard, 2d Florida Reports, 397, has been cited by the counsel for respondent; but although this Court does there suggest a form of proceeding by rule in cases of this sort, yet the authority, we think, is against the present case.

The Court suggests that where there are adverse claimants to money in the sheriff’s hands, “ the proper course is for each claimant to take a rule against the sheriff; the allowance of one will be the refusal of the other; by an order of consolidation, all can be tried together, and in case of appeal by any, the stay of the others may be had, as directed, until final decision.” Yet in that case, the rule which was entered, being by one execution creditor against the sheriff and the other execution creditors jointly,, presented the same state of case as several rules by each of the execution creditors against the sheriff would do, after an order of consolidation had passed.

The parties all appeared before the Court, and litigated with each other their respective claims, and the Court having decided upon the questions made, and ordered distribution of the funds, the dissatisfied party appealed tothisCourt. The judgment was reversed, the Court saying that there was “ no such proceeding at common law, or by statute, as a rule between two individuals to try the right of money in the hands of a third person, the sheriff,” and we think the judgment was right.

In like manner, we are compelled to say that we are not aware of any such proceeding at common law, or by the statute of this State, which authorizes a

summary proceeding by motion or rule against the sheriff for a false return, or for not levying an execution in his hands to be executed. A statute was passed in 1833, authorizing the plaintiff in execution, upon a return of nulla bona, to controvert the same, and make up an issue thereon, to be submitted to a jury in a

summary manner, and authorizing a judgment to be entered on the verdict of the jury, (Duval’s Digest, 9, § 8 ;) but this

section of the act was repealed by the act of February 15, 1834, (Duval’s Digest, 13, § 5.) The suggestion in Willis executor v. Shepard, as to the remedy by rules, probably was not well considered, as the attention of the Court was not drawn to the subject, as a point necessary to the decision of the cause. We are satisfied that the proper remedy, if the plaintiff in the elder fieri facias has been in fact injured by any malfeasance or nonfeasance of the sheriff, is that which was presented and urged in argument by the counsel for appellant. The plaintiff has a right to call upon the sheriff for a legal return upon the process at every term of the Court, by

section 8 of the act of March 15, 1844, (Thompson’s Digest, 355.) If the return is false, as where the sheriff returns nulla bona, when he might have made the money, or has given undue preference to a writ subsequently delivered, the plaintiff must resort to his action on the case, for a false return, or for not levying the writ. Tidd’s Practice, 1022. In such an action, the facts upon which the liability of the sheriff is claimed to be founded, as well as his defence, will, under the guidance and instruction of the Court, be passed upon by a jury.

This is his right, and he cannot be deprived of it, without his express consent. The conclusion at which we have arrived, renders it unnecessary that we should consider the other points made and discussed in the argument at the bar. The judgment of the Court below is reversed with costs.