
    JANUARY TERM, 1844.
    James S. Lucas v. Stewart and Mitchell, use of Samuel Hildeburn.
    A judgment-creditor does not lose his lien, unless it be by some act of his own, either of omission or commission.
    If he has neither been guilty of fraud, or such laches as will furnish evidence of fraud, nor given a voluntary stay of execution, his lien will be protected.
    Error from the Circuit Court of Madison county.
    This was a motion to appropriate money collected by the sheriff. The facts are fully and accurately stated in the opinion of the Court.
    Shackleford, for plaintiff in error.
    The counsel for appellant rely upon the following reasons why the order of the Court appropriating the money to the execution, should be reversed. It is true the judgment of Stewart & Mitchell v. R. Eubank, is the oldest. Yet the plaintiffs, after obtaining their judgment, permitted it to rest- for two years before they found any property to levy on ; and even then, did not use any diligence to collect their money, but waited until Lucas had hunted up some property, which he was willing to try the right of, or which he believed belonged to one of the defendants to his execution. And after Lucas had found the property, and caused his levy and advertisement to be made, the defendants in error, seeing the advertisement, took out an execution on their case, and two months after the levy of Lucas, caused their execution to be levied on the property hunted up by Lucas.
    Lucas, therefore, contends he should have the money on the score of his superior diligence; that the defendants in error should not be entitled to the money raised by his industry ; that if he had not found the property levied on, they probably never would, inasmuch as they had for two years rested on their judgment without finding anything to levy on ; also, that the property was claimed by a third party to both executions, and Lucas being the first to levy, was incurring the danger of a chancery- suit, and also an action for a trespasg. Lucas, therefore, claims the money on the score of diligence. The legal, principle is too well known to the Court, to require at the hands of Lucas’s counsel any reference to cases, and particularly as the question has been adjudicated by the present Court, and the old Supreme Court.
    The second ground relied on by the plaintiff in error, is, that although he may not be entitled to the money on the score of diligence, yet our levy was made first, by more than two months, which will give us the money under the decisions made by this Court in the case of the Commercial and Railroad Bank v. -, from Warren; and the case of Andry v. 'Corwin, from Yazoo.
    Upon this state of facts, the counsel for the plaintiff in error rely upon a reversal of the order of the Court below, and that the Court order a satisfaction of Lucas’s judgment first, and the balance to be applied to the case of Mitchell & Stewart, use, &c.
   Mr. Chief Justice Shakkey

delivered the opinión of the Court.

The question in this case arises out of an application to appropriate money collected under executions. The defendants in error recovered judgment against one Eubank on the 13th of February, 1839, and sued out execution returnable to the next term, which was returned nulla bona. This was to April term,, 1839, and there was then a cessation of execution for one term only. After the October term, 1839, an alias issued, which was also returned nulla bona at the May term, 1840. An execution then issued against the plaintiff for costs, returnable to November term, 1840, at which term the plaintiff in error recovered his judgment, and sued out execution i;eturnable to May term, 1841. The plaintiff, Lucas, or his attorney, pointed out property to the sheriff, and insisted on his making the levy, and offered to give an indemnifying bond if necessary. Pending this levy, the defendants in error sued out another execution, and had it levied on the same property. The sheriff proceeded to sell, but the bid was not complied with, which fact he returned on the executions to the ne,xt term, so that the levy under both remained. In each case a venditioni exponas issued, and the land was sold under both, and the question is, who is entitled to the money ? Lucas predicates his right on his superior diligence, and the defendant’s laches. The delay in prosecuting an execution may be so palpable as to furnish evidence of fraud, or the plaintiff may lose his lien by a voluntary stay, but no such negligence is imputable to the defendants in error. They seem to have prosecuted their execution with at least a tolerable degree of vigilance. The law has appointed the sheriff to execute final process, and it is his duty to find property if it is to be found, and the law presumes in favor of the discharge of his duty. The return of nulla bona was at least prima facie evidence that the defendant had no property. The defendants in error then stood in the attitude of judgment-creditors, who had several times sought for property, but were unable to find it. Lucas, however, by his superior knowledge, was enabled to designate property to the sheriff, and the defendants in error, learning that Eubank really had some property, had their execution levied on it also. The record does not furnish such evidence of laches as to deprive them of their lien. It is believed, that a judgment-creditor does not lose his lien, unless it be by some act of bis own, either of omission or commission. We cannot undertake to give preference to a junior judgment on anything short of palpable grounds. The law gives the preference, and we cannot disregard it without good cause. The levy in this case seems to have resulted rather from Lucas’s superior knowledge or skill, than from his superior diligence. Diligence is a great favorite with the law, but it presumes that superior knowledge will take care of itself. It is also said, that there was a doubt resting on the title of the property, and that Lucas, therefore, run the risk of encountering a law-suit. This is not sufficient to give him a preference. It turned out, that the property belonged to Eubank, and was liable to the elder lien. The doubt resting upon it could not changé the lien. This circumstance is rather calculated to relieve the defendants in error from the charge of negligence. It seems to have been so difficult to find property, that it is not surprising that they had failed. ■ The Court we think decided correctly in favor of the senior judgment-creditor, and the judgment must therefore be affirmed. ■  