
    Barnes against Baker and Sledge.
    December, 1824.
    2, Semble The lien of an execution is destroyed by an injunction. 2, Motion by S. vs. Sheriff for money made on execution in his favour, B claims the money under an execution against the same person. A former execution on JBys judgment has been returned satisfied ; his claim cannot interfere with >S.
    IN the Circuit Court of Lauderdale County, Chapel Sledge made a motion against Joseph N. Baker, Sheriff of that County. Baker appeared and admitted due notice. Sledge then gave in evidence three fi. fas. from said Court in his fa-vour against Thomas W. Edwards, received by the Sheriff on 1st of May, 1821, 13th November, 1821, and 15th October 1823 ; and an injunction from said Court issued 17th January, 1822 (and received by the Sheriff 28th January, 1822), on the bill of Edwards against Sledge, enjoining further proceedings on the judgment on which the three executions above mentioned had issued. The fi. fas. were numbered 123, and were the original alias and pluries on the same judgment. The first execution was endorsed “ Received “ 1st May, 1821. This case stayed October 4th, 1821, C. B. “ Rountree, Sheriff.’’ At November Term 1821, the Circuit Court adjudged the “ stay bond” to be void. The alias fi. fa. was endorsed, “ Received 30th November 1821, C. B. Rountree, Sheriff”—“ stayed by injunction 26th March, 1822.” The pluries was endorsed, “ Received, 15th October, 1823. “ Levied on a negro woman and child as the property of “ Thomas W. Edwards, property sold for $540 12}, which “ was paid over on this execution by order of the Court, at “ March Term, 1824; no more property found in my County, “J. N. Baker, Sheriff.”
    And thereupon come George Barnes and claimed the money made on the last mentioned execution, and exhibited three writs of fi. fa. in his_ favour against said Edwards 
      being also original, alias and pluries on the same judgment, the first of which was received by the Sheriff Baker on the 7 th <jay 0f November, 1822, and returned “ Receipt filed for “ the plaintiff’s debt and costs unpaid, 26 March, 1823. Levied on one negro woman Charlotte and child named “ Henderson, 26th March, 1823. Money not made for want “ of time.” On the alias execution a memorandum of the levy of the first was endorsed, and it was returned, “came to “ hand 1st May, 1823. Satisfied, J. N. Baker, Sheriff, by his “ deputy J. W. Byrne?' The third execution was received by the Sheriff on the 6th of October, 1823, which was returned endorsed.
    “ Presley Ward surrendered negro woman Charlotte, and “ her child Henderson to John W. Byrne, Deputy Sheriff, in “ discharge of himself as security for her delivery heretofore “ 12th December, 1823, and he acknowledges the same, J. N. “ Baker, Sheriff, by his deputy, J. W. Byrne. Property sold “ and proceeds applied to an execution in my hands at the “ same time in favour of Chapel Sledge against Thomas W. “ Edwards, by order of the Court at its March Term, 1824. “ J. N. Baker, Sheriff.
    “ The alias execution satisfied as per receipt filed by J. “ W. Byrne, is no satisfaction, said receipt refused to be ac- “ cepted or acknowledged by the plaintiff as genuine. “ George Coalter, Attorney for the plaintiff.”
    It appeared by the Record that the injunction obtained by Edwards against Sledge had been dissolved on the 4th day of October, 1823. The Circuit Court rendered judgment against Baker for $540 124, the amount of the sale of the negro woman and child, as by the i’eturn on the third execution ; whereupon Barnes was made a party to the motion by consent, with leave to prosecute a writ of Error to determine whether he or Sledge be entitled to the money.
    
      Coalter for plaintiff.
    
      McKinley and Hopkins for defendant in Error.
   Judge Gayle

delivered the opinion of the majority of the Court.

On the part of Sledge, it has been contended that the lien of his executions delivered to the Shei’iff on the 1st of May and 30th of November, 1821, was not destroyed by the injunction. In England, security is not required on Obtaining an injunction, but the sheriff is bound to proceed on the execution unless the defendant should pay the money into Court or deposit it as the Court may order. When the execution has begunJ;o operate, the injunction does not interfere until it is paid.. On granting the injunction there could be no reason to require security; hence the doctrine that an injunction does not destroy the lien of an execution. But by our Statute of 1807, (Laws Ala. 298,) the Sheriif is required under a penalty to refund to the defendant in the execution, when an injunction has been obtained, the money which he may have received on it; and the uniform practice here has been to require bond and security of the party obtaining an injunction to the judgment; and if the Sheriff has levied and not sold, he returns the property. The bond and security are a substitute for the money which may be in the hands of the Sheriff, and if the money which might be raised from the sale of the property is to be refunded, it follows that the property, if not sold, is to be returned.

But it is said that the lien extends to other property, though it may be inoperative on the particular property levied on.

When the Sheriff has taken property sufficient to satisfy the execution, it becomes vested in him, and he alone is answerable to the plaintiff. If then sufficient property be levied on, the lien can extend no farther.

But the determination of this point, although mainly contested in the argument, is not necessary to the decision of the case. From the Record it appears that the second execution in favour of Barnes, which was received by the Sheriff on the 1st of May 1823, was returned satisfied without any reference to the receipt mentioned in the former return. If Barnes has not received his money, the Sheriff on the proper motion against him would be concluded by his own return.

Judge Crenshaw.

Though I agree in affirming the judgment I cannot assent to all the reasoning expressed in the opinion of the majority of the Court.

I dissent from the position that an injunction destroys the lien of an execution. In my opinion, when an execution has once acquired a lien, that lien, unless by the act or negligence of the plaintiff, cannot be destroyed until the execution is satisfied. An injunction may suspend or postpone its opei'ation, or if the property has been sold and the money refunded, may, under the Act of 1807, which has been referred to, defeat the specific lien on the property levied on ; but to say that an injunction, obtained ex parte by the defendant, destroys the lien of the execution, is giving to the Statute a construction and operation which, in my opinion, was not intended by the Legislature. If this be the law, an execution can afford but little security until it is satisfied ; for the defendant may, in almost any case, obtain an injunction ; and if this remove the lien, may, the moment afterwards, dispose of the whole of his estate ; and when the injunction shall be dissolved, the plaintiff will find nothing to satisfy his judgment. It cannot have been intended by the Legislature to open so wide a door to fraud.

Judgment affirmed.

Judge Minor not sitting.  