Hill v. Slaughter

7 Ala. 632 | Ala. | 1845

COLLIER, C. J.

— In Brown & Milton v. Baker, Sprouls & Co. 9 Porter’s Rep. 503, we held that it was uot permissible for the sheriff of one county to transfer to the sheriff of another a writ of fieri facias which he had received and acted on. The statute making it the duty of a sheriff, in whose hands either mesne or final process is placed for service, to execute and return the same, or to return it if it cannot be executed, he cannot excuse a compliance with this requirement, by placing a fieri facias with which he was charged, in the hands of the -sheriff of some other county. If the plaintiff desires an execution to be issued elsewhere, he should cause that already out to be returned no property found, or procure another at his own expense.

In Pond v. Griffin, 1 Ala. Rep. N. S. 678, we determined that a fieri facias only binds the goods and chattels of the defendant in the particular county to which it issues. The Court of Appeals of Kentucky, upon a statute similar to ours, made the same decision, adding, that when the lien once attached, it was not lost by the temporary removal of the property. [Claggett v. Foree, 1 Dana’s Rep. 428.]

The second section of the act of 1828, (Clay’s Dig.309, § 43,) after adjusting the liens between contending executions, proceeds thus, “ but if a term shall not have elapsed, and the alias shall be delivered to the sheriff before the sale of property, under a junior execution in favor of another creditor, the lien shall continue, notwithstanding the alias may not have been delivered until after such junior execution; but if such alias shall not be delivered until after the sale under such junior-execution, the lien of the latter shall prevail.”

That the delivery of the executions in favor of Bailey and others, to the sheriff of Macon, created a lien upon the slave, because he was within the county, has not been controverted. This lien however, became inoperative, though not lost, by the removal of fathe slave to Tallapoosa, and it would have been competent for the plaintiffs in these executions to have reasserted their liens in that county. This they attempted to do by the transfer of their executions, with notices to the sheriff, that they claimed the proceeds of the sale. That this was an irregular course of procedure, and could not create or revive a lien, the vitality of which was suspended, we think is,, directly shown by the case cited from 9th Porter. The spirit of the statute referred to, shows the intention of the legislature to give to a junior execution, the priority, where the plaintiff having the older one has not asserted a lien, until a sale has been made of property levied on, under the authority of the former.

If Bailey and others, having the elder f. fas. would have prevented the plaintiffs from appropriating the money to his execution,they should have caused executions to be issued and placed in the hands of the defendant, before a sale of the slave took place. This not being done, their suspended liens were never made operative again ; consequently.the plaintiff is entitled to the money in the sheriff’s hands. The judgment is therefore reversed and the cause remanded.