Saffold, J.
The contest arose on the trial of the', right of property, levied on by execution, and claimed pursuant to the, statute.
The plaintiff in error, in 1824, recovered judgment against Gabriel Hanby, on which executions were regularly issued, up to the time of the levy, in 1828;-upon all of which executions, the sheriff- had made returns of milla bona, except the last, which was levied on the property in question.
The defendant, Hanby, died in 1826. Horn, the claimant of the property, was appointed administrator, and was removed. The 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 errror.
The case presents the questions—
1st. Was a revival of the judgment necessary under the circumstances of the case, by a scire facias against the administrator?
2d. 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-[240]*240musí 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 8th section of which provides, “that no writ of fieri facias, or other writ of execution,shall bind 1he 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,” &c.
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 ft- 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 test; 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 vs. Langmead,
Lord Kenyon, in delivering the opinion, said, thej were bound by the current of authorities, all speak ing the same language: that in every, case whict had occurred, it had been held, “ that the executior may relate back to the first day of the term, though the defendant died before execution actually taker out, unless something be done, in the interim, tc shew an incongruity in the proceedings—as was done in the case of Heapy vs Parris. 7 t 1 L 1 >
In explaining the incongruity in the case las1 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 test on a day posterior to the defendant's death—and, consequently, that the execution was irregular.”
The same doctrine is maintained in Corrlyn’s Digest, vol. 4: p. 247, (title Executions, D. 2.) There, reference is also made, to the English statute,a “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, &¡c. to be executed; who, on the receipt of it shall indorse the day of his receiving the same.”
It is also said,b 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.
[242]*242(
(
Againa— 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, irreconcileable 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.b 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 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 test on the day on which the same shall ‘ be issued.c 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 hen of the execution, or the legality of the process, may well be questioned. -It is a question, however, which can have no material influence [243]*243in this case — in as much as the original fi. fa. bore 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,
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Saffold, J.
The contest arose on the trial of the', right of property, levied on by execution, and claimed pursuant to the, statute.
The plaintiff in error, in 1824, recovered judgment against Gabriel Hanby, on which executions were regularly issued, up to the time of the levy, in 1828;-upon all of which executions, the sheriff- had made returns of milla bona, except the last, which was levied on the property in question.
The defendant, Hanby, died in 1826. Horn, the claimant of the property, was appointed administrator, and was removed. The 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 errror.
The case presents the questions—
1st. Was a revival of the judgment necessary under the circumstances of the case, by a scire facias against the administrator?
2d. 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-[240]*240musí 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 8th section of which provides, “that no writ of fieri facias, or other writ of execution,shall bind 1he 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,” &c.
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 ft- 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 test; 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 vs. Langmead,
Lord Kenyon, in delivering the opinion, said, thej were bound by the current of authorities, all speak ing the same language: that in every, case whict had occurred, it had been held, “ that the executior may relate back to the first day of the term, though the defendant died before execution actually taker out, unless something be done, in the interim, tc shew an incongruity in the proceedings—as was done in the case of Heapy vs Parris. 7 t 1 L 1 >
In explaining the incongruity in the case las1 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 test on a day posterior to the defendant's death—and, consequently, that the execution was irregular.”
The same doctrine is maintained in Corrlyn’s Digest, vol. 4: p. 247, (title Executions, D. 2.) There, reference is also made, to the English statute,a “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, &¡c. to be executed; who, on the receipt of it shall indorse the day of his receiving the same.”
It is also said,b 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.
[242]*242(
(
Againa— 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, irreconcileable 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.b 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 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 test on the day on which the same shall ‘ be issued.c 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 hen of the execution, or the legality of the process, may well be questioned. -It is a question, however, which can have no material influence [243]*243in this case — in as much as the original fi. fa. bore 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 shewn 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 timo 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, that 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, do 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 delivered in the life-time of the defendant.
[244]*244The case of Brown vs. Gilliland,a 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, agaist the testator, which remained unsatisfied, and on which there had been returns of nulla Iona. 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 amicablé. 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 .specifiic Execution of the contract. He said, “he considered such an execution precisely as if it never "had"issued, in as much 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 [245]*245unanimous. 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 debt- or’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 tion in this case is not, whether the defen perty was bound from the delivery of the fa. to the sheriff to be executed; or whet from the delivery of -the pluries on whic was made. Indeed, it does not appear th ference in the lien, whether from the one other, was considered in the least material: .question is, whether the pluries ft. fa. was void, and subject to resistance by a third person, whose rights were incidentally involved ? On the former question, the case of Brown vs. 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 Taib vs. Harris,a the But the [246]*246sheriff had two writs of ft. fa... in favor of different: plaintiffs, against the same defondant 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 Iona. Money being now made on the executions, but not sufficient to satisfy both, the question arose, which should be pre-ferecl. The Court ruled, that where several executions issue against the same defendant, the sheriff is bound to satisfy that execution 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 ¿gainst the debtor.
That Court seems to have recognised 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 test, 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 their goods, made writs of execution have relation to their test, 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 [247]*247the virtue of the impartiality here inculcated. — ■ There would appear to be no sufficient reason, why a Iona fide purchaser from the defendant, 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 vs. Cochran's adm’rs,a 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 hands 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 [248]*248,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 shall be transferred from the original, to the alias and pluries, as a continued execution, on the same judgment, and thereby be preserved.
The principle of the decision, in the case of Epps vs. Randolph,a which has been cited to the contrary, does not affect this question.
Büt, I now recur to the true question, whether or not thqpluries 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 ?
[249]*249In Jackson vs. Delancy,a 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.b
The remedy against an execution, merely voidable, far want of a renewal of the judgmenl, 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; aud 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 [250]*250claimant 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 subsequent to the delivery of the original fi. fa., but prior to that of the alias or plu-ries; 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 entitled 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 pla-ñes, (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 in-cumbrance, 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 had been regularly issued, and returned nulla bona, without any dormant internal from the date of the judgment, up to the time of this le[251]*251vy, 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.
7 Durn. & East, 20