
    *Sandidge’s Ex’r v. Graves’ Ex’r. Thompson v. Graves’ Ex’r.
    January Term, 1855,
    Richmond.
    Absent, Kiekd, P. (He decided the case below.)
    1. Foreign Attachment — Assignee of Legacy — Priority. —A creditor, at whose suit process of foreign attachment against an absent debtor is served on one of two executors, is entitled to priority of satisfaction, out of a legacy to the absent debtor, over an assignee of the legacy, who claims under an assignment dated the day after the service of the attachment on the executor.
    2. Assignments — Legacies — When Take Effect — Attaching Creditors — Delivery.-—An assignment of a legacy takes effect from its dale, and the as-signee is entitled to priority of satisfaction, as against creditors who have attached the legacy in the hands of the executors subsequent to the date of the assignment, although it is not shown that the assignment had been delivered to .the as-signee prior to the service of the process of .foreign attachment.
    3.Foreign Attachment — Legacy—Lien.—-Service of process of foreign attachment, on an executor before qualification, creates a lien on a legacy to an absent debtor, in favor of the attaching creditor.
    Lucy Quarles, by her last will, appointed Thomas Johnson and John Metcalfe her executors, and among other legaciés bequeathed to her nephew, John Poindexter, the sum of one thousand dollars. John Poindexter had many years before left the oountj’ of Louisa, in Virginia, where he had formerly resided, and had removed to the State of Kentucky.
    At the time of Mrs. Quarles’ death, in tie year 1841, the legatee, John Poindexter, was indebted to James S. Sandidge’s estate, and to one Charles Thompson, who proceeded severally and separately in equity in the Circuit Superior Court of Law and Chancery for the county of Louisa, by process of foreign attachment, to attach the legacy of Poindexter in the hands of Mrs. Quarles’ executors, to subject it to the payment of their separate claims. A subpoena against John Poindexter, *and Thomas Johnson and John Metcalfe, executors, with the usual restraining order endorsed thereon, sued out by Sandidge’s executor, was executed on Johnson, one of the executors, on the 13th September, 1841, and on Metcalfe, the other executor, on the 29th October, 1841. Johnson and Metcalfe did not qualify as executors on the estate until the 25th October, 1841.
    A subpoena, with the usual restraining order endorsed thereon, sued out by Charles Thompson on the 28th September,. 1841, was returned executed on Johnson, on the 13th October 1841, and an alias was executed oil Metcalfe on the 28th October, 1841. After the bills were filed in those causes, and before they were matured for hearing, John Graves filed his bill in the same court, making the parties to the other two causes parties defendant, and setting forth, that John Poindexter, was indebted to him in a large sum at the time of .his removal from Virginia, as evidenced by a deed of trust, exhibited with the bill, conveying certain property for his security; that Poindexter was still indebted to him, and for the payment of the said debt had made an assignment to him of the legacy in controversy. The assignment exhibited with the bill was dated “Christian county, Kentucky, Sept. 14th, 1841,” and was signed by John Poindexter.
    The assignment was proved to be in the hand-writing of Poindexter, but there was no proof of its date, or of the time of its receipt by Graves.
    The three causes were regularly matured for-hearing, and in September, 1845, there was a decree, that an account be taken of the amount of the debts due from Poindex-ter to Graves, to Sandidge’s executor, and to Thompson,'and also the amount of funds in the hands of Metcalfe, Mrs. Quarles’ executor, applicable to the payment of the legacy-< to ‘ Poindexter, &c. At the June term 1846, these causes came on to be again heard, upon the papers formerly read, and upon a statement received by consent as the answer of the executor Metcalfe, shewing how much was in his hands of the assets *of Mrs. Quarles’ estate applicable to the payment of Poindex-ter’s legacy, and there was a final decree, setting aside the order for an account, theretofore entered in the causes, and directing the payment of the legacy, by Mrs. Quarles’ executor, to Graves’ executor, and dismissing the bills in the other two suits, with an/'order that the respective parties in the three suits,, except Metcalfe, pay their own costs.
    Prom thi:s decree Sandidge’s executor and Charles Thompson appealed to this court.
    Lyons, for the appellants :
    The assignment was of no effect to pass the interest of the legatee, until it came to the hands of the assignee. Until then it was revocable, and entirely within the power of the assignor. It could not have been delivered at its date, because the assignor was in Kentucky, and the assignee in Virginia- As against Sandidge’s executor, it was of no avail, because it is even dated subsequent to the service of his attachment. Erskine & Eichelberger v. Staley et als. 12 Leigh, 406; Farmers Bank v. Day et als. 6 Grat. 360.
    The trust subject conveyed to secure the debt to Graves, should first have been accounted for, before he could be allowed to claim part of this fund. When a creditor has two securities, he must first exhaust the security upon which he alone has a lien, and he must show how he has disposed of it.
    There is no proof when Graves got possession of this assignment, whether before or after the service of Thompson’s attachment.
    Minor, for the appellee:
    The restraining orders in these cases were irregular, because 'they were made by the counsel, and not by the clerk.
    ' Opinion of Judge Tucker in Hadfield v. Jamieson, 2 Munford, 56; Erskine & Eichelberger v. Staley et als., 12 Leigh, 406.
    The assignment took effect from its date; The effect *of delivery to the assignee is merely to cut off revocation. If not revoked, it is operative from its date. Parsons on Contracts, 403; Story’s Eq. 4 1,044; 2 White & Tudor, pt. 2; Hare & Wallace’s Leading Cases in Equity, 208; 4 Hen. & Munf. 259, Rosewell’s ex’or v. Barrett & Co.
    After the acceptance of the assignment by the assignee, it takes effect from the time it was intended to operate by the assignor. Wilson v. Davidson, 5 Munf. 178; Tucker v. Daly’s assignee, 7 Grat. 330.
    The property must of necessity pass out of the grantor at the time of the execution of the instrument. It is the exercise of his will at that time, which changes the property.
    At the time of the service of the process, Johnson had not qualified as executor, and was not even the acting executor, and therefore the attachment did not bind the legacj', which was not in his hands. The Code specifies what an executor may do before qualification.
    Before qualification, it must be shown that the executor acted as such, or has funds in his hands. 1 Robinson’s Practice, (new edition,) 501, 590; 1 Lomax on executors, 82-84.
    Graves was not bound to account for the disposition of the trust fund, so long as his debt remained unsatisfied. A cestui que trust may neglect altogether to enforce a security, and that course would not deprive him of the right to proceed against other property of the debtor. If the cestui que trust released his security, he therebjr abandoned it to the other creditors, who should have proceeded against it.
    Lyons, in reply:
    The creditors’ rights might be altogether defeated, unless the process could be served on the executor before qualification. An executor, by refusing to qualify, might enable the debtor to eloign the property from his creditors. This process of foreign attachment is a proceeding in rem, and can only be served upon the person *having the right to the thing. Here the person upon whom the process was served, afterwards qualified as executor.
    In reference to the irregularity of the restraining order, being signed by the counsel, instead of by the clerk, it has been decided by the Court of Appeals, that the practice has been too long settled to be disturbed. Wilson v. Davisson, 5 Munf. 178.
    
      
      See foot-note to Farmers’ Bank v. Day, 6 Gratt. 360, and monographic note on "Attachments" appended to Lancaster v. Wilson, 37 Gratt. 624.
    
    
      
      
        See foot-note to Anderson v. De Soer, 6 Gratt. 363, and monographic note on “Assignments” appended to Ragsdale v. Hagy, 9 Gratt. 409.
      Marshaling Assets — Release of Security by Negligence. — In the article on Marshaling Assets, 19 Am. & Eng.Enc. Law (2d Ed.) 1268, itissaid: “Thedegree of negligence necessary to charge a senior creditor whose security has been released by his negligence is not very clearly brought forth by the decisions. It seems however, that his act must have been wanton, or his conduct such as can be construed to be fraudulent. He must have been a willful party to the loss of the fund.” In support of this statement they cite Ross v. Duggan, 5 Colo. 85 ; Sandidge v. Graves, 1 Pat. & II. 101. See monographic note on “Marshaling Assets” appended to Carrington v. Didier, 8 Gratt. 260.
    
   THOMPSON, J.,

delivered the opinion of the court.

In the first mentioned appeal, of San-didge’s ex’or v. Graves, &c. — the court is of opinion that the attaching creditor, by the service of his subpoena, acquired priority over the claim of the assignee Graves, the attachment having been served on Johnson, one of the executors of Mrs. Quarles, on the 13th, one day before the execution of the assignment, which bears date on the 14th September, 1841. See Erskine & Eichelberger v. Staley et als. 12 Leigh, 406; Farmers Bank v. Day, 6 Grat. 360. And that the service of the process upon Johnson only, and before his and Met-calfe’s qualification as executors, was as operative and effectual in creating this prior and superior lien, as if both had qualified and both had been served with the process. The court is therefore of opinion, that the Circuit Court erred in setting aside the order of account it had made to ascertain the justice and amount of the attaching- creditor’s debt, and dismissing his bill. Instead of dismissing the bill, the court should have decreed in favor of the plaintiff for his debt, interest, and costs, against the absent defendant, if satisfied of its justice by the report of a commissioner, or by the proofs in the cause, if deemed so satisfactory as to supersede the necessity of an account and report, upon the terms of giving bond and security required in cases of foreign attachments in chancery, and should have decreed costs to Metcalfe, the stakeholder. And should, in the case of Graves’ ex’or v. Thompson, &c., heard together with the two attachment cases of the appellants, *Sandidge’s executor and Thompson, have dismissed the bill of the plaintiff as to San-didge’s executor, and decreed costs in his favor.

In the case of Thompson v. Graves, the court is of opinion upon the authority of “Anderson et ais. v. De Soer, and Same v. Gallego’s adm’r, 6 Grat. 370, that as the assignment bears date the 14th September, 1841, and the attachment was not served on Johnson until the 13th, and on Metcalfe until the 29th October thereafter, the assignment overreaches the attachment, and is entitled to priority of satisfaction, there being, in the opinion of the court, from aught disclosed by the record, no reason to doubt that the assignment was perfectly fair and bona fide, and bears its true date, and whether made in pursuance of a pre-contract or understanding, or upon the sole suggestion of the assignor at the time of its execution, might have been received and accepted before the service of the attachment, if proof of such receipt and acceptance before were requisite. Not only was such receipt and acceptance possible, but probable, and certainly as fairly to be inferred from the facts of the case as the contrary. But according to the case from 6 Grat. last cited, the genuineness of the receipt being established', as in this case, by proof of signatures, and nothing appearing to repel the prima facie presumption that it bears its proper date, proof of its delivery, or receipt and acceptance before service of the attachment, is not necessary to perfect it, as an equitable assignment, and to give it priority over the attachment; for in the case last cited, the bill drawn upon the legacy, which was nothing more than, and was treated by the court as, an equitable assignment, (as is the one we are considering,) bore date only four days before the service of the attachment, was dated at Malaga in Spain, and consequently, from the date and place of date, there was physical impossibility that it could have been received and accepted in the space of four days, and before the service of the attachment.

The court is moreover of opinion, that there is no ^foundation for the pretension for holding Graves to account, or charging him with any thing, or for postponing or delaying him in any way, in the legal assertion of the right acquired by his assignment, in consequence of the creation of the trust deed to Chandler by Poindexter, for his benefit, on the 10th December, 1823, upon the ground assumed in the last assignment of errors, or upon the principle of marshalling securities. It cannot be pretended that he received satisfaction, and certainly, by consenting to the removal of the property covered by the deed, if he did consent, or by mere laches, forbearance or neglect, to enforce his lien, without any fraudulent combination with the debtor to defeat his creditors, he neither rendered himself liable to the creditors at large for any thing, nor deprived himself of the same right that appertains to them, to run th.e race of diligence, and take of his debtor other and fresh securities. Without satisfaction, an express and formal release of the trust deed, under hand and seal, could not have impaired the validity of the debt secured, nor imposed any liability on him to the creditors at large, much less could a mere forbearance or permission to remove, or laches, or neglect in enforcing his lien, have conferred any such rights on others, or imposed any such liabilities bn him, as is contended for. The doctrine of. mar-shalling securities can have no application to this case, if for no other, for the very conclusive reason, that it is very manifest that the trust deed is no longer a substantial, available security, but merely nominal and valueless, the assignment being in fact the only security, and a very inadequate one, the appellee has for his debt.

Wherefore, the court decrees and orders, that so much of the decree of the 11th April, 1846, in the three causes, as dismisses the bill of Sandidge’s executor against the absent defendant and Quarles’ executor, is to be reversed, with costs of appeal against Graves’ executor, the plaintiff in the first of the three suits only, and the cause to be remanded to the Circuit Court, to *be farther proceeded in to a final decree, according to the principles settled by the opinion of the court, with instructions to the Circuit Court, to dismiss the bill of Graves’ ex’or v. Thompson et als., as to the appellamt Sandidge’s executor, and to award to him his costs against the plaintiff in that suit; and so much of the decree in the three causes, as dismisses the bill of Thompson against Poindexter and Quarles’ executor, is to be affirmed, with costs of appeal in favor of Graves’ executor.  