*63 Curia-, per
Wardlaw, J.The case of Blair and Alexander vs. Horseby, Dud. 357, may be authority for maintaining that a plaintiff in a circuit court execution, waiving his right to pursue property of the defendant, which was bound by the lien of his execution, and has been sold by a constable under a magistrate’s execution, may, after notice, recover from the constable, the proceeds of the sale in his hands. But the general lien of an execution cannot give to the sheriff a right so to recover. After levy, the sheriff acquires an interest in the specific property levied upon, which will sustain his action of trover or trespass against a constable or other person. This interest would, in a contest between the sheriff and a constable, who had levied before the sheriff’s levy, but after the lien of the execution in the sheriff’s hands attached, have relation back to the commencement of the lien, so as to take the property from the constable, or a purchaser from him. But it would hardly be permissible, for a sheriff who had actually levied before the constable’s sale, to waive the right and duty of pursuing the property, and to claim the proceeds of that sale. However that might be, it is plain that the sheriff here cannot claim the proceeds of the constable’s sale, because he had made no levy.
The motion is therefore dismissed.
Richardson, O’Neall, Evans, Butler and Frost, JJ. concurred.