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Ib. Sec. 20. § 13. Wheresoever, on a sale made under any execution, the amount mother of such sale shall exceed the principal, interest, and costs, the sheriff sales exceeds or other officer, shall pay such excess or surplus to the debtor, his exdebt and costs, the re. ecutors, administrators, or agent; and if any sheriff or other officer sidue to be shall fail or refuse to pay such surplus or excess, when required, such paid to the debtor.
sheriff or other officer, his or their security or securities, his or their
executors or administrators, shall, each and every of them, be liable Penalty, &c. to the like penalty and judgment in favor of the said debtor, as is pre
scribed and directed by law, in favor of the plaintiff against the sheriff, for not paying the principal, interest and costs, levied on an ese
cution. Ib. Sec. 21. $14. When any sheriff or other officer, under any execution, shall Where an in junction is receive the whole or any part of the money for which the said execuobtained, the
the tion was issued, and the person against whom such execution may money shall be returned have issued, his executors or administrators, shall obtain an injunction to the debtor.
.to such execution, or any part of the money mentioned therein, before the money received by such sheriff or other officer, is paid to the plaintiff, his agent or attorney, or his executors or administrators; in every such case, the sheriff or other officer, his executors or adminis. trators, shall repay the person or persons against whom such execution issued, his or their executors, administrators, or agent, the money so received, or such part thereof as may be enjoined to the person having a right to demand the same ; such sheriff or other officer, and their securities, his and their executors and administrators, and every of them, shall be liable to the like penalty and judgment in favor of the person, his executors or administrators, by whom the said injunction is obtained, as is directed by law in favor of the plaintiff, against
the sheriff, sor not paying money levied on an execution. Ib. Sec. 34.
§ 15. Aster obtaining a final decree for lands, slaves, or noney, or Proceedings things of a specific nature, in any court having chancery jurisdiction, after a final decree in the clerk of such court shall, upon the request of the party obtaining chancery. such decree, issue any writ of execution, either a fieri facias, capias
ad satisfaciendum, habere facias possessionem, or any judicial process which may now issue from any court of common law, according to the nature of the case, for carrying the said decree into effect;
which writ shall issue in the name of the state of Alabama, and bear [a Con. Ala. Art. 5, Sec. teste and be signed by the clerk of the court; and all process so issued 17.) shall be executed and returned to the clerk's office from which the
same issued, from term to term, on the return day thereof, by the of. ficer or officers to whom the same shall be directed, and shall hare the same operation, and possess the same force, to all intents and pur. poses, as similar process issued upon judgments at common law: the officer or officers to whom any such process is directed, shall be subject to the like penalties for misconduct or neglect, and the court shall exercise in this and in all cases relating to such process, the same powers as if the said process had issued upon a judgment obtained at common law: but nothing herein contained shall prohibit any person from proceeding to carry any order or decree in chancery into execution, in any manner of which he might have availed himself, before
the passing of this act. Ib. Sec. 38. $ 15. In all cases where the writ of elegit shall be sued out, the On elegit, de defendant or defendants shall have the election of the moiety of his, elect lands io her, or their lands to be extended. be taken, 1807-(22)
Whereas divers persons residing in other states, governments, or Preamble. dominions, possessed of lands, tenements, and hereditaments, in this
territory, may have contracted, or may contract debts with the inhabi
tion from a
tants of this territory, without having personal estate in the same, to satisfv such debts and damages :
17. Be it therefore enacted, &c. That all process which heretofore Sec. 1. issued against goods and chattels, shall hereafter issue against lands In what
manner and tenements, in the same manner as against goods and chattels in the lands of non
residents are case of foreigners and non-residents; and the sheriff, upon such at- se
subject to extachment, execution or other process, shall proceed to levy the same ecution. upon the goods and chattels of the defendant, in the first instance, if any there be; but if to the best of his knowledge, there be no such goods and chattels, or not sufficient to answer the plaintiff's demand, he shall execute the same upon the lands and tenements of such nonresident, to the amount of the whole debt; or of so much as may remain more than the value of the goods and chattels so found; and such lands and tenements shall be liable, under the restrictions aforesaid, to be sold to satisfy the judgment of the plaintiff; and he shall sell the same at the most pnblic place in his county, after his having given at least forty days notice, by advertisement in the public gazelles, before the day of sale.
18. Hereafter, lands, tenements, and hereditaments shall be sub- 1812–(15) ject to the payment of all judgments or decrees of any court of record Lands sub. within this territory, and the clerk of such court shall frame the exe-ject to execucution accordingly; and in all cases, the sheriff or other officer levy-court of reing such execution on real estate, shall give at least thirty days notice cord. of the time of such sale ; and the sale shall be at the court-house of the county in which such land may lie : Provided, The courts holden by justices of the peace, shall not be deemed courts of record, within the meaning and provisions of this act ; and the sheriff or other officer selling any real estate, shall make a title to the purchaser, which title shall vest in the purchaser, all the right, title, and interest, which the defendant had in and to such real estate, either in law or equity. 19. It shall be the duty of every sheriff, if he has levied any ex- Ib. Sec. 10.
Sheriff may ecution on property, and advertised the same agreeably to law, if the a
accept other debtor or debtors shall, on the day of sale, produce to the sheriff other property, in property in lieu thereof, to cause the properly so produced, to be levied upon. offered for sale, in the same manner as if it had been originally levied upon. $ 20. The clerks of the several courts of this territory, shall endorse 1815—(12)
Sec. 3. on all executions by them issued, the several items contained in the Clerk to en bill of costs, in intelligible words and figures. (1)
dorse bill of $ 21. All executions required to be issued on a return in vacation, cution. shall bear leste on the return day of the last execution.
Sec. 4. $ 22. It shall be the duty of the sheriffs of the counties throughout Teste in va. the state, respectively, whenever any execution shall be placed in 1819414) their hands, to proceed to levy the saine, and make sale of the Sec. 16 ,
Sheriff shall property thus levied on, in such times as by law is directed, and shall levy e ecu. pay the amount oblained by such sale, to the party or parties entitled tigers
over the moto the same, on the application of such party or parties, or within ten ney.
Penalty. days thereafter, under the penalty of forfeiting six per centum per fer month, for every month such sheriff shall fail to pay over such money, collected as aforesaid.
costs on exe
1 The equitable title to real estate, can be made subject to the payment of debts only by suit in chancery.-See “ Judicial proceedings in Chancery," $ 12,-also $ 69 of this title.
(1) An execution cannot be quashed because more costs are taxed than are due. The error may be corrected on motion to re-tax.-Anon. 2 Stewt. Rep.
1819–(14) $23. When any sheriff shall fail to perform the duties by this act Sec. 18
Bu for required, the person or persons aggrieved, may move against such dePenalty for negleci of du. linquent sheriff, and have judgment against such sheriff and his securities.
ties in office, for the amount he has failed to pay over as aforesaid, or
for failing to return the execution in manner as above directed, 2 in the executions, court from which such execution had issued, upon giving three days
notice of such motion to such delinquent sheriff or his securities in office: Provided however, That time may be given to such delinquent sheriff to make his defence, upon good cause shown to the court
before whom such motion may be made. 1811—(1) $24. When an execution may issue against any principal and seSec 2.
of curity, on any bill, bond, note, or other instrument, the sheriff, or Property of principal to other officer shall levy on the property of the principal first, if he has be first levied
'any property in the county where the security resides : Provided, The Security to security make oath before some justice of the peace, that he is security make affida on said bond, bill, note, or other instrument, which affidavit shall be
filed by the sheriff or other officer with the execution. 1829––(14) $ 25. It shall be the duty of the sheriffs, coroners, and constables Sec. So in this state, lo endorse upon all executions and other process, by ceipt for mo- virtue of which they may have collected any moneys, the amount so ney paid, and
nd received, specifying how much debt, how much interest, how much items on the commission, and how much cost; and shall receipt every such defendant execution.
or defendants, to such execution or process, for said amount ; specifying the several sums so received, so as to make the receipt to any such defendant or defendants correspond with any such officer's returns.
ExecutIONS FROM JUSTICES OF THE PEACE.
26. Whenever it shall become necessary, for want of personal Sec. 1. property, to levy an exccution issued by a justice of the peace, on Circuit court may order" land, it shall be the duty of the officer levying such execution, to resale of land turn the same to the next superior court of his county ; and such court levied on by a constable. shall, on motion of the plaintiff, and it appearing by an exhibition of
the proceedings before the justice, that the same have been regular, order a sale of such land, or whatever part thereof may be necessary
to satissy such execution. 1822—(21) $ 27. Where any judgment is rendered by a justice of the peace, Soc. 1.
and the person against whom such judgment may be rendered, removes Execution directed to to another county, it shall be lawful for such justice to issue execution another
to be to any county in this state, against the property of the person against certified by whom judgment is rendered ; which execution shall be certified by the clerk of coun ty court.
"clerk of the county court:a and it shall be the duty of any legal officer of A But sce 8 29. the county to which such execution may issue, to execute and make
return of such execution, according to the mandate thereof, to the justice of the county from which execution issued.
§ 28. Justices of the peace in issuing executions to counties, other Secheseen. than such as they may reside in, shall make the same returnable tions return within any period of time, not less than thirty, nor more than ninety able from 30 to 90 days. Ib. Sec. 2.
29. In all cases of executions running from one county to anoJustice may ther, it shall be the duty of any justice of the peace of the county to certify execution from another county. The seventeenth section required sheriff's to return all executions not
levied, or on which the money was not made, to the clerk's office by the first
which such executions may be directed, upon having the same presented for that purpose, and upon being satisfied of the hand-writing of the justice of the peace issuing such executions, to certify the same, which shall be sufficient evidence of the authenticity thereof.
630. So much of the sixteenth section of an act entitled " An Act 1827—(38) to revise, consolidate, and amend the several acts relative to justices Constable of the peace and constables," as makes it the duty of constables, for not to take want of goods and chattels on which to levy an execution, to take the body for defendant's body, by virtue thereof, is hereby repealed.
want of $31. It shall not be lawsul for any justice of the peace to issue a sb. Soc. 2.
Justice not capias ad satisfaciendum, unless expressly required by the plaintiff,
to issue ca. sa. his attorney, or agent; and it shall not be lawful for any constable to unless ex: take the body of the defendant upon any execution, unless command-preg te ed thereby : and it shall be the duty of the constable to release the body when the defendant will point out property sufficient to discharge the demand with which he is charged in execution.
2. SUPERSEDEAS OF EXECUTIONS.
$32. If a distringas issue in detinue, the court for good cause 1807—(21) shown, may direct it to be superseded, so far as it relates to the spe- Sec. 29..... cibc thing, and to be executed for the alternative price or value only, in detinue. if fixed in the judgment, or if the same shall afterwards be fixed by a writ of inquiry.
$ 33. The judges of the circuit courts, respectively, shall have 1821—(30) power and authority in vacation, to supersede any execution, when it Sec.
Judges may shall satisfactorily appear to them, or any of them, that the same shall supersede exhave improperly issued from the clerk's office of any of the circuit broneeris
ecutions imcourts of this state."
$ 34. Whenever an order for a supersedeas to an execution, shall 1926–(6) be granted by any of the judges of the circuit courts, it shall be the Sec. 1.
On granting duty of the clerk of the court to which it shall be directed, before is- super suing the same, to take a bond from the party in whose favor it is ble granted, with good and sufficient security, to be approved by said clerk, in double the amount for which the execution shall have issued, payable to the plaintiff or plaintiffs in said execution ; conditioned to Condition. pay and satisfy to the said plaintiff or plaintiffs, the sum of money specified in said execution, together with interest and costs, in case the supersedeas shall be set aside, or be annulled.
$35. The said bond, in case the supersedeas be set aside or annul. Ib. Sec. 2. led, shall have the force and effect of a judgment against all the obli-au pulledeas gors, and execution may be taken out against them all for the sum of bond to have
the force of a money for which the first execution shall have issued, together with judgment. lawful interest thereon, and the costs by the plaintiff or plaintiffs in the said execution, expended.
clerk to take bond.
3. PRIORITY AND LIEN OF EXECUTIONS.
$36. No writ of fieri facias, or other writ of execution, shall bind 1807—(21)
Sec. 8. the property of the goods, against which such writ is sued forth, but Se
Goods bound from the time that such writ shall be delivered to the sheriff, under- from the de
livery of the sheriff, coroner, or other officer, to be executed; (1) and for the bet- execution to
the sheriff A similar power is given to the judges of the county courts by act of 1822. See “ Judiciary-County Court,” - $ 8.
(1) The lien of an execution is discharged by an injunction. Barnes v. Baker & Sledge, Min. Rep. 373.
ter manifestation of the said time, such sheriff, coroner, or other of ficer, his deputy or agent, shall upon the receipt of any such writ, without fee for doing the same, endorse upon the back thereof the day of the month and year when he received the same ; and if two or
more writs shall be delivered against the same person on the same Penalty on day, that which was first delivered, shall be first satisfied. If any ingejecu. sheriff, coroner, or other officer, to whoin any execution shall be detion, for not livered, shall fail or neglect to endorse thereon, the day of the month endorsing time of deli- and year when he received the same, every such person, for every
such failure, shall be liable, on a motion to be made before the court from whence the execution issued, to a penalty not exceeding fifteen per centum, upon the amount of said execution, if it be for money; and if it be for a specific thing, one hundred dollars, to the use of the party injured, upon giving ten days previous notice of such motion; and shall moreover be liable to the action of the party aggrieved, for
all damages arising from such failure. 1928—(34) $ 37. Executions issued by a justice of the peace shall operate as Execution a lien on the property of the defendant from the time of the levy and from justice mot sooner; but if more than one execution shall come into the hands of the peace, to bind pro- ' of the constable at the same time against the said defendant, if all canperty from... not be satisfied, each shall be entitled to a ratable proportion of the the date of its levy. w proceeds : and is more than one execution shall come into the hands Constable's duty in satis. of the same constable against the same defendant at different times, fying difter. then the one first delivered, shall be first satisfied : and to show the ent execu.
priority between different executions, the constable shall endorse on The endorse each the time of delivery, and whether it be the first, second, or third, delivery. &c. in hand, against the same party--and the lien so created by the
levy of an execution by a constable, shall not be over-reached by the
lien of any execution in the hands of the sheriff, not previously levied. IB. Sec. 2. § 38. The lien created by the delivery of an execution from a court Priority of lien between
een of record to the sheriff, shall continue to bind the property of the dejudgment fendant, as between different judgment creditors in the courts of re
cord in this state, in the following manner, viz: 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 delivery of the first writ of execution shall be cancelled and of no avail ;-but if a term shall not have elapsed, and the alias shall be delivered to the sheriff before the sale of property, under a junior execution in favor of an. other creditor, the lien shall continue potwithstanding the alias may not have been delivered until after such junior execution ; but if such alias shall not be delivered until after the sale under such junior exe
cution, the lien of the latter shall prevail. Ib. Sec. 3. § 39. If the title of the property levied on be so doubtful as to inFirst lien may be for
duce the sheriff to require a bond of indemnity, if the party having feited by fail. the prior lien shall fail or refuse to give such bond, then the person nify sherift. having the next lien, shall be authorized to give such bond, and have
the property sold for his benefit.
4. PROPERTY EXEMPT FROM EXECUTION.
1807—(21) S 40. No goods or chattels whatsoever, lying or being in or upon any
band messuage, lands, or tenements, which are or shall be leased for life or chattels on lives, term of years, or will, or otherwise, shall be liable to be taken leased premi. sus exempted by virtue of any writ of execution on any pretence whatever, unless conditional. the party so taking the same shall, before the reinoval of the goods ly.
from such premises, pay or tender to the landlord or lessor thereof,