| Ala. | Jun 15, 1845
The motion against the defendant attributes neglect to the sheriff for failing to make the money on the plaintiff’s execution, issued on the 8th June, 1844, and is intended to test the question of priority between that and the fieri fa-cias at the suit of Dunn, Mcllvain & Brownlee, which was simultaneously levied. It is conceded that the latter caused an execution to be placed in the sheriff’s hands one year previous to the time when the first execution upon the plaintiff’s judgment, issued; but it is insisted, that the judgment in favor of Messrs, D. Mcl. & B., has been satisfied by the money advanced by Lockhart; that the levy of their alias fi. fa. on the twenty slaves was a satisfaction thereof; that their pluries execution became dormant, and was fraudulently kept open ; and lastly, the lien of the plaintiff’sfi.fa. which was levied simultaneously with it, should not be postponed by it.
True, an attorney at law may not have the power to assign a judgment after it is satisfied to one who became liable to its payment, (6 Ala. Rep. 432,) yet if a person on whom no duty of that kind rests, thinks proper to advance his money for the accommodation of either plaintiff or defendant, it. is difficult to conceive of an objection to keeping the judgment open for his re-im-bursement. Such an advance cannot be regarded as a payment, but rather as a mere loan of money, with the agreement that the
The first execution issued upon the judgment under which Lockhart’s claims was levied and returned without a sale by the order of the plaintiff therein ; the second was levied on the twenty slaves, delivery bonds given and forfeited; under the third, which was issued on the 5th of December, 1843, twelve of the slaves seized under the second were levied on and sold; the remaining eight had not been taken possession of by the sheriff, but still remained in the hands of the defendants in execution.
No question can arise in this case, whether the first execution of Messrs. D., Mcl. & B. was dormant; for the first fi. fa. at the suit of the plaintiffs, did not go into the sheriffs hands until nine days after their plunes fi. fa. had been delivered. Now although it is not explicitly stated, yet the fair inference from the entire case, is, that the property levied on by the first execution was either returned or taken possession of by the defendants, to whom it belonged. As to the second, it is shown that they were returned upon the delivery bonds being given.
It is laid down, that if the sheriff take goods in execution, under afi. fa. whether he shall sell them or not, the defendant shall not be liable to a second execution. But where the goods levied on are removed by the defendant, or by his permission, or connivance, or they are delivered to him upon giving a forthcoming bond, which he forfeits, so that they cannot be sold, the plaintiff may have a new execution. [9 Porter’s Rep. 201; 4 Ala. 427" court="Ala." date_filed="1842-06-15" href="https://app.midpage.ai/document/hopkins-v-land-6501834?utm_source=webapp" opinion_id="6501834">4 Ala. Rep. 427.] These citations are conclusive to show, that the levy of the second fi. fa. and proceedings consequent thereon, do not amount to a satisfaction in law.
In respect to the third execution of Messrs. D., Mcl. & B., it should have been levied upon a sufficiency of property to satisfy
It is insisted that Lockhart’s answer to the sheriff when asked if he must sell enough property to satisfy the execution in which he was interested, that he would do nothing that could affect his lien, nor must, (the sheriff,) do any thing that would cause him to lose it; but if he failed to make the money by a sale of property, he would not rule him for the failure, made the third fi.fa. of D. Mcl. & B. dormant, and inoperative. The authorities very generally concur, that in order to make an execution dormant, and constructively fraudulent, against one of a junior date, there must be an active interference on the part of the plaintiff, or some person authorised to represent him. 'A mere acquiesénce in the neglect of the sheriff cannot have that effect. [See Wood v. Gary, et al. 5 Ala. 43" court="Ala." date_filed="1843-01-15" href="https://app.midpage.ai/document/wood-v-gary-6501908?utm_source=webapp" opinion_id="6501908">5 Ala. Rep. 43, 55, and authorities there cited.]
Lockhart did not authorize the sheriff not to proceed upon the execution under which he claims; so far from giving such instructions, he peremptorily refused to do any thing that could affect his lien, and prohibited the sheriff from so acting as to prejudice it. The remark that he should not rule him if the money was not made by the levy on, and sale of property, amounted to nothing more than this, that he would pretermit a remedy against the sheriff, which he was not bound to pursue, in order to the continuance of his lien against a junior execution creditor. This afforded no warrant to the sheriff for the failure to enforce a collection of the third fi. fa. of Messrs. D., Mcl. & B. His omission may perhaps have been influenced by what was said by Lockhart in the conversation referred to.- Yet if the latter did not intend to assent to and approve the delay, with the view of aiding the defendants in execution, or some of them, and thus by the effect of his paramount lien secure their property from junior
This view disposes of the entire case, and the consequence is, that the judgment is affirmed.