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ant, after his property has become bound by an execution, should occupy a less favorable position than that of a plaintiff in a subsequent execution placed in the hands of the sheriff after the property had become so bound. In a subsequent case in the same court, Daniel v. Cochran's Adm’rs, 4 Bibb, 533, the question was similar to that in the former. There the same court said: “We can perceive no principle upon which the lien created by an execution can be continued in virtue thereof after its return day.” But they add, “the lien indeed might be continued at common law, by continuing the executions; and may, since the statute, by delivering a new execution into the lands of the sheriff at the same time the former is returned; or rather, we ought in strict propriety to say, that an uninterrupted succession of liens might be thus kept up."
These latter positions I construe into an abandonment of so much of the principle of the former decision as denied the existence of prior liens as between executions. The latter decision admits that the defendant's property is bound from the delivery of the first fi. fa., and that the lien may be transferred from a prior to a subsequent writ; that it may be continued at common law by the renewal of the executions in due time; that in this way, an uninterrupted succession of liens may be preserved.
The return of one fi. fa., and the issuance and delivery of another on the same judgment, are acts falling within the official duties of the clerk and sheriff; why should the lapse of a few days at the return term, when these acts must be done, create a forfeiture of the lien ? To prevent it, shall the clerk, in anticipation of a return of nulla bona, have an alias or pluries ready to exchange with the sheriff at the moment he makes his return; or shall the sheriff show the execution containing the return intended to be made, and stand by holding the execution until the clerk (laying aside all other business) can prepare the alias, so that there shall be no intervening space between the actual return of one, and receipt of the other? I think it more just and rational, and the course best supported by authority, to require only that the original shall be returned to the proper term; then, as soon as may be, consistently with his other duties, the clerk shall issue the alias or pluries.
If the plaintiff does not interfere to the contrary (but which he
may do at his peril), and if the renewal be made in a reasonable time, the lien shall be transferred from the original to the alias and pluries, as a continued execution on the same judg
ment, and thereby be preserved. The principle of the decision, in the case of Eppes v. Randolph, 2 Call, 125, which has been cited to the contrary, does not affect this question.
But I now recur to the true question, whether or not the pluries fi. fa. was void, and subject to resistance from a third person? Let it be conceded for the present that in consequence of the death of the defendant, there was the same necessity for a renewal of the judgment by scire facias, that there is in cases where no execution has issued within a year and a day after judgment, then what would be the effect? In Jackson v. Delancy, 13 Johns. 537 [7 Am. Dec. 403], it was held that a scire facias, to revive a judgment, irregularly issued; or an execution issued after a year and a day, without a.scire facias, is voidable only, and can not be called in question, in a collateral action, so as to defeat the title of a purchaser under the execution; nor can such execution be avoided, after the lapse of twenty years, even on a direct application for that purpose: 3 Cai. 270; 8 Johns. 361; 4 Camp. 48; 2 Burr. 1188; 7 Johns. 556; 2 Bay, 338.
The remedy against an execution, merely voidable for want of a renewal of the judgment by scire facias, must be the same, whether the necessity for the renewal arose from the death of a party, or from lapse of time after judgment obtained. There would appear to be no satisfactory reason for any difference. If the defendant in execution, or his representative, chooses to acquiesce in the irregularity because the effect is substantially the same, and costs are thereby avoided, or for any other cause; and if the effect of the judgment or execution, with or without a renewal of the former, be the same with respect to the rights of third persons, surely there can be no reason for permitting them to delay and hinder the execution for any matter exclusively concerning the parties to the writ, and entirely indifferent to those claiming advantage of the irregularity.
Should a case occur where rights have accrued to third persons, which would be affected by a lien existing from the date of the original fi. fa., but not from that of the alias or pluries, and the lien has, by law, been forfeited or discharged by any subsequent event, and which would appear from the writs, if regular, then I admit that such third persons (the claimant of property, for instance) may insist on the forfeiture or discharge, and demand the same substantive rights as if the proceedings had been regular—that, in such case, if the claimant's title to the property accrued subsequeut to the delivery of the original fi. fa., but prior to that of the alias or pluries; and the
lien had been lost by the death of the defendant, or failure to revive the judgment by scire facias, or to renew the writs of execution regularly, from term to term, so as to preserve the lien from the first to the last, the claimant would have been ens titled to the benefit thereof; and the court should have instructed the jury that the plaintiff's lien related only to the date of the delivery of the alias or pluries (as the case may have been), not to the delivery of the original.
If, by reason of the death of the defendant, after judgment, and before the issuance of the original fi. fa., it had become necessary to revive the judgment, making the personal representative a party, and this had not been done, the effect would have been different; then, the property being free from any lien or incumbrance, the law would have vested the special title in the executor or administrator, and an execution against the decedent could not reach the property.
But, as already remarked, such are not the facts of this case. The judgment had been obtained, and the original and subsequent fi. fa. had been issued and placed in the hands of the sheriff, to be executed in the life-time of Hanby, the defendant; and the executions bad been regularly issued, and returned nulla bona, without any dormant internal from the date of the judgment, up to the time of this levy, by means whereof the lien was continued, and the title to the property prevented from vesting in the personal representative, so that it was unnecessary to have made him a party.
Nor does it appear that the claimant's title is better or different now from what it was when the original fi. fa. was delivered to the sheriff. Therefore, without deciding whether the execution under which the levy was made was strictly regular, or merely voidable (a question immaterial to this case), we are of opinion it was not void; consequently, that the claimant of the property was not entitled to any advantage from the supposed want of a revival of the judgment; and that the contrary decision of the circuit court was erroneous, for which the judgment must be reversed and the cause remanded.
As an authority to the effect that where a fieri facias has issued during the life of the defendant, that though his death occurs before the return of the writ, yet withuut a revival of the judgment against his representatives, it is regular to issue an alias writ of execution, provided it be done during the same term in which the original was returned, this case is cited in Luoas v. Price, 4 Ala. 672; Mansony v. United States Bank, Id. 752; Boyd v. Dennis, 6 Id. 55; Stewart v. Nuckols, 15 Id. 231; Collier v. Windham, 27 Id. 291.
But at the same time the operation of the rule is restricted to personalty. For the reason of the rule is given as this, that where executions issue as above set forth, the lien of the original writ is transferred to the alias, and so the property in the hands of the personal representative of the decedent is bound; anıl this reason can not apply to realty. For as this species of property is bound, not by issuance of execution, but by rendition or dock. eting of judgment, it follows that no lien upon real estate can be transferred from one writ of execution to another: Lucas v. Price, 4 Ala 679; Mansony V: United States Bank, Id. 752; Stewart v. Muckols, 15 Id. 231.
Upon the other hand, the existence of any such rule, with regard to any species of property, is denied in Mississippi and Arkansas, in the cases re. spectively or Davis v. Helm, 3 Smed. & M. 1, and State Bank v. Etter, 15 Ark. 268. As militating against the views of the Alabama court, the first of these cases calls attention to the fact, that though a judgment in a real action was of higher dignity than a lien, yet it must, at common law, have been revived upon the death of the defendant; also, to the fact that an elegit, when issued, bound lands from the time that judgment was rendered, and yet to authorize the issue of an elegit after the death of the defendant, there must first be a revival of the judgment against him. And the court think that in deciding whether an execution, so issued, is regular or not, it is a point im. material to the question involved that, under the circumstances of the case, the goods in the hands of the personal representative were bound by a lien.
In Alabama itself, the question is no longer an open one. By sec. 2875, Rev. Code, it is provided: “A writ of fieri facias, issued and received by the sheriff during the life of the defendant, may be levied after his decease, or an alias issued and levied if there has not been the lapse of an entire term, so as to destroy the lien originally created.” And in Hurt v. Nave, 49 Ala. 459, these provisions are held to apply to realty also.
That part of the principal case which decides that an original writ of exocution, issued after the death of the defendant, is voidable, not void, seems overruled by Collier v. Windham, 27 Ala. 291, this latter case deciding that such writ is entirely void. See, too, on this subject, Freeman on Executions, sec. 35.
BERRY V. CARTER ET Ux.
(4 STEWART & PORTER, 387.) It is not ACTIONABLE SLANDER to charge a married woman with adultery.
Action of slander for saying of Sabinia Carter, wife of Samuel Carter, "she is not chaste, and I have kept her;" “I have had criminal connection with her;" "I have had sexual intercourse with her.” To the declaration there was a demurrer interposed; this was overruled. Defendant declining to answer over, a jury summoned assessed damages in plaintiff's favor in the sum of five hundred dollars. Defendant took out a writ of error.
Taylor, J. It is admitted that the words charged as slanderous are not actionable per se, unless they import the offense which is made indictable by the second section of the act of
1812, entitled, “An act to amend the act for the punishment of crimes and misdemeanors:” Toul. Dig. 224.
That section makes it punisbable by a fine of not less than one hundred dollars, for “any man and woman to live together in adultery or fornication.” The living together is an essential part of the offense, without which no indictment could be sustained under this section. It would be a strained construction to affix this meaning to the words charged in the declaration. The common understanding of mankind would not receive them in this sense. It is useless to analyze the expressions to prove this; the enunciation of them renders it as obvious as any reasouing could do.
It must be a great gratification of the defendants in error, however, that they have really effected everything which would be important to them by the action. The cause has been submitted to a jury, and a verdict returned for five hundred dollars damages, thus manifesting the purity of Mrs. Carter's character; and fixing the offense of moral, although not legal, slander
upon the plaintiff in error. The judgment is reversed.
That charging a married woman with adultery is not per se actionable at common law, see Buys v. Gillespie, 3 Am. Dec. 404; Smalley v. Anderson, 15 Id. 121; also note to Coburn v. Harwood, 12 Id. 37.
THE GOVERNOR v. WHITE ET AL.
(4 STEWART & PORTER, 441.) SURETIES TO AN OFFICIAL BOND ARE PROPER Parties to a suit brought
upon a breach of the condition of the bond, though neither the fact nor amount of their principal and liability has been established by previous
suit. THE BREACH OF AN OFFICIAL Bond is sufficiently assigned by negativing
the words of the covenant therein. The facts appear from the opinion.
SAFFOLD, J. The action was debt, in the name of the governor, for the use of Callahan against White, as sheriff of Pickens county, and his securities on his official bond.
The breach assigned in the declaration is, that said White, as sheriff, had collected, by virtue of sundry executions, of divers persons, a large sum of money, to wit, the sum of fire hundred and twenty-eight dollars, which was and still is due to said Callahan for his fees as clerk of the circuit court of said county