Bell v. King , 8 Port. 147 ( 1838 )

COLLIER, C. J.

— The only question brought to the view of the court in this case, Is this:

Can a sheriff who has returned a fieri facias, nulla bo-na, when a motiop is made against him, founded upon a suggestion (under the statute) that with due diligence, the amount thereof might have been collected of the defendants in execution, successfully resist the motion, by showing that he had older fieri facias’ in his hands, of an amount equal to the entire value of the defendants property, unless he also show that these executions, entitled to a prior lien, were levied on that property ?

The mandate of the fi. fa. directs the sheriff, that of the goods and chattels, lands and tenements of the defendant, he make the amount thereof, «fee. If the defendant have property within the county, it is the sheriff’s duty to levy upon it; unless it be exempted from seizure by the law—(Frost vs. Dougal, 1 Day’s Rep. 128.) The lien of an execution does not' depend upon contract, but is given by the law, and imparts to the elder the right of satisfaction, in preference to one that has subsequently gone into the sheriff’s hands. Yet this preference of an older over a younger execution creditor, does not excuse the sheriff from a levy of the latter, where the property is not needed to satisfy the former, as where the creditor waives his priority or gives day, which, in the case before us, might possibly be inferred. But without resorting to any such inference, we think it clear, that a return of nulla bona, cannot be justified by the proof of a prior lien, unless the executions creating it were actually levied. In the case of Champenor’s ads White, (1 Wend. R. 92,) the-proceeds of the property were actually appropriated to the payment of the oldest Ji.fa.- — a circumstance which very materially distinguishes that case from the present.

The defence set up, if allowable at all, must be upon the supposition that the sheriff may be proceeded against by the older execution creditors for a neglect to make the money upon the Ji. fa’s in their favor; and thus be charged to an extent greatly beyond the value of the property which was subject to levy. It cannot be endured, that a sheriff shall be allowed to excuse himself from one neglect of duty, by interposing another. In principle, this would be to off-set one wrong, by showing that the party had committed another. Besides, it does not appear that the plaintiff, Bell, did not dispose of the older executions, as he was instructed to do; and even if he did not perform his duty in regard to them, it is by no means certain that the plaintiffs in those executions will ever require him to make good to them the consequence of his neglect. So that if the defence interposed by the plaintiffs in error was permitted to avail, it would so happen that the defendant in error might lose his debt, though the defendant in execution had ample property liable to levy and sale. The judgment of the County court must be affirmed.