13 N.C. 354 | N.C. | 1830
FROM CRAVEN.
Although my opinion would have coincided with that of the dissenting judge, in Green v. Johnson,
The fact that Palmer Co.'s execution purports on its face to be analias makes no difference. It would; if the first had been bona fide acted on; for if the party does all he can, issues his execution, but cannot find property to seize or bidders to buy, he is not to blame. In that case all the subsequent writs relate to the first. Such has been the facts in all the cases heretofore in this Court. If in any of them it had appeared that the original or any intermediate execution had not been delivered, the lien would not have been carried back beyond that one on which the party last proceeded. In plain terms, priority of judgment or execution shall give no preference where the plaintiff takes no steps effectually to enforce them, or after issuing execution arrests by his own act the progress of the sheriff in the discharge of his duty. Palmer Co. are, therefore, only entitled to a pro rata application of the money.
The case is decided entirely on the return of the sheriff; for the makes *228 it at his peril, and if false, we do not intend to preclude the parties from their redress. But if we felt at liberty to look into affidavits, our views of the law would only be sustained by the facts disclosed in this case. The plaintiff's attorney explicitly states that the agreement between him and Harvey was that he might take out execution, but not serve it before the next Court. What is this but a bargain between the debtor and creditor to create a lien, but not to use it? This would suit Harvey, if it remained so forever. He keeps the undisturbed possession, and has the full enjoyment of his property. If this were permitted, undue preferences would be constantly given for the sake of the debtor's ease, and just creditors defeated. Retaining (359) the execution is conclusive of the intent; and the evidence here expressly shows that the general inference of law is in this case justified by the fact.
PER CURIAM. Affirmed.
Cited: Arrington v. Sledge, post, 360; Dawson v. Shepherd,