My inquiries in this case have led me to the belief that the plaintiff is entitled by law to the money in the hands of the sheriff, by virtue of the prior teste of his execution. I do not mean to give an opinion on any other facts than those stated on the record; nor particularly on the supposition that the money had been raised by a sale under the second execution.

The writ of fi. fa. in this State binds the defendant's goods from theteste of the writ, after which time any sale of them is void; because *Page 170 from thence the goods are attendant to answer the execution. This is an old rule of the common law, founded on the reason that, as executions could issue only against goods which might if not so bound be sold by the party, he would thus be able to evade what is termed the life of the law, its effect and fruit. The common law, also, presumed that the sheriff would execute such writs immediately and thereby give such publicity to the transaction as would prevent imposition upon purchasers. The judgment did not bind, because, that being in force for a year, it would have been vexatious to restrain the debtor from his ordinary private dealings for so long a period.

When the term lien is applied to other subjects in the law its import is familiarly understood to be a binding or attachment of the thing spoken of for the benefit of him who is entitled thereto. The lien of a vendor on goods not yet delivered, of a carrier, a factor, or pawnbroker, entitles them, respectively, to a priority over others whose claims are posterior, upon the simple rule of justice that the first lien gives a right to the first satisfaction.

(311) So far from there being any reason wherefore this rule should not be applied and enforced to a certain extent between the conflicting claims of creditors under different executions, it seems to me demonstrable, from a slight view of the alteration of the law by the statute of frauds, that it is so applied and always has been.

When that statute was passed the priority arising from the teste was understood to subsist in theory in full vigor; every book that treated on executions laid it down, as settled law, and the statute itself had no further view than to restore its practical utility by the substitution of alien better fitted by its notoriety to prevent fraud and injustice to third persons.

It was not that the rule of the common law was defective in fixing on theteste of an execution to bind the defendant's goods, because in reality the law supposed the execution to be delivered to the sheriff immediately from the teste; and if, in point of fact, that had been done, the purposes of the statute would have been accomplished and its enactment rendered useless. Thus the award of an execution and the teste of an execution are convertible terms; but the former is chiefly used in cases before the statute. A bona fide sale of chattels is good after judgment, but not after execution awarded. 8th Co., 170. "By the award of execution the goods are bound, so that they may be taken in execution, into whose hands so ever they come." Cro. Eliz., 174.

But the real mischief intended to be remedied was that creditors took out executions, one under the other, without delivering them to *Page 171 the sheriff, whence the retrospect of the teste made sales uncertain, each plaintiff being entitled according to his relative priority; and it was utterly impossible for purchasers and strangers to tell without an inspection of the record, a process neither cheap nor easy, to what extent the goods were bound.

So far as other persons were concerned, who might have a title to the goods between the teste and delivery, the statute designed to restore the old law; but as to the party himself, his executors (312) and administrators, the goods, since the statute as before, are bound from the teste. 2 Show, 485.

If this position be correct I would infer from it this corrollary, that the cases since the statute of frauds, showing the force and extent of thelien created by the delivery of the writ of fi. fa., will go very far towards explaining and proving the extent and operation of the lien arising from the teste before the statute. A more direct mode of showing the question would be to adduce cases which occurred before the statute, but none such directly in point are to be found. There are, however, dicta and decisions of modern judges, relative to the common law on this point which, if correctly reported, are entitled to much consideration. Lord Mansfield decided that, though the sheriff had seized under one writ first, he was bound to sell under another delivered afterwards, if it had a prior teste. Cited in 4 East, 534, in notis. To the same effect is the opinion of the late Chief Baron MacDonald, who, having presided many years in the Court of Exchequer, may be supposed, was well instructed on the subject. His words are, "I take it, before the statute of frauds a writ of execution of a prior teste would have been preferred to a writ of execution of a subsequent teste, although the latter was first delivered to the sheriff and was begun to be executed, provided that the writ of prior teste came to the sheriff's hands before sale." Cited in 16 East, 279, in notis. If these opinions of these eminent men are to be relied on as authentic, they go to the whole length of the present controversy. They will be found, too, in accordance with the decisions since the statute.

Hutchinson v. Johnson, 1 Term, 729, shows that where two writs of fi. fa. against the same defendant are delivered to the sheriff on different days, and no sale is actually made of the defendant's goods, the first execution shall have the priority, even though the (313) seizure was first made under the subsequent execution. I would remark on this case that the statute priority by delivery is preserved, notwithstanding a seizure under a second delivery. Can any reason be assigned why the common-law priority shall not be maintained, *Page 172 notwithstanding a seizure under a subsequent teste, provided the first execution reaches the sheriff before the last is actually executed? If there cannot, then the case before us is decided by this authority. The case of Smallcombe v. Buckingham was a sale by the sheriff under a second writ of fi. fa., the former fi. fa., though first delivered to the sheriff, not having been then executed. According to the report of it by Comyns, the amount of the judgment was that, at common law, if there were two writs of fi. fa., the one bearing teste on such a day and the other on the next day, and the last writ was first executed, such execution should not be avoided, and the plaintiff in the first execution must seek his remedy against the sheriff; for the sheriff ought to make execution at his peril, and if there was no default in him he shall be excused; as, if he who took the first writ out conceals it in his pocket, the sheriff may rightly make execution on another writ which bears the lastteste but comes first to his hands. The law laid down in the case affirms every principle on which the plaintiff relies in the case before us, though it goes further and validates a sale made under the second execution, a question with which we have now no concern. Rybot v. Peckham, cited in Term, 729, is decided on the same principle, and while it admits the validity of a sale under the second execution, it shows at the same time that the sheriff makes himself liable to the plaintiff in the first, which could not be but for the priority of the latter. The courts have evidently gone far to support sales actually made under execution; and it is probably right, and according to the general policy of the laws, that innocent (314) vendees should not be disturbed by dormant liens, more especially as the plaintiff may obtain satisfaction from the sheriff; but, though it may be execution executed may destroy the lien of the first, though it may be waived or lost by laches or fraud or overreached by relation of a bankruptcy or extent, yet nothing of the kind appears in this case. I am, therefore, of opinion that judgment shall be entered for the plaintiff.

It is submitted to this Court to direct to the discharge of which execution the money arising from the sale, and now in the hands of the coroner, shall be paid.

Executions at common law had relations to their teste, and from that time so bound the property of goods and chattels as against the defendants and all claiming under them, though for a valuable consideration, that they were subject to be taken in execution. 8 Co., 171; Cro. Elizabeth, 174, 440. But it does not so vest the property in the goods as to defeat a sale made of the same goods under another execution. *Page 173 1 Lord Raymond, 252; 1 Salk., 320; 1 Com., 35. For otherwise, saysLord Holt, no one would purchase at an execution sale. 1 Ld. Raym., 252. Whether such sales were held good at common law for the reasons given by Lord Holt, or whether by the Statute of frauds, as seems to be Ashurst's opinion in Hutchinson v. Johnson,1 Term, 731, is not material in the consideration of the present question. It may be taken for granted that such is the law, and that the injured plaintiff, whose execution had priority and which was postponed by such sale, had a remedy against the sheriff. See Rybot v. Peckham, 1 Term, 731, note. It has been said that because vendees under junior executions were protected, that was proof that executions of the first teste did not completely bind the property in the hands of the defendant. (315) If there had been no other remedy for the plaintiff in the first execution it is more than likely that the lien created by his execution would have been held valid. But it was thought more just and equitable to throw the burden on the sheriff who had done the mischief and make him liable to the creditor he had injured, rather than the innocent vendee under the younger execution, who was in no fault.

But the reason why such sales are held good does not apply to cases where goods have been levied upon but not sold, and perhaps would not apply to cases where sales had taken place and the money was still in the hands of the sheriff; because, although a sale had taken place, and the vendee were not to be disturbed, the money when not paid over might be applied to the discharge of the execution which had the prior right. But this question is not now to be decided, because in the case before us there had been no sale, but only a levy under the execution, which issued from the county court before the execution which issued from the Superior Court came into the hands of the coroner.

In England, by the Stat., 29 Car. II., ch. 3, sec. 16, executions bound the property of goods and chattels only from the time that such writs were delivered to the sheriff to be executed, so that the lien which executions had at common law from their teste upon goods and chattels commenced under that statute from their delivery to the sheriff. And it seems to me that the same law applied at common law, to executions bearing different testes, and that before the statute the delivery to the sheriff did not alter the lien created by the teste any more than since the statute the test will affect the lien created by the delivery to the sheriff.

Supposing, then, the same rule applicable to executions bearing (316) different testes in this State that applies to different deliveries. *Page 174 of executions under the statute in England, we have authority for saying, from Hutchinson v. Johnson, 1 Term, that the execution first delivered to the sheriff shall be first satisfied, although the property might be first levied upon by an execution subsequently delivered; it follows that, as the statute is not in force in this State, an execution bearing the first teste ought to be satisfied before one of a younger teste first delivered and levied upon property, but not sold until the one of the first teste comes to the sheriff's hands; for if the property is bound from the teste, it cannot be the more bound from delivery, and the delivery operates nothing. It is true, Lord Holt says in Smallcomb v. Buckingham, 1 Salk., 320, that at common law, if two executions bearing equal teste come to the hands of the sheriff, he is bound to execute that one first that is first delivered. This was not the question before the Court. The question was whether goods sold under an execution could be again sold under another execution which had been first delivered to the sheriff. That dictum of Lord Holt's is differently reported by different reporters. In 1 Ld. Raym., 252, he is made to say "that if a fi. fa. had been sued out the first day of the term, and another fi. fa. afterwards, and the last had been first executed, the other had no remedy but against the sheriff." Comyn, in his 1st vol. 35, reports the dictum thus, "If at common law there are two writs of fierifacias, the one bearing teste on such a day, and the other on the next day, and the last writ was first executed, such execution should not be avoided, and the party had no remedy but against the sheriff." In this report the preference is given on account of the first teste, and nothing is said about a delivery to the sheriff.

But on the point of law involved in this dictum of Lord Holt, so differently reported, we have, by way of explanation, the dictum of another judge, for I admit that it was not the question then (317) pending for decision before the Court. In King v. Wells, decided in the Exchequer (16 East, 278, note), Baron M'Donald says, "Before the statute of frauds, the subsequent writ of execution of a prior teste would have been preferred to another subject's writ of a subsequent teste although the latter was first delivered to the sheriff and was begun to be executed, provided the writ of prior teste came to the hands of the sheriff before a sale." This position is laid down byM'Donald, in the decision of a case of comparatively recent date, with all the authorities on the subject before him. His meaning on the point cannot be misconceived or mistaken, and it is in words decisive of the present question.

I cannot see the effect that the case of bankruptcy is intended to *Page 175 produce. I am not aware of any case where the assignees of a bankrupt have been adjudged to be entitled to property taken under an execution before an act of bankruptcy committed. If an execution issues into the hands of a sheriff, but is not levied upon property in the hands of the defendant, and the defendant in the meantime commits an act of bankruptcy, I admit that the lien created by the issuing of the execution is lost, and the assignees of the bankrupt are entitled, because State. 21st Jac. I., ch. 19, secs. 9, 11, expressly declares "that the property in the bankrupt's possession at the time of becoming a bankrupt shall belong to the assignees of his commissioners, whereof there is no extent or execution served or executed before such time as he shall become bankrupt." 1 Burr., 20. So that the lien created by issuing the execution is expressly destroyed by that statute; but if the property had been seized before the commission of the act of bankruptcy, the creditor in the execution would have the preference.

But laying aside authorities on this subject as contradictory and unsatisfactory, can there by any doubt as to the policy and justice of the case? If an execution of prior teste is held up by the party, or not issued, which is the same thing, and one of posterior (318)teste issues and is executed, there is no injustice in saying that the latter shall have the preference, vigilantibus et nondormientibus leges subveniunt. But when an execution of younger date happens by mere accident to reach the hands of the sheriff before one of an elder teste and is not executed before the other is received by the sheriff, I can see no injustice of inconvenience in giving a preference to the execution bearing the first or eldest tested, qui prior est temporepotior est jure. To adopt a contrary course would be going further, as it seems to me, than protecting those who are laudably vigilant, and would open a door to fraud. The law had better designate the rule by which justice shall be administered, than leave it to the physical ability of creditors or, in other words, give a preference to that execution that the most dispatch is used in first getting into the hands of the sheriff.

For these reasons I think the money in the hands of the coroner arising from the sale of the land should be paid to the plaintiff in the execution which issued from the Superior Court, bearing teste prior to the one under which the property was levied upon that issued from the county court.