[Berry v. The State.]

and no question that the indictment, in form and substance, sets out a crime punishable by law, and on demurrer, or motion to quash, would be pronounced sufficient. If the indictment was void, because of the irregular formation of the grand jury, if it had been the finding of an illegal assemblage, without the semblance of authority-the court would have been without jurisdiction, and the judgments would be void, furnishing no protection, and not a bar to a regular prosecution. But there being no more than mere irregularity, of which the appellants could or not have availed themselves, even-handed justice requires that this irregularity should not now vitiate the judgments as a full protection to them.-Regina v. Haughton, 1 Ell. & Black. (72 Eng. Com. Law), 515. Such was the conclusion in Mississippi, in Hurt v. State, 25 Miss. 378, involving a question almost identical, certainly not distinguishable from that now presented. The statutes provide liberally for the amendment of indictments, so that variances between proof and pleading may be corrected; and if the defendant will not consent to the amendment,, for a dismissal, and the preferring a new indictment, so that because of such variances a judgment of acquittal can not be obtained. They provide for the preferring a new indictment, if one is lost; the operation of the statute of limitations being suspended, from the time the first indictment was found. And they provide further, that when the judgment is arrested, or the indictment quashed, on account of any defect therein, or because not found by a grand jury regularly organized, or because it charged no offense, or for any other cause, that a new indictment must be ordered; and here again the operation of the statute of limitations is suspended.-Code of 1876, $$ 4816-20. These provisions do not contemplate a second prosecution, in any other cases than such as are specified. And we are of the opinion, that a second prosecution can not be sustained, after a judgment of acquittal rendered on the verdict of a jury founded on the evidence, by a court of competent jurisdiction, having before it an indictment, which, fairly construed (though it may be subject to demurrer), discloses an offense of which the court has cognizance, although there may be an erroneous formation of the grand jury. Such a judgment must stand upon, at least, as high ground, as would the erroneous final judgmen of a court of competent jurisdiction in a civil cause.

The Circuit Court erred in overruling the demurrers to the replications to the plea of the appellants. For the error, the judgment of conviction of the appellant Holman must be reversed, and a judgment here rendered discharging him. The judgment convicting the appellant Berry of murder in

[Ala. Gold Life Insurance Co. v. McCreary.]

the first degree must be reversed, and the cause as to him remanded, with directions to the Circuit Court to sustain the demurrer to the replication to his plea. In the meantime, Berry will remain in custody, until discharged by due course of law.

Ala. Gold Life Insurance Company v.

McCreary.

Motion for Instructions to Sheriff, as to Application of Moneys collected under Executions.

1. Lien of execution; how lost.-When an execution is placed in the hands of a sheriff, with instructions not to sell, or not to sell until further orders, it is not in his bands for any effective legal purpose, and its lien is postponed to that of any subsequent execution creditor who establishes his lien while the older execution is thus kept dormant.

APPEAL from the Circuit Court of Conecuh.

Tried before an attorney of the court (Code, § 664), on account of the disqualification of the presiding judge.

This was a motion by the appellant, a judgment creditor of Y. M. Rabb, for instructions to the sheriff of said county, Robert J. McCreary, as to the application of certain moneys in his hands, arising from the sale of lands belonging to said Y. M. Rabb. The appellant's judgment against said Rabb was rendered at the Spring term, 1878, of said Circuit Court; and an execution thereon was issued and placed in the sheriff's hands on the 20th April, 1878; which execution was levied by him on the lands of said defendant, and was in his hands when the lands were sold under the levy on the first Monday in August, 1878. G. F. Mertins had obtained a judgment against said Rabb, in October, 1873, and had an execution issued thereon, within one year, which was levied on a part of the same lands; and this execution was returned by the sheriff, "Controlled by the plaintiff," without a sale. Six other executions were issued on this judgment, levied on said lands, and returned in like manner with the first; the last being issued after the Fall term, 1877, of said court, made returnable in proper form, and returned "Controlled by plaintiff." On the 29th April, 1878, nine days after the issue of the appellant's execution, another execution

65 127

132 320

[Ala. Gold Life Insurance Co. v. McCreary.]

was issued on the judgment of Mertins, placed in the hands of the sheriff, and by him levied on said lands; and this execution was also in the hands of the sheriff when he sold the lands under the levies. On these facts, the presiding judge instructed the sheriff to apply the money to the satisfaction of Mertins' execution; to which ruling and judgment the appellant excepted, and here assigns it as error.

OVERALL & BESTOR, with G. R. FARNHAM, for appellant, cited Campbell v. Spence, 4 Ala. 551; Wood v. Gary, 5 Ala. 43; Albertson, Douglass & Co. v. Goldsby, 28 Ala. 711; Bliss v. Watkins, 16 Ala. 229; Burnham v. Martin, 54 Ala. 189; 3 Wash. C. C. 60; Freeman on Executions, § 206, p. 26, and numerous authorities therein referred to.

RABB & RABB, contra, cited Turner v. Lawrence, 11 Ala. 426; Doe v. Bates, 6 Ala. 480; Bagby v. Reeves, 20 Ala. 427; De Vendell v. Hamilton, 27 Ala. 177; 12 Wheaton, 177; Patton v. Hayter, Johnson & Co., 15 Ala. 23, opinion of Dargan, J.

STONE, J.-We feel constrained to reverse the ruling of the special judge in this case, on the authority of Albertson, Douglass & Co. v. Goldsby, 28 Ala. 711, and authorities therein cited. An execution placed in the hands of a sheriff, with instructions to levy, or with no instructions, is an authority and command to him to proceed to make the money, by levying upon and selling defendant's property, if necessary. Such delivery of execution creates a lien in favor of the plaintiff, from the date of the delivery. But an execution placed in the hands of a sheriff, with instructions, then or afterwards given, not to sell property, or not to sell until further orders, is not in his hands for any official purpose the law can sanction. The attempt to fasten and preserve a lien by such method, is a constructive fraud on creditors and subsequent purchasers, and postpones the supposed lien thereby attempted to be created, to the lien of any subsequent execution creditor, who establishes his lien while the older execution is thus kept dormant.-Freeman on Executions, section 206. The lien of the Alabama Gold Life Insurance Company is paramount to that of Mertins, and its judgment must be first paid.

Reversed and rendered.

[Flexner & Lichten v. Dickerson.]

Flexner & Lichten v. Dickerson.

Attachment against Tenant's Crop, for Advances.

1. Advances to make crop; statutory lien.-A person who makes advances to another, whether in horses, mules, provisions, &c., or in money to purchase the same, to enable him to make a crop, the statutory regulations being complied with (Code, §§ 3286-88), has a lien on the stock so provided or bought, and on the crop raised; which lien has a preference over all other liens on the crop, except the landlord's lien for rent and advances.

2. Same: attachment to enforce lien.-The remedy by attachment, to enforce the statutory lien for such advances, is subject to the same limitations and restrictions that are imposed on the landlord, and can only be issued upon an affidavit which, when fairly construed, discloses the existence of a particular contract within the terms of the statute, and a state of facts which authorizes the issue of the writ upon that contract.

3. Affidavit for attichment.-An affidavit which states that the defendant is indebted to the plaintiffs in a specified sum, "for advances made to him to make a crop in said county for the year 1878, and that he has removed a part of the crop made by him, on which the lien was given, without the consent of said plaintiffs," does not show a substantial compliance with the requisitions of the statute, and is fatally defective.

4. Amendment of affidavit.- Defects of form in the affidavit, as under the general attachment law (Code, §3315), are amendable, but defects of substance are incurable.

5. Same; what are matters of substance.-The matters of substance, which must be stated or shown in such affidavit, are, that advances were made in horses, mules, oxen, necessary provisions, or farming tools and implements, or in money to purchase the same, the amount being stated, to enable the defendant to make a crop; that a written note or obligation was taken, declaring that such advances were made bona fide for the purpose of enabling the defendant to make a crop, and that without them it would not be in his power to procure the necessary teams, provisions, &c., to make a crop; also, the reg istration of the writing, as required by the statute, and the existence of one of the causes for which an attachment may be sued out.

APPEAL from the Circuit Court of Butler.
Tried before the Hon. JOHN K. HENRY.

GAMBLE & BOLLING, for the appellants.

P. O. HARPER, contra.

BRICKELL, C. J.-When advances in horses, mules, necessary provisions, &c., or money to purchase the same, are made to enable any person in this State to make a crop, and it is declared in a written note or obligation, given by such person for such advances, that the same were obtained by him in good faith for the purpose of making a crop, &c., a lien attaches to such crop, and to the stock bought with the

[Flexner & Lichten v. Dickerson.]

money advanced, having on the crop preference over all other liens than that of a landlord for rent and advances. The lien can be enforced by the same remedies the lien of the landlord for rent may be enforced.-Code of 1876, $$ 3286, 3288.

A landlord is entitled to process of attachment, to enforce his lion for rent, when the claim is due, and, on demand, the tenant refuses payment; and also, whether the claim is due or not, when there is good cause to believe that the tenant is about to remove from the premises, or otherwise dispose of the crop, without paying the amount which will be due for rent and advances; when he has removed from the premises, or otherwise disposed of any part of the crop, without paying the rent, and without the consent of the landlord; or, when he has disposed, or there is good cause to believe he is about disposing of any articles advanced to him, in fraud of the rights of the party applying for the attachment. The attachment can issue only when affidavit of one of these facts is made, stating also the amount that is or will be due, &c.-Code of 1876, §§ 3472-73. It is to this remedy of the landlord the statute entitles the person who makes advances to another to enable the latter to make a crop. The remedy must be pursued under the same limitations. Process of attachment, to be levied on the crop, or on stock bought with money advanced, may issue at his instance, and in his favor; but it can be issued only upon affidavit which, fairly construed, discloses the existence of the particular contract the statute authorizes and prefers, and the state of facts which authorizes the issue of the writ upon that contract. Hawkins v. Gill, 6 Ala. 620; Tucker v. Adams, 52 Ala. 254 ; Staggers v. Washington, 56 Ala. 225; Brown v. Coats, Ib. 439; Shields v. Dothard, 59 Ala. 595. An attachment, issuing without an affidavit which shows the existence of the facts declared by law to be a ground for the issue of the writ, is subject to be abated on plea. The affidavit is the initiatory step-the very foundation of the whole proceeding. It alone can call into exercise the extraordinary power of the court, to command the seizure of the estate of the defendant, before he is heard, and before judgment pronounced against him.-Drake on Att. $$ 83-4; Code of 1876, § 3314.

The writ in this case was issued upon the affidavit of one of the plaintiffs, stating that the defendant was indebted to them in the sum of seventy dollars "for advances made to him, the said Preston C. Dickerson, to make a crop, in Butler county, Alabama, for the year 1878; and that the said Preston Dickerson has removed a part of the crop made by him on which the lien was given, without paying said advances, and without the consent of said Flexner & Lichten," &c.