YALE a. MATTHEWS

YALE a. MATTHEWS. Supreme Court, Fourth District; General Term, Jan., 1861. Attachment.—Lien and Priority. Where several attachments, issued under the Code of Procedure, against the same defendant, are actually levied on the same property, the one first delivered to the sheriff has priority, though it was the one last levied. The provision of 2 Revised Statutes, 366, §§ 14, 15,—that in the case of the delivery of several attachments out of courts of record against the same defendant, the one first delivered should have preference, notwithstanding a levy on the . same property might be first made under another attachment or execution,— applies to attachments under the Code of Procedure; but the attachment first delivered must be actually levied on the same property in order to gain such priority. Appeal from order directing the sheriff in the application of moneys collected by him under attachments. Two actions were brought against the defendant by different plaintiffs at about the same time.. Each plaintiff on the same day obtained an order in his action, granting an "attachment under the provisions of the Code of Procedure against the property of the defendant. The attachment issued in the suit of the plaintiff Yale was delivered to a deputy-sheriff in the evening, and on the same evening was levied by him on defendant’s property. The attachment in the suit of the other plaintiff, the Oswegatchie Bank, had been delivered to another deputy of the same sheriff, at an earlier hour of the same day, but was not levied until the following day, when it was levied upon the same property. The property attached was sold, and the proceeds being insufficient to pay both the judgments which were subsequently recovered in these actions, the plaintiff Yale moved for an order directing the sheriff to satisfy his execution first; but the motion was denied, and he appealed. Dart & Tappan, for the appellant. . The provisions of 3 Rev. Stat., 5 ed., 645, §§ 14, 15, have no application to attachments under the Code of Procedure. The attachments under the Revised Statutes are jurisdictional writs, but that provided by the Code is a mere provisional remedy, and creates no lien until an actual seizure. Priority is determinable by the time of actual levy. (Burkhardt a. Sanford, 7 How. Pr., 329; Learned a. Vandenburgh, 8 Ib., 17; affirming S. C., 7 Ib., 379. See, also, Houghton a. Ault, 16 Ib., 77; S. C., 8 Abbotts’ Pr., 89.) J. H. Brinkerhoof, for the respondent. The following cases further illustrate the subject. Where a sheriff has two executions against the same defendant, and having levied part of the amount of the prior execution, proceeds, after the return-day of that execution, to make another levy, he must apply the sum thus made to the junior execution. (Slingerland a. Swart, 13 Johns., 255 ; S. P., Tail a. Lewis, 4 lb., 450.) If two executions are duly delivered to the sheriff, and he levies under the one last delivered, the one first delivered will nevertheless take precedence, provided an actual levy be made under it, before a sale of the goods under the other. (Camp a. Chamberlain, 5 Dm., 198.) If, after levy, the goods be sold under a subsequent execution, the money must be applied to the first. (Russell a. Gibbs, 5 Caw., 390; and see Rowe a. Richardson, 5 Barb., 385, and 1 T. R., 729.) Money collected by sale of goods upon two executions delivered together, issued upon judgments docketed at the same time, is to be applied equally, until the smaller one is satisfied. (Campbell a. Ruger, 1 Cow., 215.) If, after execution delivered to the sheriff, but before levy, a constable levy and sell, under a justice’s execution, the purchaser will hold against the .sheriff. (Marsh a. Lawrence, 4 Cow., 461. To the same effect is 2 Reo. Slat., 366, § 16.) Where a constable, having notice that the sheriff had received an execution, and being forbidden to interfere, nevertheless levied an attachment before levy of the execution,—Held, that the execution must take preference. (Wells a. Marshall, 4 Cow., 411.) Where a deputy levied, and then, by consent of the plaintiff in the execution, allowed a delay, and subsequently the under-sheriff levied on and sold the same property under a junior execution, a motion to compel the application of the proceeds to the former execution was denied, leaving plaintiff to his action against the sheriff. (Barstow a. Thorne, 2 Haw. Pr., 64.) The delivery of the execution to the sheriff binds the goods; so that where goods, after the delivery, but before actual levy, are removed by the debtor into another county, and there taken and sold by the sheriff of that county, under a junior execution, though the bona-fide purchaser at such sale acquires a valid title to the goods, yet the proceeds in the hands of the sheriff will be ordered to be applied first to the first execution. (Lambert a. Paulding, 18 Johns., 811.) Though the judgment should be docketed before execution is issued, where the execution is sent to the sheriff at the same time that the transcript is sent to the clerk, but is received by him before the judgment is docketed, the execution takes priority from the time of the docketing. (Stoutenburgh a. "Vandenburgh, 7 How. Pr., 229.) An execution against all the members of ai partnership takes precedence of a prior execution against an individual member. (Crane a. French, 1 Wend,., 311; Dunham a. Murdock, 2 lb., 553 ; S. P., Matter of Smith, 16 Johns., 102; and see Schrugham a. Carter, 12 Wend., 131.) If, after levy on the execution against an individual member, the sheriff receives an execution against the firm, he should sell on the latter; and if there is no surplus, may return the former nulla bona. (Dunham a. Murdock, 2 Wend., 553.) But where the execution against the firm comes to the sheriff’s hands so short a time before the sale that the sale is had upon the individual execution alone, the proceeds cannot be diverted to the execution against the firm. (Fenton a. Folger, 21 Wend., 676.) The attachment under the Code is a lien, not on all defendants’ property, but only on such as is actually levied on. (Learned a. Vandenburgh, 8 How. Pr., 77 ¡ affirming S. C., 7 lb., 379.) The lien of an attachment on land under the Code, as well as under 2 Bev. Stat., 377, dates from the time of the seizure of the property attached, and from that time only. (Burkhardt a. Sanford, 7 How. Pr., 329; and see 6 Hill., 363.) Where successive attachments were delivered to the sheriff, who, under the earlier, returned that he had attached all the personal property of defendant, and personal property only, and under the later he returned that he had attached all the real and personal property,—Held, that the returns were conclusive, and gave the later process priority over the former as to the real property. (Learned a. Vandenburgh, 7 Haw. Pr., 379 ; 8 lb., 77.) Attachments under the Code do not bind all the debtor’s property in the county frbm the time of issue, but only that levied on, and from the time of levy, so that where a junior attachment is levied first, it has preference. (Supreme Ct., Sp. T., 1854, Parker a. Smith, 2 Liv. Law Mag., TIO.) See, also, Patterson a. Perry, 10 Ante., 82. [MAJORITY — By the Court.—Rosekrans, J.] By the Court.—Rosekrans, J. —The Revised Statutes provided for the issuing of attachments against property in various cases as a remedy for the collection of debts. This process could be issued against absconding, concealed, and non-resident debtors (3 Rev. Stat., 5 ed., 78); against debtors confined for crimes (Ib., 90); against ships and vessels (Ib., 795); and against foreign corporations (Ib., 754; 2 Ib., 3 ed., 553). In all these cases, except the last, the proceedings were for the benefit of all the creditors of such debtors, and all persons who had liens against such ships and vessels; and each of the statutes provided, in substance, if not in terms, that the proceedings were to be taken under the process first issued. In relation to proceedings against absconding, concealed, and nonresident debtors, the statute provided (3 Ib., 85, § 41) that if, after the issuing of any warrant of attachment, any other warrant should be issued and levied upon any property of the debtor, such subsequent warrant and service should be deemed to be a part of the proceedings upon the first application, in the same manner as if such subsequent warrant had been issued by the officer who granted the first warrant. In the proceedings against ships and vessels, no second warrant could be issued, unless the first was superseded (Ib., 797, § 7); but the proceedings by attachment, against foreign corporations, were for the sole benefit of the plaintiff in the suit, commenced by the issuing of the process. (2 Ib., 3 ed., 553, § 15.) This was the only case under the Revised Statutes where a suit could be commenced in a court of record by attachment, and the only instance in which the proceeding was for the sole benefit of the plaintiff. The statute expressly provided that the property seized, or the proceeds of such'portion as should be sold, should be kept to answer the judgment which might be obtained in the suit. (Ib., 554, § 21, 3 ed.; 3 Ib., 757, § 19.) The statute (3 Ib., 645, 5 ed., §§ 14,15),—which provided that if there should be one or more executions, and one or more attachments against the property of the same defendant, or if there be several attachments, that the one first delivered to an officer to be executed shall have preference, notwithstanding a levy might be first made under another attachment or execution,—had reference solely to attachments against foreign corporations. It speaks of process “ issued out of a court of record against the same defendant,” which language is only applicable to a party against whom a suit is commenced. Under the Revised Statutes the absconding, concealed, or non-resident debtor, or the imprisoned debtor, or the owner of the ship or vessel against which process of attachment was issued, were neither of them defendants; nor were such attachments issued out of a court of record. They were issued by certain officers out of court, acting as commissioners, and not as a court. It had been the law ever since the Statute of Frauds was enacted (29, ch. 2), that, instead of a debtor’s goods being bound.by execution from the test of the writ, they should only be bound from the delivery of the writ to the sheriff; and that, in the case, of several writs against the same defendant, that which first came to the sheriff’s hands should be first satisfied. (Smallcorn a. Sheriff of London, Comb., 428. The facts, points, and names of the parties in this case, are said to be all mistaken by Comberback (4 East, 540); but the correct report will be found in 1 Ld. Bay., 252 ; 1 Salk., 320 ; Comyns, 35 ; see, also, Hutchinson a. Johnson, 1 T. R., 727; Jones a. Atherton, 7 Taunt., 57.) There is a strong analogy between the attachment which is to secure the defendant’s goods, to answer the plaintiff’s judgment, and an execution issued to obtain satisfaction of the plaintiff’s judgment. The principal difference is in the point of time in the progress- of the suit at which they are issued. The purpose of the two writs is the same. There was, therefore, a manifest reason for placing both kinds of process upon the same footing, and establishing a rule by which the priority of both should be determined in cases where several writs of both, or either kind, against the same defendant, should be issued to the same officer. The statute effecting this object has never been repealed, but has been continued in force expressly by section 17 of the first article of the Constitution of the State, and, as to executions, by section 291 of the Code. The Code (section 227 and following) has added to the number 'of cases in which the preliminary process by attachment in court suits can be resorted to for the collection of debts, and in which the process is solely for the benefit of the plaintiff in the action. It secures property to answer the judgment which he may obtain; it includes actions for the recovery of money, against foreign corporations, or against non-resident defendants, or absconding or concealed debtors, or any person or corporation about to remove any of his or its property from the State, or defendants who have assigned, disposed of, or secreted, or are about to assign, dispose of, or secrete any of their property, with intent to defraud their creditors. There is nothing in the Code inconsistent with the provision of the Revised Statutes, regulating the priority of attachments where several are delivered to the same officer against the same defendant,- and a levy is made by virtue of all upon the same property. The difference between the Revised Statutes and the Code, as to the extent of the levy to be made under the old and new attachments, cannot affect the question of preference where the attachments are levied upon the same property. The property levied upon, or attached, is only held by and from the date of the seizure. (6 Hill, 363; Burkhardt a. Sanford and others, 7 How. Pr., 329 ; Learned a. Vandenburgh, Ib., 379; 8 Ib., 77.) In the last case, Parker, J., says: “ It (the attachment) is not of itself a lien on property, but only on such property as is levied upon under it. ' In this respect it is like an execution against personal property; but as to real property it is different from an execution, because, under an attachment, the lien depends tipon an actual levy, whereas under an execution it exists by virtue of the previous docket of the judgment on which the execution was issued.” The rule prevails in regard to executions, that where a levy is made by virtue of one, and after-wards another, against the same defendant, comes to the hands of the same officer, the levy already made shall inure to the benefit of the plaintiff in the second execution, and be regarded as made under it. This rule does not seem to be applicable to attachments. Under each attachment there must be an actual levy or seizure. This is the rule even as to real estate, and the return of the writ, or the inventory attached, is the evidence of the seizure. The case of Learned a.Vandenburgh (supra), upon these principles, is not inconsistent with the ruling in the case under consideration at special term. In that case the surplus money on sale of the defendant’s property, which was the subject of contention, arose from the sale of his real estate. Five attachments had been issued by as many different plaintiffs on different' days, between the 1st- and 12th days of April, under all of which the sheriff had seized all the personal property of the defendant. On the 17th of April another attachment in favor of Mallary and Ingalls was issued, under which the sheriff attached the same personal property, and all the real estate of the defendant. The personal property was sold, and did not satisfy all the judgments in the actions in which attachments had been issued, before the 17th of April. Three hundred and seventy-five dollars was realized from the sale of the real estate, and the court held that it should be applied to the payment of the judgment in favor of Mallary and Ingalls, in preference to those in favor of parties who had had attachments issued prior to that of Mallary and Ingalls, because the former had not secured any lien by their attachments, which were levied only upon the personal estate. This left the real estate free for the operation of the attachment of Mallary & Ingalls, on whose behalf alone it was attached. Harris, J., says, in the same case (7 How. Pr., 382): “ When several attachments have been served upon the same property, the priority of their respective liens must be determined, I suppose, by the order in which the attachments were delivered to the sheriff.” In this case, the several attachments were served upon the same property, and in accordance with the provisions of the Eevised Statutes, already referred to, and the opinion of Mr. Justice Harris, above quoted, the attachment first delivered is entitled to priority, although the seizure of the property was first made under the attachment which was subsequently issued. The order of the special term should be affirmed, with §10' costs. Present, James, Rosekrans, Potter, and Bocees, JJ.