Patton v. Hamner, 33 Ala. 307

Patton v. Hamner

33 Ala. 307 | Ala. | 1858

B.ICE, C. J.—

The averment added to the second plea, after it was remanded, made the plea good.-—Patton v. Hamner, 28 Ala. 618.

[2.] The claim bond, required by the statute, is intended to furnish an additional security to the creditor, and cannot be so construed as to work injury to him. Its forfeiture may give him rights, but cannot deprive him of the preexisting right to sue out an alms or fluries execution on his original judgment. The doctrine, that on the forfeiture of such bond, the original judgment is merged or satisfied, or in any way impaired in its force or efficacy, does not obtain in this State.-—Hopkins v. Land, 4 Ala. 427; Caperton v. Martin, 5 Ala. 217; Curry v. Bank, 13 Ala. 304; Bradford v. Dawson, 2 Ala. 203; Fryer v. Dennis, 2 Ala. 144; Kemp v. Porter, 7 Ala. 138; Langdon v. Brumby, 7 Ala. 53.

*313[3.] Although the replications have been somewhat changed since the case was formerly here, yet they are still bad under the law as laid down in the former opinion. “ Admitting the truth of every fact stated in any of them, the executions, under which the sheriff sold the slave in controversy, were not void, and he had authority to make the sale under them. He was not bound to recognize any right asserted by the appellant under the agreement mentioned in the replications,” nor to constitute himself a judge, to determine the questions of conflicting rights and interests which arose out of that agreement; nor to disobey the mandate of the executions, because of a tender, which depended for its efficacy entirely upon the validity and effect of the alleged agreement.—See Patton v. Hamner, supra, and authorities there cited.

There is no error, and the judgment is affirmed.

Stone, J., not sitting.