8 Ala. 529 | Ala. | 1845
The principle settled in the case of Wood v. Gary, 5 Ala. Rep. 52, is decisive of this case. The facts of that case were, that a plaintiff in execution, a short time before the return day of the execution, directed the sheriff to return it, but without intention to favor the defendant in execution. The execution was not re-issued, until after one upon a younger judgment had been issued, and had come to the sheriff's hands, against the same defendant. This Court held, that the order to return the execution under the facts of the case, did not render it constructively fraudulent. And that the alias being issued before another term had elapsed, the lien of the original execution was preserved.
The facts of this case are almost identical with that. We may lay out of view the order of the board of directors, because it authorized thé suspension of the execution upon a condition which was never complied with, and because in point of fact the return was directed to be made by the attorney of the Bank, previous to any action of the board upon the subject, both being ignorant of the action of the other. This return it appears was directed to be made in good faith, because there was not time to make the money, and not to favor the defendant. The case is then to be considered, as if the execution had been returned by the sheriff, without any order from the bank or its attorney. The only remaining fact is, that the alias executions did not come to the sheriff’s hands, until a few days after the execution of the plaintiff was received by the sheriff. But as a term had not intervened, the alias connected itself with the previous executions, and continued
Why the executions of the Bank were not sooner re-issued, we are not informed. There is not however any fact in the case which would authorize the presumption that they were withheld by the direction of the Bank, as the condition upon which the Bank had agreed to a suspension had never been complied with. Whether, if, during this interval, the execution of the plaintiff had been levied, and the property sold, the lien of the Bank would not have been lost, we need not inquire.
The facts present merely the case of an omission to cause the executions to be re-issued for about three months, but as it does not appear that this omission was designed to favor the defendant, and as the delay could not by possibility affect injuriously any other creditor of the defendant, it cannot have the effect to render the executions constructively fraudulent, and give the preference to a junior execution creditor.
Our opinion therefore is, that the Circuit Court decided correctly upon the facts in evidence, and its judgment is affirmed.
