
    Augustus I. Jennings et al. vs. Joseph Dennis and Moses Granberry, Administrators of Stephen Granberry, deceased.
    Where money is levied upon several executions, that is entitled to be first satisfied which issued upon the oldest judgment.
    J., being a judgment creditor of V., sued out his execution offieri facias; subsequently D., also a judgment creditor of V., whose judgment was three days the older, issued likewise execution; the executions were both levied on the same day on two slaves, the property of Y. Before the levy, J. gave an indemnifying bond; two days after the levy, D. gave a similar bond ; soon after, and before the executions on which these levies had been made had been otherwise acted on, D. sued out an alias fi. fa. to another county, and had it levied on another slave, the property of V. Afterwards D., finding the first levy sufficient, and relying on it for his debt, released the levy on the last execution. On motion for the appropriation of the money made by the sale of the two slaves first levied on, held, that D.’s judgment being the oldest, and nothing having been done to lose its lien, was entitled to the money.
    On appeal, from the circuit court of Hinds county; Hon. John H. Rollins, judge.
    Joseph Dennis and Moses Granberry, administrators of Stephen Granberry, deceased, • on the 9th day of February, 1S42, obtained judgment in the circuit court of Hinds county against Elias Tickers, for $676 08. On the 12th day of February, 1842, Augustus I. Jennings and-Drone in the same court recovered judgment against the same person for $1465 39. On the 25th of November, 1842, Jennings and Drone sued out a writ of fieri facias j directed to the sheriff of Hinds county, and had the same, upon executing to the sheriff a bond of indemity, levied, on the 5th of December, upon two slaves, George and Isaac, as the property of Tickers. On the 30th of November, 1842, Dennis, and Granberry also sued out a fi. fa. directed to the same sheriff, which was levied on the sanie slaves on the same day ; the other execution was levied December 5, 1842 ; and on the 7th of December, Dennis and Granberry executed a bond of indemnity. On the 15th of the same month, and before any further action was had on these levies, Dennis and Granberry caused another writ of fieri fiadas on the same judgment to be issued to the sheriff of Warren county, and had the same levied on a slave named John, the property of Tickers; upon which execution the sheriff of Warren returned that he had not sold the slave levied on for Want of time. Dennis and Granberry afterwards, on- the 21st of December, 1842, released and discharged, the levy on the slave John,, made by the sheriff of Warren county. The qlayes. levied, on, in. Hinds, county were sold by the sheriff of thai county, and' at the December term, 1842, of- the court, he. moved for an order appropriating the money made by their sale. The circuit court decreed the money to. be paid to the satisfaction of the judgment, in favor of Dennis and Granberry, to which Jennings and Drone excepted, and prosecuted an appeal to this court.
    
      E\ W. F. Sloan, for appellants-.
    Where two executions, in favor of different judgment creditors, are levied on the same property, he whose judgment was first rendered shall be first entitled to the proceeds of the sale. That is admitted to be the rule, when other circumstances do not intervene to change it. In this case, the appellants, by indemnifying the sheriff, having procured a levy of the property in Hinds, and thereby obtained a specific lien upon it, the appellees had a right to abandon their levy on the same property, and resort to the property in Warren for the satisfaction of their judgment. They chose to do so; and I contend that by so issuing their second execution, they necessarily waived the first and all benefit under it. So it was. held unanimously in the case of Eckhols v. Graham et al. 1 Gall, 492.
    “ Where a party sues out a second execution before the property taken by the "first is disposed of, he waives the first- execution, and destroys the lien on the property.” 2 Tucker’s Com. 365.
    
      The second execution may have been irregular, but it was not void. If irregular, it could have been quashed or set aside by order of court upon motion of one of the parties only. This was not done, and the levy made by it was good. The sheriff of Warren committed no trespass in making it; the property was thereby changed, and became subject to sale for the satisfaction of the judgment.
    Besides, the appellees, having thus obtained a specific lien on the slave in Warren, to the exclusion of Jennings and Drone, were bound so to use the security thus acquired a not to prejudice the rights of the appellants. 17 Yes. 520 : 4 Johns. Ch. R. 19.
    It follows that the court below erred in refusing to direct, the proceeds of the sale in controversy to be applied in satisfaction of the judgment in favor of Jennings and Drone.
    
      Davenport and Greaves, for appellees.
    1. The oldest judgment is entitled to be first satisfied, unless it has been delayed or suspended in fraud of the rights of other creditors. Grand Gulf Bank v. Henderson, 5 How. R. 292; Smith v. Ship, 1 Ibid. 239; Biggam v. Merrit, Walker's R. 430; Lyn v. Gridley, Ibid. 547; Carlton v. Osgood, 6 How. R. 285 ; Robinsonv. Green, Ibid. 223; Andrews v. Doe, ex dem. Wilkes, Ibid. .554; Commercial Bank of Manchester v. The Coroner of Yazoo County, Ibid. 530.
    2. Where the executions are levied at the same time, the issuance of the execution on the junior prior to that on the senior judgment, will not give the junior judgment priority. Commercial Bank of Manchester v. The Coroner of Yazoo County, 6 How. R. 530; Cresson v. Stout, 17 Johns. 116; McCormick v. Miller, 3 Penn. R. 230 ; Wood v. Vannarsdale, 3 Rawle, 401; Burchard v. Rees, 1 Whart. 377; 12 Wend. 405.
    3. The issuance of the execution to Warren county, and the release of the levy under it, did not impair or divest the lien of the older judgment. H. & H. tit. Execution, § 1; McGeher v. Handly, 5 How. 625 ; Bibb v. Jones, 7 Ibid. 397; Pickens v. Marlow, 2 S. & M. 428.
   Mr. Justice Thacher

delivered the opinion of the court.

Appeal from the circuit court of Hinds county.

The appellees recovered a judgment against Elias Vickers on the 9th day of February, 1842, and the appellants recovered a judgment against the same party on the 12th day of February, of the same year. On the 25th day of November following, the appellants sued out a writ of fieri facias upon their judgment, directed to the sheriff of Hinds county, and having indemnified him, caused a levy to be made upon two slaves, George and Isaac, the property of Vickers. On the 30th day of November, of the same year, the appellees likewise sued out a writ of fieri facias upon their judgment, directed to the sheriff of Hinds county, and on the 7th day of December following, indemnified him against the consequences of a levy. On the 5th day of December, both executions were levied at the same time upon the slaves George and Isaac. . On the 15th day of December, and while no disposition had been had upon their fieri facias, and levy already sued out and had, the appellees caused another writ oí fieri facias on their judgment to be issued, directed to the sheriff of Warren county, and to be levied upon a certain other slave, named John, the property of Vickers. Upon this execution, the sheriff of Warren county returned that the property had not been sold for want of time; and, thereupon, the appellees directed the sheriff of Warren county to release and relinquish the levy upon the slave John, choosing to rely upon the levy made by virtue of the fieri facias, in the hands of the sheriff of Hinds county. Upon the motion of the sheriff of Hinds county, the court below directed the proceeds of the sale of the property levied upon and sold to be appropriated to the execution of the appellees in preference to that of the appellants. Hence this appeal to this court.

This court has laid down the general rule, that when money is levied upon several executions, that is entitled to be first satisfied which issued upon the oldest judgment. Biggam v. Merrit, Walker’s R. 430; Lyn v. Gridley, Ibid. 547; Smith v. Pickett & Ship, 1 How. 237; Grand Gulf v. Henderson, 5 How. 294. The statute of this state, H. & H. 629, § 2, allows a judgment creditor to issue other executions, although one be already-taken out, provided the first be not returned and executed. By this statute executions may be issued to other counties, and as a consequence, may be waived or released by the judgment creditor, without affecting his judgment lien in favor of junior judgment creditors.

Judgment affirmed.  