| Ill. | May 14, 1890
delivered the" opinion of the Court:
Admitting that under the special replication by plaintiff, and the issue joined thereon, trespass can be maintained, the defendants clearly had the right to have that issue submitted to the jury, under proper instructions from the court. In other words, the facts set up in the replication in bar of defendants’ special plea are not so far conceded by defendants as to justify the court in directing the jury to find them guilty on that issue. The instruction was no doubt based upon the theory, that under the facts stated in the special pleas, the execution under which the sheriff, Hanchett, claimed to have taken possession ■of the horse was not entitled to priority over the levy of the attachment writ, and the Appellate Court has so held.
It is conceded by all parties that the Kretzinger execution ■came to the hands of the sheriff prior to the issuing of the attachment. But it is also admitted that the attachment was first levied, and that the sheriff, after such levy, seized and sold the horse under his execution. Under these conceded facts the question arises, whether or not, under the law of this State, an execution coming to the hands of an officer authorized to execute the same, becomes a lien on the personal property of the defendant therein from the date of its receipt, as against a subsequent writ issuing from a different court and actually levied by a different officer, so as to entitle the holder of the first writ, before sale, to seize the property and take it from the second officer.
Section 9, chapter 11, of our statute, entitled “Judgments, Decrees and Executions,” provides : “No execution shall bind the goods and chattels of the person against whom it is issued until it is delivered to the sheriff, or other proper officer, to be executed, and for the better manifestation of the time, the sheriff or other officer shall, on the receipt of such writ,-' indorse upon the.back thereof the day of the month, and year, and hour when he received the same.”
It is not denied that under this section, where several writs of fieri facias come to the hands of the same officer, they must be satisfied in the order in which they were received; but appellee insists that that rule has no application to the facts of this case, and he maintains that where severál writs against the same defendant, are in the hands of different officers, the officer who first seizes property under his writ, by levy, obtains priority for its satisfaction out of the property levied upon, notwithstanding other writs may have been received by other officers prior to the time his came to hand. However firmly the rule contended for may be established in other jurisdictions, it has never been adopted in this State. Directly the contrary was decided by this court in Rogers v. Dickey, 1 Gilm. 636. It was there said: “The doctrine is therefore well settled in England,—which this court is inclined to adopt,—that where two or more writs of fi. fa. are delivered at different times, either to the same or different officers, and no sale is actually made of the defendant’s goods, the execution first delivered must have the priority, though the first seizure may have been made on a subsequent execution.”
It is not denied that this case is an authority directly against the contention of appellee, but it is said it did not involve this question, and therefore the decision is extra-judicial. It is true, in that case the writ under which the constable seized the property of Betts, defendant in the two writs, was a distress warrant issued by a landlord. The statute then in force authorizing a distress for rent, as stated in the opinion by Young, J., made it necessary for the person to whom the rent was due, to call to his assistance the sheriff, or some constable of the county, when he went to seize the goods of his tenant, and required of him, before the property so seized could be sold, to obtain a judgment against the tenant.
We need not stop to inquire whether it was absolutely necessary, under the facts of that case, to treat the writ under which the goods were seized by the constable, as having all the force and effect of a fi. fa. It is perhaps true that the decision could have been placed on a different ground, and the decision of the question here involved avoided. There can be no doubt, however, from the authorities cited in the briefs of counsel, and the opinion rendered, that the very eminent counsel on either side, as well as the court, treated the issue then before the court precisely as it must have been treated had the constable held a writ of ji. fa. instead of a distress warrant, and the whole case made to turn upon the decision of this identical question. That decision has never been modified, or even criticised, so far as we know, and has been understood by the profession as settling the rights of parties under executions issued from the various courts of this State, whether in the hands of the same or different officers. If, therefore, jt be admitted that the weight of authority is against it, no such convincing reasons have been adduced in support of the contrary rule as would justify our overruling it at this late day. Evils anticipated as a result of adhering to it have not been experienced in the past, and there is no substantial ground for fearing them in the future.
We are of the opinion, then, that the execution in the hands of Hanchett, sheriff, became a prior lien upon all the personal property of Drummond in Cook county, and that he was guilty of no wrong in" levying upon and selling the horse in question merely because a junior attachment writ had been levied, no sale having been made.
There was no error in overruling the motion to dismiss the suit on the stipulation of Ives. The action was for the benefit of the plaintiffs in the attachment suit. The court, in refusing to allow Ives to control it to their prejudice, committed no error. In the view here expressed, other points raised are unimportant.
The judgments of the Appellate and Superior Courts are reversed, and the cause remanded to the latter.
Judgment reversed.