Ashurst v. Phillips'

B. F. SAFFOLD, J.

The question presented by the assignment of errors, is the validity of a judgment rendered in the circuit court of Tallapoosa county, at the spring term, 1866, of the court, against the obligors to a bond taken under the provisions of section 19, of “An act to regulate judicial proceedings,” approved December 10th, 1861. The section referred to, recites that any defendant in execution, when a levy has been made, may deliver to the officer holding the execution a written suggestion that there is some irregularity or illegality in the execution, or in its issue, or in the proceedings under it. Having done this, that he should have a right to supersede the execution by giving bond in double the amount of the execution, payable to the plaintiff, conditioned to pay the amount of the execution, and the interest and costs, if the suggestion is not established as true. The court is to try any issue made up, as to the truth of the suggestion, and an appeal is allowed at any time within six months from the rendition of the judgment.

The suggestion is not required to be true, nor is it to contain matter of defense available by any law or rule of practice. It may be anything whatever. It subserves its *163purpose in defeating the execution. It delays the plaintiff, while it tantalizes and injures the defendant.

This subject is elaborately .discussed by this court in Ex parte Pollard and Ex parte Woods, (10 Ala. 77,) in determining the constitutionality of exactly similar provisions of “An act to regulate judicial proceedings,” approved February 20th, 1866. It is unnecessary to repeat here, what is there so well said.

The 19th section of the act of 1861, being in violation of the constitutional requirement, that right and justice shall be administered without delay, and that no law impairing the obligation of contracts shall be made, the bond taken and the judgment rendered on it in compliance with the section, are void.

The judgment of the circuit court is reversed.

As no further action can be taken on the bond, the cause is not remanded.