
    Snipes against The Sheriff of Charleston District.
    Where m proceedings are had on & fieri facia 5 fer a year and a day, it does not lose its lien or binding efficacy, hut only its: active energy. The lien commences on the delivery of it to the sherriff.
    THIS was a rule served on the sheriff, to shew cause why certain monies, levied on the plaintiff’s execution, against one M'Farlane, should not be paid over to him in discharge of the debt.
    The objection to paying over the money was, that there was an execution in the sheriff’s office, prior to that of the pftktiiFs, lodged by Daniel O'Hara, who insisted that the money should be paid over to him, as he had the first lies on the goods levied.
    To this again it was replied, that O’Hara’s execution ° . . had never been renewed within the year and a day previous to the lodging of th e fieri facias in this suit; and that he had consequently lost his lien on M^Farlane’s goods, which left an opening for the present plaintiff to come in for his demand ; so that the question was, to which of the plaintiffs, the money ought to be paid — whether to the party plaintiff, in the first or second execution ?
    There were no less than three learned arguments on this question. In the first place, it was admitted by all parties that by the common law, the fieri facias bourid the defendant’s goods from the test of the writ, so that any sale made afterwards was void ; because the goods were from that time, attendant on the execution, to answer the plaintiff’s demand. That many inconveniences, however, had been experienced from this retrospective operation of the execution, in binding the goods from the test of the writ, so as to make sales uncertain, especially as the parties frequently kept these executions by them privately, so that no purchaser could know whether the defendant’s goods were bound or not, which was introductory of the wise regulation in the statute of frauds, which declares that the defendant’s goods shall fie. bound only by delivery of the writ to the sheriff, who was to mark on the back of it the day and year of its delivery ; which was in fact, no more than restoring the old common law, which supposed the writ to be delivered to the sheriff immediately from the test. So that with regard to the time of the commencement of the lien of the execution on the defendant’s goods, both by the common law and the statute of frauds, all the parties agreed.
    But the great difference in opinion was, with regard to the loss of this lien. On the part of the present plaintiff, Snipes, it was generally contended, that on the expiration of the year and day, after lodging the execution in the sheriff’s office, the lien on a defendant’s goods ceased. That if die lien was continued a day longer, it might for a year, or any given length of time, and so there would be no end to it, which would, it was contended, be absurd. That as the execution had, on the expiration of the year and day agreeable to this doctrine, lost its lien, if any other execution stepped in before a renewal cf the former one by scire facias, it had bv construction of law, a preference ; and that as there has been no renewal of O'Hara’s execution, in that case, Snipes was well entitled to have the money in the sheriff’3 hands.
    On the pther hand, again, it was insisted by the counsel against the motion, that the execution did not lose its lien or binding efficacy, on the expiration cf the year and day, only its active energy. That by the statute of frauds, the commencement of the lien was created by the delivery of the execution to the sheriff, which ivas a right given to the plaintiff; and that by virtue of this right, the defendant’s goods'Vere attendant upon the execution, for satisfaction of the plaintiff’s demand. That neither the common law, nor the statute of frauds, fixed any period to the duration of this lien and that therefore of necessity, it must remain till final satisfaction was made. It was admitted, by them, that a plaintiff could not proceed upon his execution after a year and a day, without renewing it by scire facias» But if $ younger execution forced a sale of the defendant’s goods, they must be sold subject to the prior lien, and of course such prior executions must be first paid off, in the same manner as prior mortgages must be paid off first, when sales are made upon subsequent ones. It was further insisted, that the practice hitherto had been to pay off prior executions, which had not been renewed, upon sales forced by younger executions ; and it was the duty of the court to support such a practice, as by far the greatest part of the personal property sold under execution since the year 1733, was appropriated in this manner, to the eldest executions first. That to unravel such a multitude of cases, and call in question such a mass of property as would be affected by doing away such a practice, would be throwing the country into a prodigious: scene of confusion and distress. The cases the counsel relied on, were 2 Bac. 362. Carth. 2 Show.
    
   The Court took time to consider, and afterwards delivered their opinions, seriatim.

Rutledge, Ch. J.

was of opinion that the execution lost its efficacy at the expiration of the year and day, until re» newed by a scire facias, and that this had been the former practice in this country.

Bueke, Gílimke, Waties, and Bay, Justices,

were of a contrary opinion. That the execution did not lose its bind* ing efficacy on the expiration' of the year and day, only its active quality ; and that when sales were made under younger executions the goods were subject to all prior ones, and they must, and ought to be, paid off first in order, agreeable to their seniority. That whatever might have been the former practice of the country, they thought the reason and justice of the thing, as well as the peculiar sitúation of this1 country since the peace; owing to sheriffs’ sales, bills, and instalment laws, which prevented plaintiffs, for years, from recovering their money, justified them (even if it was a doubtful case in point of law, which they by no. means thought) to support the practice of the sheriff in paying off the eldest executions first.

Rule discharged.  