McLemore v. Benbow

DARGAN, C. J. An execution was issued in favor of William H. Ogbourne against James K. Pinckston, on the 22d day of April, 1850, for five hundred dollars, besides cost, and was levied on a slave named Bill, as the property of Pinckston. Ben-bow interposed a claim to the slave as his, and gave bond according to the statute to try the right of property. On the first day of November, 1850, two other executions were issued against Pinckston in favor of McLemore, and were levied on the fifth day of November, 1850, on the same slave, the claim of Benbow being then pending and undisposed of. The two executions in favor of McLemore were returnable to the Spring Term of the Circuit Court, 1851. At the November Term, however, after the second levies were made, Benbow moved the court to set them aside, which motion ivas granted, and to reverse this judgment setting aside the second levies, McLemore brings a writ of error to this court. We admit that the court will not interpose in this summary way and set aside an execution when it has been levied by the sheriff on the property of one, who is a stranger to the writ, but [78] will leave the party aggrieved by the act of the sheriff to his remedy, and the case of Hewson v. Deggert, 8 Johns. 267, is an authority to this point. But it must be considered as the settled law in this State, that when an execution, is levied on property and a bond is given to try the right thereto in conformity with the statute, a second levy under a junior execution cannot bo made upon the same property before the claim is disposed of.—Langdon & Co. v. Brumby, 7 Ala. 138; Kemp & Buckly v. Porter, 7 ib. 53. The reason of this is, that the property, although in fact in the possession of the claimant, is nevertheless considered as in the custody of the law; the courts therefore will not permit it to bo taken from the claimant by a junior execution, and thus deprive him of the power to deliver the property in conformity with the condition of the bond. But it is urged that the court cannot act upon the matter until the execution is returned, but we see no reason for this; the property being considered as in the custody of the law, the court may' control its own officers from improperly levying upon it, whether the execution is returned or not. We do not perceive any error in the action of the court, and the judgment must be affirmed.