The assignment of error presents the question, whether the issuance of the two ji. fa's., and the intervening ca. saon the prior judgment of the Court of record, returnable to successive terms of the County Court, when the latter fi. fa. was received by the sheriff, after the property had been levied on by virtue-■of the attachments, and was then levied on the same pro.-perty, created a lien on the property, in favor of the first judgment ereditor, which will prevail over that created by the attachments, and the proceedings thereon.
The statute of 1307,a provides “that no writ of fieri facias, or other writ of execution, shall bind the property of the goods against which such writ is sued forth, but from the time that such writ shall be delivered to the sheriff,” Sic. It is to be observed, the language of this statute is applied to such executions as bind the property of the goods against which they may be issued; and is inappropriate to the nature of a capias ad satisfacien-dum, which according to the principles of the common law, could give the oiffeer no authority to seize property. Nor does the statute vary the effect of the ca. sa. unless where a debtor who has been arrested under it, may choose to tender property iu discharge of his body.b In that event the officer may receive and sell property, as if taken under a fi. fa. But unless there be such voluntary surrender, there is no authority to the officer holding the ca. sa. to intermeddle with the property, however abundant it may be.
Another part of the same statute has also some influence on this question. It directs “that when any execution shall issue, and the party at whose suit the samo is issued, shall afterwords desire to take out another execution, at
If the act of January j 1S2S, relative to the satisfaction of executions, have any influence on the question, it must be to sustain the doctrine advanced, as it increases the facility of continuing the lien on judgments, or explains the previous law to the same effect: so that it is only necessary for that purpose, after placing the original fi. fa. in the hands of the proper officer, if it be not satisfied, to sue out an alias to the next term, and continue to renew the same from term to term. But it is expressly provided, “that if a term shall elapse, after the return of the first execution, before an alias shall be sued out, and delivered to the sheriff, the lien created by the first writ of execution, shall be cancelled and of no avail.” Here a term was permitted to elapse between Wallis’ original and alias fi. fa. It is true he sued out his ca sa. to the' intervening term, but it had not the effect of supplying the chasm in the lien; for though a ca. sa. or elegit, falls equally within the definition of the term “execution,” used in the statute referred to, yet the former is not an execution which may be issued against goods, &c., as contemplated by the statute first quoted; nor is there any necessity for giving the statutes a strained construction to embrace it, as we think a plaintiff may sue out an alius fi.fa., without obstructing his right to a ca. sa., during the time the former may be in the hands of the sheriff, or other officer.
It then only remains to be considered, whether the attachments created a lien on the property, from the time of the levy? On the part of the defendant in error, it it
Judgment reversed.
a.
Laws of Ala. 294.
b.
Laws of Ala. 297.
a.
Laws of Ala 293.
a.
Laws of Ala 12.