
    William Geeenwood, et al. vs. William Naylor.
    Where a ,/t.fa. was lodged in the office of the sheriff of the district of Charleston, marked “ lodged to bind,” v/liich the court considered a.a stay, and a/, fa. subsequently delivered to the City sheriff with an or ■ dor to “ levy and sell,” and the City sheriff accordingly sold the per ¡>onal property of the defendant, and had the proceeds in 1ns hands ; «pon a rafe the Court Held that the execution first delivered should be first paid.
    An execution stayed does not lose its binding efficacy, only its active qualify ,- and one being lodged in the office of the sheriff of the district of Charleston, and the other in the office of the City sheriff of Charleston, docs not vary the application of this rule.
    Tried in tbe City Court, July Term, 1820.
    rp JLÍ1E Recorder reports tbe case as follows : a' A rule was served upon the City sheriff, to shew cause, why be should not pay over to tbe actors, a sum of money in his bands, arising from personal property sold by him under a writ of fi. fa. in tbe case of Lowden vs. the same defendant. ri he actors had lodged their executions in the office of the chcrf/ oj Charleston district, before Lowden liad delivered his to the City sheriff; but the former had indorsed upon their executions “ lodged to bindf and the latter bad ordered the city sherifi “ lo levy and sell:” The City sheriff, accordingly sold the personal property of tbe defendant and had the proceeds in bis hands. Under these circumstances, the City sheriff*shews for cause, why the money should not be paid to the actors, that it had been claimed by Lo-ivdcn upon the ground, that as his execution was the only one executed, he is exclusively entitled to the money made under it,
    “ It was contended by the actors, that the executions lodged first must be first paid ; that they bound the personal property of the defendantfrom the time-of their delivery, and therefore that the City sheriff was bound to pay to them the money which had arisen from a sale under a younger execution.
    u On the part of Loxvden, it tras urged, that the City idu riff war, bound to deliver to him die money uu;c¡e under Lis execution ; that the actors, by’enforcing their executions might have been paid before him, but by indorsing u lodged to bind" they shewed their intention that the sheriff should not proceed ; and accordingly that he had done nothing. That admitting, abstractedly, the prior right of the actors, their permitting the defendant to remain in the possession of his property, without taking anv steps against it, amounted to a legal fraud, which gave a prcfei ence'to a junior creditor acting upon his rights. It was likewise insisted upon, that the sale having been made under a f. fa. issuing from the City Court, the City sheri/yliad no right to pay any attention to the liens upon the defendants property, which existed in the office of the sheriff of the district.
    
    “ The Statute of Frauds says,thatno writ of jl. fa. Skc, shall bind the property of the defendant, but from'the time that such writ shall be delivered to the sheriff to be executed. The actors did not deliver their executions u to be executed.but on the contrary, they were delivered not to be executed ; for certainly the wordslodged to bind”, meant that they were to be retained by the sheriff without proceeding upon them 5 it being presumed according to the pretalent practice, that if any junior execution creditor should have the debtors property sold, that the proceeds would be appropriated towards the satisfaction of the executions, in die -order of their dates. Had directions been given to the hheriff to proceed to levy and sell, ánd he had not done so-he might have been responsible to the actors, but such were not the directions. Under these circumstances, I .hould say, according to the common law, the Statute oí Frauds and the English decisions, that the sheriff would be bound to pay the money in his hands to Lorvden. There are verv many authorities in support of this opinion. 1 shall merely refer to the following, in nhich, pei’naps the precise point in issue, under this rule, is the most directly illustrated, i. e. (Snudicornb vs. Buckingham, 2 Esp. Dig £-11. Sice vs. Serjeant, Y JDd. 07. Kempland vs, Ma-•rauley, Peake's A’. P. 05. Payne vs. Dreive, 4 East. Sep. 523. J But I think the decisions havebeen otherwise in this. State. - In the cast' of Snipes vs. The Sheriff of Charleston District, (1 Bay, 295,J the Court said, an execution does not lose its binding efficacy on the expiration of a year and a day, only its active quality ; and that when sales syere made under younger executions, the goods were subject to all prior ones, and they must be paid off, in order, agreeably to their seniority.” It is clearly to be col-Lcted from the statement of this case, and the language of the Court, that, the eider execution had been merely lodged in the sheriffs office, without any directions to pro-cs ed, or with diieclio.i.s not to proceed. If such were not the directions, either expressed or implied, it is unintelligible, why the sheriff should have levied and sold, exclusively, under the younger execution. It is an unavoidable presumption, that if under the older execution, there had been directions to levy and sell, that those directions would have been conformed to, as they were in the case of the younger execution. If the fact were otherwise, the sheriff would have been responsible. The circumstance of upwards of a year and a day having elapsed since the lodging of the ft. fa. would have been immaterial, if there had been a levy ; because, noin ithstanding such a lapse of time, the sheriff could' have proceeded to sell. fSce. Gzbbes vs. Mitchell, 2 Say, Í23■<<.) Considering mvsell bound by our own adjudication!., Í ordered the rule to to' made absolute, and the city sheriff to distribute the money in his hands among the creditors of the defendant, according to the dates of their respective liens. I did not think that any difference was created in the application of this rule, by the executions having been lodged in different offices. A notice that this decision would be appealed from was served upon me; the grounds are inclosed.”
    The plaintiff in the City^ Court now moved the Constitutional Court to overrule the decision, and to order the money made under his execution to be paid to him, on the grounds,
    1st. That an execution delivered to the sheriff, marked, “ lodged to bind,” never enforced, and returned “ nulla bo-na,” was not in law entitled to a priority over an execution subsequently lodged, with orders to proceed., and under which the money was made.
    2d. That by permitting the goods to be sold, the execution of appellees, even admitting their prior lien on the goods, cannot in a court of law follow the proceeds or money arising from those goods, in the hands of a third person.
    3d. That to bind tbe goods of a defendant, an execution must be lodged with the sheriff to be executed.
    
    4th. That the City Sheriff, after making the money under an execution in his office for the appellant, could not pay the money to another execution in a different office.
    5th. That without alleging or supposing any moral fraud on the part of the appellees, their permitting the defendant, Wm. Naylor, to remain-in possession of the property, without taking or ordering any proceedings against it, amounted to a legal fraud, which gave a preference to the execution of the'appellant.
   Mr. Justice Richardson

delivered the opinion of the court.

After the report and opinion of the City Judge, the grounds of appeal require little discussion. The case of Snipes vs. The Sheriff of Charleston District, appears to me to have settled the main question; and the practice has been so uniform under that decision, that it ought not to be now disturbed. The Court of Equity too, appears to have adopted the same rule. (See 3d Equity Reports, 539.) So that the decision in 1st Bay, has been well supported. Whatever is determined upon such authority establishes the law, and makes a precedent fas' future cases, (4 Burr. 2545. 7 Term, 668.)

The motion is dismissed.

Justices Johnson, Gantt and Colcock, concurred.  