27 Ala. 311 | Ala. | 1855
The act of the 17th Eebruary, 1854, (Acts 1853-4, p. 92, § 10) regulating the practice of the City and Circuit Courts of Mobile county, provides, that the lien acquired by any execution from either of said courts shall not be lost, if an execution issue to the sheriff “ without interval of more than ninety days.” In the present case, the original execution was returned on the 14th April, 1854, and an alias was issued on the 14th July, 1854. Assuming, for the present, that it came to the hands of the sheriff on the same day on which it issued, the question is, whether the lien was lost; or, in other words, whether according to the rules of law, there is an interval of more than ninety days between the 14th of April and the 14th of July.
The rule is now well settled, that in the computation of time from an act done, the day of performance is to be excluded.— Bigelow v. Wilson, 1 Pick. 485 ; Judd v. Fulton, 10 Barb. 117. If, therefore, the law had required the issue of the alias execution within ninety days, in order to preserve the lien, it
We may remark, however, that the same rule does not apply to statutes which, as between different acts, give a prefer, ence or priority to the one which is first done; and in such cases, courts will regard the fractions of a day.
It is urged that the record does not show that the execution of the appellee, although issued on the Í4th July, came to the hands of the sheriff on that day. But we think this sufficiently appears from the statement in the bill of exceptions, that on the day on which the sheriff received the alias execution, he required a bond of indemnity ; which is set out in the record, — bears date on the same" day with the fi. fa., and recites that it was in his hands when the bond was executed.
Judgment affirmed.