Wells and another against Marshall; Morrison and another against The Same

Wells and another against Marshall. Morrison and another against The Same. A fi.fa. de livered to the sheriff takes preference of an attachment, levied before the fi fa. but after the delivery of the fi. fa. to the sheriff In the first cause, z. fi.fa. against the goods of the defendant was delivered to the sheriff of Ulster, on the 18th April, 1825. On Tuesday evening, the 19th of April, the plaintiffs in the second cause obtained an attachment against the goods of the defendant, from a Justice of Ulster, under which, early on Wednesday morning, the 20th, a constable levied on, and took into his custody, the defendant’s goods, the fi.fa. not yet being levied; but, on the same day, the sheriff went to the defendant’s dwelling house and levied on all the goods to be found. And the question was, which process should take preference. By agreement of the parties, the sheriff had sold all the defendant’s goods; and they now requested this Court to direct the disposition of the money in his hands. Judgment had been duly obtained on the attachment, for $30. The constable had notice of the fi. fa. and was forbidden, by one of the plaintiffs named in it, to remove the goods. C. G. Dewitt, for Wells, &c. insisted that the fi.fa. took preference, by the delivery, though the attachment was first levied, and cited Lambert and others v. Paulding, (18 John. Rep. 311,) which he said was decisive. J. Sudam, contra, cited 2 Eq. Cas. Abr. 381; 12 John. Rep. 162, 403, 407 ; 4 East, 1, 523; and 3 M.&S.371. [MAJORITY — Curia.] Curia. The case of Lambert and others v. Paulding, is decisive, that the fi.fa. must take preference Rule accordingly.