3 Ala. 254 | Ala. | 1841
The only error complained of, is the issuance of the second execution, after the death of the defendant, and before the return of the first execution. Both the executions were issued before the first return day after the judgment, the last being after the death of the defendant. It is no objection to the second writ of fieri facias, that one had previously issued, as it is expressly authorised by our statute: “ where any execution shall issue, and the party at whose suit the same is issued, shall afterwards desire to take out another writ of execution at his own proper cost and charges, the clerk may issue the same, if the first writ be not returned and executed.” Aik. Dig. 159, sec. 2.
The question, whether such execution could issue after the death of the defendant, is one of more difficulty. It has been decided by this Court, after a most elaborate examination of the question in the case of Horn and Collingsworth, 4 Stew. and Porter, 237, that when an execution had issued against a defendant in his life time, that subsequent execution might be issued after his death, to preserve the lie But in this case, no such necessity execution was issued before the retail then, an orignal execution, which to issue, after the death of the defenda|!tf without the judgment. The Court therefore %r^'ilplrverruli£ motion of the plaintiff in error, and its reversed, and the cause remanded.
