
    
      P. Alexander, sheriff of Pickens, vs. Elijah Collins, a Constable.
    
    Where property, which is bound by the lien of a ji. fa. is sold by a constable under a magistrate’s execution, the sheriff with whom the ji. fa. is lodged, has no right of action against the constable for the proceeds of the sale.
    
      Before Wardlaw, J. at Pickens, Spring Term, 1846.
    This was an appeal from the decision of Wm. Gantt, magistrate, from whose report it appeared that plaintiff, as sheriff of Pickens, had in his office a circuit court execution, in favor of W. L. Keith vs. J. Whitten and J. Carson ; the defendant, Collins, as constable, levied a magistrate’s execution on the property of Whitten and Carson, which being bound by the older lien of Keith’s Ji. fa. the sheriff, Alexander, notified the constable thereof, previous to the sale, and required the payment of the proceeds of sale, after defraying the expenses of sale, to the circuit court execution in his hands; the constable refusing to pay over the money, this suit was brought to recover the same, and the magistrate gave judgment in favor of the sheriff. On the hearing of the case, the presiding Judge reversed the magistrate’s judgment, and the plaintiff gave notice of his intention to appeal, and now moved this court to reverse the judgment of the circuit court, and affirm the judgment of the magistrate, on the ground,
    Because his Honor, the presiding Judge, erred in holding that the action was improperly brought by the sheriff, no objection being made on the original trial, and there being in fact a right of action.
    
      Keith, for the motion.
    
      Norris, contra.
   Curia-, per

Wardlaw, J.

The case of Blair and Alexander vs. Horseby, Dud. 357, may be authority for maintaining that a plaintiff in a circuit court execution, waiving his right to pursue property of the defendant, which was bound by the lien of his execution, and has been sold by a constable under a magistrate’s execution, may, after notice, recover from the constable, the proceeds of the sale in his hands. But the general lien of an execution cannot give to the sheriff a right so to recover. After levy, the sheriff acquires an interest in the specific property levied upon, which will sustain his action of trover or trespass against a constable or other person. This interest would, in a contest between the sheriff and a constable, who had levied before the sheriff’s levy, but after the lien of the execution in the sheriff’s hands attached, have relation back to the commencement of the lien, so as to take the property from the constable, or a purchaser from him. But it would hardly be permissible, for a sheriff who had actually levied before the constable’s sale, to waive the right and duty of pursuing the property, and to claim the proceeds of that sale. However that might be, it is plain that the sheriff here cannot claim the proceeds of the constable’s sale, because he had made no levy.

The motion is therefore dismissed.

Richardson, O’Neall, Evans, Butler and Frost, JJ. concurred.  