Gresham v. Walker

10 Ala. 370

• Court: Supreme Court of Alabama
• Decided: June 15, 1846
• Status: Published

Opinion

ORMOND, J.

The supposed variance, caused by the omission of a letter in the name of the defendant in execution, was immaterial. Usrey and Usury, are idem sonans.

The execution of a bond for the delivery of property levied on by a fieri facias, suspends all further proceedings under the writ, which should be returnad to the clerk’s office, and if the property is not delivered for sale, an execution issues upon the forfeited bond, against the debtor and his sureties. The bond offered in evidence, does not purport to have been taken in this case. It is payable to the “ Branch of the Bank of the State of Alabama,” instead of the defendant in error, and does not describe the execution of the defendant in error, so as to identify it as a bond, for the forthcoming of property, levied on in this case, and was therefore properly rejected. Independant of this consideration, the coroner could only discharge himself, by a return upon the execution, that he had levied on certain property, which he had returned to the defendant, upon his executing a delivery bond. No such return having been made, the bond for the delivery of property was no answer to the suggestion.

It was competent for the defendant in execution, to permit a levy to be made on the articles exempt from levy and sale by execution, and until he asserts his right to claim the articles so levied on as privileged from sale, the sheriff must be bound as in any other levy. The defendant may, it is true, even after forfeiture of a forthcoming bond and execution issued thereon, assert his privilege, and refuse to deliver up the property, as was held at this term, in the case of Jordan v. Autrey; but that is not the fact here. It does not appear that there has been any refusal to deliver this property, such refusal cannot be inferred from the mere fact that it was left in his possession, upon the execution of the informal bond offered in evidence. From the case as presented, the defendant must be considered as the bailee of the coroner, and to determine the consent which had been previously given to levy upon the property, a demand of it to be sold under the execution was necessary. The charge of the court on this point was therefore correct, and there being no error shown upon the record, the judgment must be affirmed.