Love, Sheriff, vs. Williams.-Statement of Case.

We are relieved from all apprehension of any injustice being done in this case, by the fact that the judgment now complained of being an order for a new trial, is not conclusive as to the rights of either party. A simple amendment of the sheriff's return, would effectually remove any obstacle that the opinion of the court interposes to the prosecution of the plaintiff's claim in the court below. New trials are available for the correction of the mistakes of the courts, as well as those of the jury.

The petition for rehearing is denied.

SAMUEL B. LOVE, SHERIFF, APPELLANT, V. WILLIAM WILLIAMS, APPELLEE.

The lien of an execution does not constitute, per se, a right of property in the thing itself, but a right to levy upon and sell it, for the satisfaction of the debt. But any sale or assignment of the defendant's personal property after the delivery of the writ of fieri facias to the sheriff is ineffectual as to the lien of the writ.

Where two writs of execution are delivered to the sheriff, and he executes the one last delivered first, the property of the goods is bound by the sale, and the money must be paid over to the plaintiff in the writ under which the sale was made. The plaintiff in the writ last delivered has his remedy only against the sheriff, for the breach of duty in not executing first that writ which was first delivered to him.

Where the sheriff has been guilty of a breach of duty in not levying the execution which was first delivered, the courts cannot give relief summarily, by motion rule. The proper remedy is an action on the case for a false return, or for not levying the writ.

The record in this case shows the following state of facts and proceedings in the court below, viz:

William Williams, on the 14th November, 1842, obtained judgment against James Lanier, Robert L. Harrison and

Love, Sheriff, vs. Williams.-Statement of Case.

Uz Wood, for $1,328 10, in the late Superior Court in Gadsden county. A fieri facias issued thereon, and on the 11th May, 1844, an alias writ of fieri facias was sued out, returnable when satisfied, which was delivered the same day to John G. Camp, Marshal of the Middle District, and was in his hands, unexecuted, when the State government was organized, and on the 1st November, 1845, was turned over by him to Benjamin C. West, who had been elected sheriff of the county.

A few days prior and up to the 12th November, 1849, (the appellant, Samuel B. Love, having been elected sheriff,) the late sheriff was engaged in delivering the precepts and papers in his office to his successor, the appellant, which was thus effected:-Robert C. Lester, the Clerk of the Court, was employed by the late and newly elected sheriffs to prepare a list or schedule of the executions, and which the new sheriff, Love, receipted to his predecessor for. Lester does not recollect whether the above mentioned fieri facias was among the papers so turned over; but James Hine, who was deputy for the former sheriff, says he saw the fieri facias among the papers so turned over to Love.

On the 12th November, 1849, the court-house at Quincy was destroyed by fire and, with it, all the records and papers of the clerk's and sheriff's offices, except the files of the causes for trial at the approaching term.

On the 14th November, 1849, Richard H. Wilson, executor of James Wilson, recovered judgment in the Circuit Court of the Middle Circuit for Gadsden county against Robert L. Harrison, for $2,057 29, on which he sued out a fieri facias on the 27th November, 1849, and which was delivered to the appellant, Love, the sheriff of the county, on the same day, and by him levied on the 29th of the same month upon three slaves and 400 bushels of corn, the property of the defendant in execution. The property was sold on the 7th January, 1850, for the sum of $1,050; of which

Love, Sheriff, vs. Williams.-Statement of Case.

sum, thirty-four dollars and two cents were levied for his costs and commissions, leaving a balance of one thousand and fifteen dollars and ninety-eight cents nett proceeds of said sale.

On the 7th January, 1850, the plaintiff in the first fieri facias served the sheriff with a notice, in the following

terms:

William Williams, plaintiff, v. James Lanier, R. L. Harrison and Uz Wood, defendants.-Assumpsit.

In November term, A. D., 1842. Judgment for, to wit, $1,500, in late Superior Court for the county of Gadsden, State of Florida. Last alias writ of fieri facias came to the hands of the proper officer, 11th day of May, A. D. 1844. The above described writ of fieri facias is in your hands, and there is still due and owing upon the same to the said William Williams the sum of, to wit, $1,600.

You are hereby notified that the said William Williams will hold you accountable for any property or money that is now, or may hereafter, come to your possession, belonging to said James Lanier, Robert L. Harrison and Uz Wood, or either of them, until said writs of fieri facias are fully and completely satisfied. WILLIAM WILLIAMS,

TO SAMUEL B. LOVE, Esq.,

by his Attorney, John Erskine.

Sheriff of Gadsden County, State of Florida.

Endorsements thereon, viz: I accept due, and sufficient, and timely service of the within notice.

QUINCY, January 7, 1850.

S. B. LOVE, Sheriff.

And on the 10th January, 1850, the said Williams filed his petition to the Circuit Court, praying the establishment of the record of the judgment and of the writ of fieri facias, which had been destroyed by the fire of the 12th November, and such proceedings were had, that, on the 20th day of May, 1850, the court ordered that the judgment be

Love, Sheriff, vs. Williams.-Statement of Case.

revived and substantiated, with the same force and effect as if it had not been destroyed; and on the 22d day of May, 1850, ordered and directed that a substantial copy of the writ of fieri facias, which issued on the 11th May, 1844, should be prepared by the clerk and issued, and that, when issued, should be substituted in the place of the original, which was destroyed.

On the 21st May, 1850, Williams, the plaintiff in the fieri facias against Lanier, Harrison and Wood, moved for and obtained a rule upon the appellant, to show cause why he does not pay over to the plaintiff $1,050, in his hands, collected from the defendants in said suit.

To which rule, the appellant answered as follows, viz: "In answer to the rule entered in this case, on the motion of John Erskine, Esq., attorney for the plaintiff, the sheriff says that he does not know whether any execution ever came to his hands in the above stated case; but if the execution in this case did come to his hands, it was destroyed in the fire, which consumed the sheriff's office on the 12th day of November, A. D., 1849. That, afterwards, on the 27th day of November, 1849, an execution came to his hands in favor of Richard H. Wilson, executor of James Wilson, against Robert L. Harrison, for the sum of $2,057 29-100, which he levied on the following property: Judy, about 24 years of age, and her three children-Sarah, about 6 years-Kinch, 4 years, and John, about 2 years; which property was sold, under and by virtue of said execution, for the sum of $1,150, which, after deducting $34 02-100, left a balance of $1,015 98-100-of which sum, he paid over to R. E. Gibson, attorney of Richard H. Wilson, executor as aforesaid, $1,000, leaving in his hands $15 98-100, subject to the order of this court. S. B. LOVE, Sheriff."

Exhibiting with his return a copy of the fieri facias of Wilson's executor v. R. L. Harrison, with the levy and sale endorsed thereon.

Love, Sheriff, vs. Williams.-Argument of Counsel.

On Thursday, November 21, 1850, the Circuit Court made the rule absolute, directing the sheriff to pay over to the respondent's attorney the amount collected by the said sheriff on the fieri facias in favor of R. H. Wilson, executor, v. R. L. Harrison, and to be applied, it is presumed, to the satisfaction of the fieri facias in favor of respondent, against Harrison, et al.

From this judgment the sheriff brought this appeal to this court.

Gibson, for Appellant.

This is a rule on the sheriff to show cause why he has not paid over the money. The rule is designed to be in accordance with the statute to be found in Thompson's Digest, page 358. Tidd's Practice, pages 58-9.

This remedy was only given by the statute, in cases where money has been actually collected on an execution. The rule should have alleged that the money mentioned in the rule had been collected on the execution of Williams v. Harrison, et al.

The English practice is to rule the sheriff to return the writ, and if the party is not satisfied with the return to sue the sheriff for a false return. Clerk v. Withers, 1 Salkeld, 322, 323. Tidd's Practice, page 309. Thompson's Digest, page 355.

The court below confounded the practice under the statute and the English practice, by ruling the sheriff to return the writ, and then declared the return false, and entered up judgment.

The sheriff had a mandate from Gadsden Circuit Court to execute, to wit, the execution of Wilson v. Harrison, and this he must do, until a superior mandate supervenes.

The notice was incomplete, in not stating that the execution was lost, but if complete, was not sufficient to stop the execution of the fieri facias. Thompson's Digest, page 360.