Caperton v. Martin

5 Ala. 217 | Ala. | 1843

GOLDTHWAITE, J.

1. We held in the case of Hopkins v. Land, [4 Ala. Rep.N. S. 427] that a forthcoming bond was neither a satisfaction nor a discharge of the judgment, but that the plaintiff might elect after the forfeiture of such a bond, to proceed upon it, or sue out an alias execution. And in Campbell v. Spence, [4 Ala. Rep. N. S. 543,] we considered, that the taking of such a bond was not a discharge of the liens acquired by a judgment. These decisions, when connected with the principle settled in Collingsworthy. Horn, [4 S. & P. 237,] are conclusive of all but one of the questions raised here.

In Collingsworth v. Horn, the facts were precisely similar to those now before us, except that here, there was a partial levy; and the subsequent execution is not in terms, an alias, inasmuch as it issues on a forthcoming bond. The question then is, whether these circumstances make such a distinction between the cases as to render the execution inoperative. In our opinion, they do not. Under the principle settled in Collingsworth v. Horn, tho plaintiff, if no levy whatever had been made, could have sued out an alias execution, and then the lien of the original execution would have been continued. Or, under the principle settled in Hopkins v. Land, he might have abandoned his rights under the bond, and have sued out an alias execution. In either case, the right of the plaintiff would have been preferred to that of the administrator.

It certainly is a novel proposition that a matter evidently intended to furnish an additional security to the creditor, should be so construed as to work him an injury; and yet, such would be the case here, upon the insolvency of the surety on the bond, if the law is, as supposed to bo by the counsel for tho plaintiff in error. Conceding, however, that the surety is solvent, there is no reason why the creditor should be forced to pursue him, when there are effects of the principal debtor, bound by the previous lien of the execution. As the creditor could have sued out an alias execution, which would have the effect to continue the lien, even if no levy whatever had been made, we think the law gives the same effect as between the debtor or his personal representative and the creditor, to that subsequently sued out on the forthcoming bond.

2, It appears that Norwood’s estate was represented as insolvent by his administrator, previous to the levy; but the coroner was not bound to take notice of that fact, even if it would have the effect to divest the lien of the execution. My own opinion is, that the statute respecting insolvent estates, [Digest 151, § 2,] was intended to provide for the pro rata division of all the effects between the creditors, and that all inchoate or imperfect liens, arising merely by operation of lav/, are destroyed by it; and such was considered to be its effect upon a lien created by an attachment. [Hale v. Cummings, 3 Ala. Rep. N. S. 398.] But on this point, the majority of the court think otherwise, and hold that where execution upon a judgment is begun, the lien upon the personal estate is fixed and absolute, and is not destroyed by the subsequent death and insolvency of the defendant. They distinguish this from an attachment, as there the plaintiff has no right to subject the property attached, to sale, until a judgment is obtained, and this being prevented by the statute the lien is at an end.

Our conclusion is, that there is no error in the record, and the judgment is affirmed.