The plaintiff's execution was a lien upon Brown’s property, and when on the 7th of October, it came into the defendant’s hands, there were not until the last of that month any other conflicting executions. No reason is assigned why that execution was not levied upon Brown’s property during that time. The law declares it to be the duty of the sheriff to execute all process which comes to his hands with the utmost expedition, or as soon after it comes into his hands as the nature of the case will admit. (Bac.Abr. Sheriff, N. Dalt. Sh. 109.) But it is further stated on behalf of the defendant, that although executions came into the hands of the constable Carman, on the last of October, that those excutions were levied upon Brown’s property, but that he did not remove any part of it, or .place it in the care of any person, that he advertised, and sold it ten days afterwards: that during that time, on the fourth day of November, the defendant went to Brown’s house, where the property was on which the constable had levied, and that he failed at that time to levy upon it. In this I think he was again *554guilty of neglect, for I cannot hesitate, in believing that the property was subject to the plaintiff’s execution- for it had the first lien upon it, which could not be divested ^y a mcre levy of the constable, so that the defendant bad between thirty and forty days from the time the execution first came to his hands, to execute it. I give no opinion in a case where an execution issues to a sheriff and is a lien on property, and a constable under an execution of junior date, seizes and sells the property, before the sheriff had it in his power to levy upon and seize, it. I think, in this case, the defendant made a false return, and that he was also guilty of neglect in not satisfying the plaintiff’s execution out of Brown's property.
In this case I wish not to express an opinion upon the priority or preferable right to satisfaction, of the executions; but if a posterior execution could, by being levied by another officer, as by a constable, or the United States’ marshal, gain a preference over one in the sheriff’s hands, I think that the possibility of such preference being gained should quicken the exertions oi the sheriff, even beyond what the common law required: for by that law there was no such danger, there being but one person in the county fthe sheriff) to execute process; and where there are two persons in one county exercising the office of sheriff, as in Middlesex, they both form but one officer, the act of the one is the act of both, and both must be sued. And the law guards the right of the plaintiff against voluntary alienations of the debtor. The sheriff should, therefore, proceed with all convenient speed to levy the execution / in his possession. His omiting to do so from the 7th of October to the 1st of November, and more particularly on one so shortly thereafter returnable, to wit, on the third Monday of November, was a neglect which rendered him liable; and this would be neglect, I think, independent of the possibility of the property being taken *555by posterior executions, and if no such risk existed, that is. that posterior executions could not gain the pre-1 r ferenee. then his return of mala oona was false, for there was property in the defendant’s possession and liable to the plaintiffs’ execution when the sheriff went to the house of the defendant. As to the plaintiffs’ hastening the sheriff by a request to proceed immediately, he seeks not to recover for want of extraordinary exertions; but l'or the want of those exertions which the nature of his office required, by barely having the execution put into his hands. If the plaintiff had sought to have recovered for any loss sustained by want of extraordinary exertions, which the peculiar circumstances of the case might have required, then those circumstances should have been communicated to the sheriff, with a request to proceed immediately in the execution of the process. So that take it either way, that the constable’s executions had gained the preference, or that they liad not, I think the sheriff was guilty of neglect, and is therefore liable. This opinion is founded on the facts declared on the record. It is not intended t© preclude the sheriff from showing facts or circumstances why he did not go sooner to the debtor’s house, or any other fact amounting to a justification. I simply mean to say, that omitting from the 7th of October to the 1st of November to make an attempt to levy an execution, returnable on the 3d Monday of November, unaccounted for, is in law neglect, and that the person who has sustained a damage thereby may recover. I therefore concur in the opinion of my brother IIaxi, that a new trial should he granted.
The Chief Justice concurring also: by the Court,
Judgment reversed.