
    Harding vs. Stevenson.
    Appeal from Baltimore county. court. This whs aft action on the case against a sheriff for a false return. The case was this: — At March term 1818, of Baltimore county court,, the plaintiff, Harding, recovered judgment against á certain Hugh Boyle, for the sum of $>¿3000, with, interest from the 2Sd of July i 816, and costs; which was affirmed at June term 18^§, in the court of appeals, with stay of execution until the 15th of December in samé year. On the 16th of December 1819, a writ of fieri fardas issued on this judgment, and on 20th of samé month was placed in the hands of the defendant, (now appellee,) then sheriff of Baltimore county. Boyle was ift possession arid proprietor of 367 hogsheads of riiolasses, which arrived in Baltimore, on the 16th of December 181-9 from Havannd, and Boyle arrived on the same day from the same place. On the 17th of December 1819, Boyle, by deed, conveyed all his interest in said 367 hogsheads of molasses, to a certain David Winchester, reciting ift that deed, that “whereas .there were shipped at Havannd, in the’ island of Cuba, by Messrs. Gray, Fernandis & Brother, of that pi rice, merchants, on hoard the ship Mohawk, now lying at the port of Baltimore, 367 hogsheads of molasses, consigned to the said Hugh Boyle; and’whereas tlie said Hugh Boyle advaftced, at the island of Cuba aforesaid, on account of the purchase of the said cargo of molasses, or for account of the said Gray, Fernandis and Brother, the sum of S7886’, to be reimbursed and paid to him out of the sales of the said molasses, over and above the regular and usual commission upon such sales.” The deed then,'in consideration of S7886, transfers- to Winchester the 367 hogsheads of molasses, ift trust, to sell the same, and out of the proceeds of the sale to retain his commissions, and the said sum of S7S86, with interest!, and the surplus, to pay over to Gray, Fernandis & Brother1, &c. The interest ..of Boyle in the molasses was truly stated in the deed, and the molasses was delivered in pursuance thereof. At the time of making the deed, Boyle contemplated being and becoming an insolvent debtor, and made the deed with the view and under, the expectation of being and becoming an insolvent debtor. The molasses did not sell for the amount of Boyle’s advances. On the 20th of December 1819, the molasses was shown to the defendant, who levied the aforesaid writ of fieri facias on 100 hogsheads thereof, but the same being claimed by Winchester under said deed,'the defendant made return of nulla bona on said writ to the court of appeals. Boyle, cm the 31st oí December 1819, applied for the benefit of the insolvent laws, and obtained a final release. The value of the whole quantity of molasses, free from charges, was g4000, and of the 100 hogsheads levied on, was §2000. A judgment pro forma was entered for the defendant, and the plaintiff prosecuted the present appeal.
    
      A transfer of property by a debfoivto a creditor, with a view, or under [he expectation of becoming an insolvent debtor, is made, void by the act of 3812, ch. 77, s* 1, only for the purpose of vesting the property in the trustee of such debtor fin* the benefit of his general creditors.
    Money, specific pieces of coin, which are tangible, may he taken* in execution, the actual possession and ownership being in the defendant: but money in the, hands of a sheriff cannot be taken by him under a fieri facias against the person who ,is entitled to receive it. Though in such case; if the sheriff brings the money into court, lie will be directed to pav it to the creditor, whose execution is in his hands against the property of him for whom it was levied.
    An execution cannot be levied on the lien a judgment creditor has upon the lands of Jus debtor. So, thoneh a fieri facias ■, from the time it is placed in the' hands of the she-., riff, binds the personal property of a debtor, yet an execution on a judgment against Ins creditor, cannot be levied upon the property so bound.
    Where property had been consigned to A, who had acquired a lien only as consignee and pawnee, an execution sued out against him, cannot be legally levied on such property.]
    A mere chose in action i-. not subject to execution.
    
      The cause was argued before Buchanan, Ch. J. Éabxe,’ Mabtin, and Stephen, I.
    
      B. Johnson and Glenn, for the Appellant,
    contended, 1. That the transfer from Boyle to Winchester was fraudu- . lent, and void in law, against the creditors of Boyle, and that the- whole of the molasses so transferred was liable to be taken under the fieri facias.
    
    2. That the return of nulla bona on the, fieri facias was á, false return as to the whole of said molasses, or as to the 100 hogsheads levied on.
    3. That Boyle had such an interest in the said property as was liable to execution.
    To show that Boyle’s interest was liable to execulion,' they cited 3 Coke, 12. Comb. 356. Turner vs. Fendall, 1 Cranch, 133, 134. Handy vs. Dobbins, 12 Johns. Rep. 220. That Boyle had a legal estate, being mortgagee in possession. That the deed was void under our insolvent laws, they referred to the acts of assembly of 1805, ch. 110, s. 9; 1807, ch. 55; and, 1812, ch. 77. Bowyer vs. Bampton, 2 Stra. 1155. Low vs. Waller, Doug. 726. Doe vs. Gooch, 3 Barnw. & Ald. 664. That a gift made to deceive one creditor was void as to all. Gooche’s case, 5 Coke, 60. Moor, 615. That the deed being void, the plaintiff’s execution was a lien, and the trustee took, subject to this lien. Taylor vs. Wheeler, 2 Vern. 564. Hinton vs. Hinton, 2 Ves. 633. Brown vs. Heathcote, 1 Atk. 162. Russell vs. Russell, 1 Brown’s Ch. Ca. 269. The plaintiff is like a creditor threatening to sue under the bankrupt law, who thereby acquires á fair and maintainable preference, but if the debtor voluntárily Conveys, it makes him bankrupt. Alerderson vs. Temple, 4 Burr. 2235. Hannan vs. Fishar, Cowp. 117. Thompson vs. Freeman, 1 T. R. 155.
    
    
      Wirt: (Attorney-General XJ. S.J find Taney, for the Appellee,
    contended, that Foyle’s interest in the molasses was-not a tangible interest, which could be seized under á fieri facias or attachment. That it'was strictly a chose-iri action. They referred to, M‘Combie vs. Davies, 7 East, 5. That if the property was liable to execution, then Boyle had an interest therein which he could transfer. They cited Kennedy vs. Boggs, 5 Harr. & Johns. 403:
    
   The opinion of the court was delivered by

Buchanan, Ch. J.

In seeking to sustain this suit, it has been contended by the counsel on the part of the plaintiff,' that, as Hugh Boyle, on the 17th of December, in the year 1817, when he executed the deed to David Winchester, intended to take the benefit of the in&'olvent laws of the state, and did, on the 31st of the same month, make’ application, and ultimately obtained á final félpase, the deed to Winchester, finder the operation of the first section bf the act of 1812, ch. 77, becfime null and Void, and the molasses, thereby intended to be transferred,' liable to' seizure and sale by the defendant, in virtue of the writ of fieri facias then in his hands, which had been before issued upon the judgment obtained by the plaintiff against Boyle: But they are met at the" threshold by the decision of this Court in Kennedy vs. Boggs, where ■ it was held, that a transfer of property by a debtor to a creditor, with a view, or under' the' expectation of bécoming an insolvent debtor,' is made void by that act only for the purpose of vesting the property in the'trustee of such debtor, for the benefit of his general creditors. And it is certainly in consonance with the policy and spirit of the law, that it should be so. If it were otherwise, the effect would be, to divest one creditor of the property, having éqfial equity, -and to cast it info the hands of another, who may first obtain judgment and. execution,1 which could not have been the intention of iba "legislature; for if the debt of one creditor is to be satisfied to the exclusion of all others, it cannot be very material to the rest, whether it be by means of an execution, or of an immediate transfer of the property by the debtor himself.

But if the deed to Winchester should be admitted to be null and void to all intents, and not to the end only, of vesting the property in the trustee of Boyle, it would not avail the plaintiff!

Money, specific pieces of coin, which are tangible, may be taken in execution, the actual possession and ownership being in the defendant; but money in the hands of a sheriff", cannot be taken by him, in virtue of a fieri facias on a judgment against the person who is entitled to receive it. Turner vs. Fendall, 1 Cranch, 134; because, though he has a right to the sum levied, and has his action against the sheriff’ if he fails to pay him the amount, yet he has not the legal ownership of the specific money received by the sheriff",until it is actually paid over to him. Though in such case, if the sheriff brings the money into court, he will be directed to pay it to the creditor, whose execution is in his hands against the property of him for whom it was levied, A mere chose in action is not subject to execution, be who has the right, not being in possession, which he ,can only obtain by legal judgment and execution,

It was well observed at bar, that an execution cannot be levied on the lien a judgment creditor lias upon the lands of liis debtor. So, though a fieri facias, from the time it is placed in tiie hands of the officer, binds the personal property of a debtor, yet an execution on a judgment against his creditor, cannot be levied upon the property so bound.

The land in the former case cannot be taken in execution and sold to satisfy a judgment against him who has the lien, because the legal title is not in him; nor the personal property in the latter, because the legal title is not in him by whose execution it is bound.

In this case it appears, that the molasses in question was shipped by Messrs. Cray, Fernandis Brothers, from Havanna to Baltimore, and consigned to Hugh Boyle, who had advanced for the purchase of it, on their account, 87886, to be reimbursed, and paid to him out of the salea thereof, over and above the regular and usual commission upon such, sales; whereby he.;acquired-a lien, in the twc-r, fold capacity of consignee and pawnee, to the. amount of his commission and the sum, advanced-, without having a. legal, title to the molasses itself, but only a lien, which he could not transfer by a pledge of the molasses as his own, and was. not subject to execution The defendant, there--’ fore, had no right, and could not legally have levied on thq molasses the fieri facias sued out by the plaintiff upon his- judgment against Boyle, if the deed, to Winchester] had not been made, ' ' .

JUDGMENT ATTIRMED.  