delivered the opinion of the court.

This was a motion in the Circuit Court of Holmes county, by a constable who had collected money on certain executions, in favor of the defendant in error, asking instructions as to the appropriation of said money.

The facts are these: Edrington, in the year 1843, recovered judgments before a justice of the peace of Holmes county, against one Covington, which were never enrolled. Sometime prior to the 10th of December, 1853, executions issued on these judgments were levied by the constable on two bales of cotton, the property of the debtor, which were sold on the day last above named.

Botters & Co., in 1847 and in 1850, recovered judgment before a justice of the peace against Covington, and had the same duly enrolled on the day of the constable’s sale; but before the same was made, Botters & Co., notifying the constable of this fact, and claiming the proceeds of the sale, the constable submitted the matter to the decision of the court, when judgment was rendered in favor of Edrington.

This proceeding is based upon the ninth section of the statute of 1844, (Hutch. Code, 892,) regulating judgment liens. The language of the section is as follows: “After a sale of any property by the sheriff or coroner on execution, before the money is paid over by him, he shall examine the ‘•judgment roll,’ to ascertain if there be any elder judgment decree, or forthcoming bond forfeited therein enrolled against the defendant in said execution, having priority of lien,” &c. At the date of the levy by the constable, the judgments of neither party operated as liens upon the defendants’ property; and it was then a race of diligence between the parties. The one who could by his superior diligence have his execution levied, would be entitled to be first satisfied, for the obvious reason that he was not then interfering with a prior lien, *583or prior right of the other. The levy itself created not only a lien upon the property, but a special property in the officer; and this lien could only be defeated by another lien, which was then superior to the one created by the levy. When, therefore, the statute declares that the money shall be applied to the judgment having priority of lien, it means the judgment having such priority at the date of the seizure of the property by the officer. Neither judgment ait that time operating as a lien upon the property, the rights of the parties must be determined by the rule of the common law, — or if according to any statute, it must be according to that which makes the delivery of the execution to the officer, a lien upon the debtor’s estate.

Judgment affirmed.