
    Grand Gulf Bank v. Henderson.
    When money is levied under several executions, that is entitled to be first satisfied which issued upon the oldest judgment, unless it has been delayed or suspended in fraud of the rights of other creditors.
    ERROR from the Circuit Court of Ciaiborne county.
    On the 24th day of May, 1837, the plaintiffs obtained four several judgments in the circuit court of Claiborne county, against P. Hooper and others, on which executions were regularly sued out. Levies were made, and forthcoming bonds taken and forfeited, and so returned to the November term following. Executions were again taken out by the plaintiffs on each of their judgments, to each succeeding term of the court, but were in every instance returned not satisfied or levied. The defendant in error obtained a judgment against P. Hooper and o&ers on the 12th of May, 1838, on which an execution, being a pluries, was issued in February, 1840, and levied on a number of slaves. A venditioni exponas was afterwards issued, and the slaves advertised to be sold by virtue of it. Before the day of the sale the executions on the judgments in favor of the Bank were again placed in the hands of the sheriff. The sale was then postponed to a further day, and the property re-advertised to be sold, in virtue of the several executions of the Bank, and a Iso of the venditioni exponas. The property was sold, and the proceeds returned with the executions to the court from which they issued. A. motion was then made for an order of the court upon the sheriff, to apply the money in his hands to the satisfaction of the venditioni exponas, in favor of R. T. Henderson. The motion was sustained. There was also a written agreement filed with the record, stating that the plaintiffs had taken out their executions at each term of the court from the rendition of the judgments until the levy and sale were made under which they claimed the money.
    The error assigned is the judgment of the court below.
    
      Maury, for plaintiff in error.
    The question in this case is raised' by a motion to apply money levied on the execution of an older judgment to satisfy the execution of a younger judgment. '
    The .claim of Henderson relies mainly on the authority of the decision of this court in the case of Michie against the Planters’ Bank. In that case the court decided against the claim of'the oldest judgment, on the ground that it had been stayed by the consent of the bank, and Avas in .fact suspended when the execution of Michie was brought into action. In this case, though there was a considerable interval between the date of the judgment, and the date of .the levy, it does not appear that there was a stay of execution in either case. On the contrary, it is shown expressly by the record that the bank had continually pressed its executions from court to court till the money was collected. There is nothing in the case that shows a disposition in the bank, either to suspend its own collection, or to impede the demands of others. And when the property Avas ultimately brought to sale, the money that Avas. made is attributable to-the bidding of the bank in competition with the bidders Avho held heavy mortgages on the property. -
    From the. returns'of the sheriff endorsed on the venditioni of Henderson, and the fi-fd. of the bank, it is evident that the property was sold under the'execution of the bank; and their judgment being more than twelve months the older, and the forfeiture of their bond‘having occurred more than six months prior to the date of the judgment of Henderson, by what authority can the money be applied to satisfy the execution of a younger judgment on which the sheriff returns that he did not sell.
    By the judgment a lien is fastened on the property of the defendant which cannot be affected by any accidental or intentional delays of the ministerial officer. If the lien of a judgment on personal property, is, in its consequences and extent, similar to that on real estate, (and the law»makes no distinction,) the principle of the case ‘is established in favor of the bank by the. authority of the case of Shotwell «. Murray, 1 John. Ch. R. 513, and,by the case of Lynn v. G-ridley, Walker’s Rep. 548, Avhere the doctrines of Shotwell®. Murray are recognized by the decision of this court
    
      Thrasher, for defendant in error.
   Opinion of the court by

Mr. Justice Teottee :

In support of the decision of the court below, the counsel for the defendant in error relies upon the decision made by this court, at a former term, in the case of Michie v. The Planters' Bank. But that case was determined upon grounds widely different from those involved in the present. The execution of the bank was held to be dormant as against Michie on account of the express agreement of the former, to stay the execution, then in the sheriff’s hands, until the next term of the court, and the promise of a like stay for the succeeding six months. The court held the lien of a judgment creditor under the act of 1824, to be a security merely, which it was his duty to pursue with diligence and in good faith. That it could not be delayed or suspended to the prejudice of other creditors, nor be permitted to wrest from them the fruits of their vigilance and activity. That case went on the ground that the conduct of the bank was a fraud in law upon the rights of Michie. That their lien was consequently postponed as to his, and that the money raised on his execution should not be applied to them. But no such agreement or delay is shown in the present case. For it is shown by the written agreement of the parties which accompanies the record, that the plaintiffs pursued their remedy with the ordinary diligence, by taking oirt their executions at each term of the court, from the time of obtaining their judgments^ until the levy and sale were made, under which they claim the money. Both executions were in the hands of the sheriff at the time of the sale, but it appears that he sold under those of the plaintiff’ in error. The case of Smith and Pickett v. Ship, 1 How. 237, lays down the true rule, as we conceive, that when money is levied under several executions, those are entitled to be first satisfied which issue upon the elder judgments. The cases of Biggam v. Merrit, Walker’s Rep. 430, and of Lynn v. Gridley, Ibid 547, are authorities for the sanie proposition.

The judgment must, therefore, be reversed, and judgment rendered here, that the money be applied to the satisfaction of the judgments of the plaintiffs in error.  