sheriff who made the levy received his appointment before the levy was made, and then was administrator. These circumstances appearing on the trial, the court charged the jury that the execution having issued after the death of Hanby, it was void.

The property in question consisted of two slaves. Under the charge given, the jury found the property not subject to the execution. This charge is assigned as the cause of error.

The case presents the questions: 1. Was a revival of the judgment necessary under the circumstances of the case, by a scire facias against the administrator? 2. If it was, had the claimant of the property, he being neither party nor privy to the judgment, a right to claim advantage of the failure to revive?

A statute exists in this state, relative to liens by execution; but which being of a date subsequent to these proceedings, may be left entirely out of view, in the consideration of this case. The questions must be determined with reference to the common law, and the statute of 1826, entitled "an act concerning executions, and for the relief of insolvent debtors," the eighth section of which provides, "that no writ of fieri facias, or other writ of execution, shall bind the property of the goods against which such writ is sued forth, but from the time that such writ shall be delivered to the sheriff, under-sheriff, coroner, or other officer to be executed; and for the better manifestation of such time, such sheriff, coroner, or other officer, his deputy or agent, shall upon the receipt of any such writ, without fee for doing the same, indorse upon the back thereof the day of the month and the year when he received the same," etc.

The distinction has been assumed in argument, and in the opinion of the circuit court, between void and voidable process, that the former may be resisted and set aside by any person against whom it is attempted to be used; the latter only by parties and privies; and it is contended that this fi. fa. was void, consequently that the claimant of the property could successfully resist its supposed lien on that ground.

It is conceded that executions, by the common law, bound the goods and chattels of the defendant from their teste; but by the statute referred to, the lien attaches only upon the delivery of the execution to the proper officer for collection. In the case of Bragner v. Langmead, 7 T. R. 20, the court of king's bench held, pursuant to the current English doctrine, that a judgment signed in any part of the term, or the subsequent vacation, relates back to the first day of the term, notwithstanding the death of the

defendant before judgment actually signed; and an execution might be taken out upon it, tested the first day of the term. Lord Kenyon, in delivering the opinion, said they were bound by the current of authorities, all speaking the same language; that in every case which had occurred it had been held "that the execution may relate back to the first day of the term, though the defendant died before execution actually taken out, unless something be done in the interim to show an incongruity in the proceedings, as was done in the case of Heapy v. Parris.' In explaining the incongruity in the case last mentioned, and in reconciling it with the principles by which that court had uniformly been governed, he said: "There the plaintiff did not sue out execution tested on a day prior to the death of the defendant, as he might perhaps have done, so that it might have legal relation; but the execution, sued out after the death, bore teste on a day posterior to the defendant's death, and consequently that the execution was irregular."

The same doctrine is maintained in Com. Dig., vol. 4, p. 247, tit. Executions, D. 2. There reference is also made to the English statute (29 Car. II. 3), "that no scire facias, or other writ of execution, shall bind the property of the goods, but from the time such writ shall be delivered to the sheriff, etc., to be executed; who, on the receipt of it, shall indorse the day of his receiving the same." It is also said, 4 Com. Dig. 248, if a fieri facias be tested before the death of the defendant, and delivered to the sheriff, after his death, it may be executed upon goods in the hands of the executor or administrator.

Again (29 Car. II. 250), if execution be taken out after the death of the defendant against his executor or administrator, without a scire facias, it is void. These principles rest on the authority of early English cases; and are not considered, when properly understood, irreconcilable with each other, or with the modern doctrine. The correct rule of the common law is believed to be that an execution, bearing a regular date, anterior to the death of the defendant (though the date be by relation back), may be received by the sheriff, after the death of the defendant, levied on the goods of the estate, and the same may be legally sold, without making the personal representative a party: 6 Bac. Abr. 114. But, if such representative be made a party to the execution, without a revival of the judgment, by a scire facias against him (as in the last case referred to in Comyn), the process may be void, when it would have been

1. 6 T. R. 368.

regular, had it been taken only against the goods of the deceased, as though he had been living.

By another statute, in force in this state, it is directed that all writs, returnable to any court of record, shall bear teste on the day on which the same shall be issued: Aik. Dig. 278. This requisition is conceived to apply to executions, as well as to other process, consequently the doctrine of relation to the previous term, or the first day of the term, does not apply to our jurisprudence.

But whether this fiction can have any effect as respects the lien of the execution, or the legality of the process, may well be questioned. It is a question, however, which can have no material influence in this case, inasmuch as the original fi. fa. bore date long before the death of the defendant, and the pluries fi. fa., by virtue of which the levy was made, bore date long after the death. The material inquiry, then, is, whether, after execution had commenced, by the regular issuance and return of nulla bona on the original and alias, before the death of the defendant, the plaintiff had a right to continue to sue out further writs of execution, after the return of the former, without a revival of the judgment against the administrator. It has been shown that the lien of executions on the goods and chattels of defendants is substantially the same under the English and Alabama statutes. The date of the lien under each relates to the time of the delivery of the execution to the proper officer to be executed.

The principle may be assumed, for it is not understood to be contested, that if execution be not actually sued out within a year and a day after the judgment has been rendered, or if not sued out before the death of the defendant, in either case it is irregular to take it out without a previous revival of the judgment by scire facias, and in the latter case the revival must be against the executor or administrator. But it does not follow that in the event of the death of a defendant after execution has begun, such revival of the judgment is necessary. The necessity can only exist on the principle that the alias or pluries fi. fa., though regularly continued, does not retain the lien on the defendant's property from the time of the delivery of the first execution to the officer. This would deny them any legality or virtue derived by relation to the original fi. fa., which, and also the alias in this case, were issued and deliv ered in the life-time of the defendant.

The case of Brown v. Gilliland, 3 Desau. 539, involved this

doctrine. Brown, as executor, had made sale at auction of slaves belonging to the estate of his testator. There were at the time executions in the sheriff's office against the testator, which remained unsatisfied, and on which there had been returns of nulla bona. The purchaser refused to pay the purchase money, unless it should be applied to the discharge of the executions, so as to secure his title. The executor contended the negroes were not bound by the executions, because they had been acquired by the testator after the executions had been returned.

The suit in chancery was instituted for the guidance and safety of the parties, and was considered amicable. The question then was, whether the lien of an execution was confined to such goods only as belonged to the debtor at the time when the writ was lodged, or whether it extended to goods acquired by him afterwards?

Judge Thompson, in the circuit court, decreed a specific execution of the contract. He said, "he considered such an execution precisely as if it never had issued, inasmuch as there were no effects on which it could have attached, and of course could have no binding efficacy." That "the execution was defunct previous to the acquisition of the property; and it would be in vain to say a non-existing thing can possess existing powers." On appeal, however, to the revising tribunal, this doctrine was overruled, and the decree reversed, on the ground that the executions bound the property, and that a good title could not be made to the purchaser. In this opinion the court, consisting of four judges, was unanimous. The reasoning of the court was, "that every debt, as soon as contracted, vests in the creditor a right to be paid out of any part of the debtor's estate; and while only a chose in action, it has an inchoate lien on all his property, whether acquired before or after the contract. When sued, therefore, and the right is consummated by a judgment and execution, the general lien of both becomes perfect, and should continue to charge, not only the existing property of the debtor, but also to attach on all his future acquisitions. If, indeed (say they), an execution becomes dormant, it must be revived by a scire facias before it can have active operation; but its binding quality, like that of a judgment, continues until it is satisfied, or until length of time furnishes sufficient ground for presuming satisfaction.

It is, however, necessary to observe that the question in this case is not whether the defendant's property was bound from

the delivery of the original fi. fa. to the sheriff to be executed; or whether it was from the delivery of the pluries on which the levy was made. Indeed, it does not appear that the difference in the lien, whether from the one day or the other, was considered in the least material. But the question is, whether the pluries fi. fa. was void, and subject to resistance by a third person, whose rights were incidentally involved? On the former question the case of Brown v. Gilliland is an authority sustaining the lien from the earliest date; and this doctrine I consider best supported by reason and authority. There are, however, some contrary decisions in respect to contests arising between different plaintiffs in execution. In the case of Tabb v. Harris, 4 Bibb, 29 [7 Am. Dec. 732], the sheriff had two writs of fi. fa. in favor of different plaintiffs, against the same defendant. The execution last received was in favor of one who had previously had other writs issued on his judgment, but which had been returned nulla bona. Money being now made on the executions, but not sufficient to satisfy both, the question arose, which should be preferred. The court ruled that where several executions issue against the same defendant, the sheriff is bound to satisfy that exection first which is first delivered to him. That as between plaintiffs in execution, a former execution not levied and returned does not create a lien to the exclusion of the second creditor, who delivers his execution when the sheriff had no other against the debtor.

That court seems to have recognized a distinction in respect to liens by executions, where the contest is between the different plaintiffs therein, and where it is between one of them, and a purchaser from the defendant himself. In the former case they deny any relation back to the delivery of the original fi. fa. as directed by statute, or to the teste, according to the doctrine of the common law. They say "the common law, regardful of the interest of plaintiffs, and to preserve it against the fraudulent acts of defendants, in alienating the goods, made writs of execution, have relation to their teste, and bind the estate of defendants from that time; so that if they should sell their goods thereafter they might be taken in execution in whose hands they might come. But, as between plaintiffs in execution, the common law knew no partiality, and created no lien in favor of one in prejudice to that of another."

I can not perceive the force of these remarks, or the virtue of the impartiality here inculcated. There would appear to be no sufficient reason why a bona fide purchaser from the defend