Baldwin's Appeal

Mr. Justice Gordon

delivered the opinion of the court,

At common law a fieri facias had relation to its teste and bound the defendant’s goods from that time, so that if he sold them after-wards, they might still be taken in execution : Bob. Dig. 320. As this often worked great injustice to bona fide purchasers, the Act of Car. 2, ch. 3, provided, among other things, that a fieri facias, or other writ of execution, should bind the property or goods of the person against whom it issued, only from the time such writ should be delivered to the officer by whom it was to be executed, and he was required to endorse, upon the back thereof, the day of the month and year when he received the same: Id. 310. Our Act of June 16th 1836, is, in effect, a transcript of the above, and embraces the same intent, to wit, the limitation of the lien, of the writ of fieri facias, as it stood at common law, to the time of its receipt by the executive officer. The two statutes differ only in this, that, by the former, the day and year only, when the writ came to hand, were to be endorsed; thus leaving the lien to cover the whole of the day on which the writ' was received, whilst the latter requires the endorsement of the hour also, and, so, limits the lien to the fraction of a day. The intent of both acts is, however, the same; not to furnish data for distribution, hut to prevent injury to honest purchasers. As was said in Long’s Appeal, 11 Harris 297, the practice of paying writs of fieri facias out of the.proceeds of the defendant’s personal property, in the order in which they are' delivered to the sheriff, rests upon usage sanctioned by the act, and not on principle. It is, then, obvious that the act just recited can have no bearing upon the writ called “attachment-execution,” since it is not such an execution as does now, or ever did, hind the defendant’s goods from its teste, or even from the time it came into the sheriff’s hands, but only from the time of service upon the garnishee or levy upon the goods themselves. The execution of such a writ, from its very nature, never could work detriment to good faith purchasers, and therefore, from it they never needed protection. It follows that if we adopt the usage above mentioned, we must do so without the sanction of the act. This, however, will not do, for the statute, which creates this writ, interposes and directs us to look for rules and analogies in the laws governing foreign attachments. The process, to levy an execution upon stock, is declared to be in the nature of an attachment; and from and after the service of such writ, all stock belonging to the defendant, in the corporation upon which service shall be so made, and all debts and deposits of money, and all other effects belonging or due to the defendant, by the person or corporation upon which service shall be so made, shall remain attached in the hands of such corporation or person, in the manner heretofore practised and allowed in the case of foreign attachment.” Whilst, therefore, this process may be regarded as an execution, in that it is intended to carry into effect the final judgment of the court, and not merely to compel appearance, yet it is wanting in some of the important features of such a writ, and in this notably, that it is not in itself final, but requires execution for its enforcement. We think, therefore, that this process is nearest of kin to the foreign attachment, and that the rules governing that writ must also govern this one.

Having arrived at this conclusion, we do not hesitate to adopt the rule settled by Long’s Appeal, 11 Harris 297, and Yelverton v. Burton, 2 Casey 355, that is to say, the several writs’of attachment having gone into the sheriff’s hands, and having also been served, on the same day, no preference can be given to either, but distribution must be made to them pro rata.

The decree of the court below is reversed; the report of the auditor is reinstated, and distribution ordered accordingly. It is further ordered, that the costs be paid by the appellee.