
    John D. Martin vs. Charles Lofland.
    In a controversy between two judgment creditors as to priority of lien, the return on an execution on one of the judgments, “ held up hy the plaintiff,” will be prima facie evidence of the fact that it was so held up.
    L. obtained judgment on a forfeited forthcoming bond in October, 1843, but stayed, the execution until after May, 1844 ; M. obtained judgment against the same party, on a similar bond, on the 6th May, 1844, on which an execution issued, and was returned “ October 5th, 1844, held up by plaintiff; ” afterwards executions issued on both judgments, and were levied on the same property, which did not produce enough to satisfy both; held, that L.’s judgment was entitled to prior satisfaction.
    On appeal from the, circuit court of Lafayette county; Hon. H. R. Miller, judge.
    On the 16th of May, 1843, Charles Lofland recovered judgment against R. R. Corbin and others for $1213, on which an execution issued to November, 1843, which was returned “ bonded ” ; and “ bond forfeited October 16th, 1843'.” Onjhis bond an execution issued in January, 1844, returnable to May of that year, but was not acted on in consequence of an agreement between the'plaintiff and defehdant,'to delay the enforcement of the judgment by execution, until after the sitting of the circuit court of the county of Lafayette, in May, 1844; which agreement for delay was given in consideration of collateral security from the defendants. On the 9th of December, 1844, Lofland issued another execution to May, 1845, which was levied on certain slaves of the defendants ; the proceeds of the sale of which were awarded to an execution in favor of John D. Martin, to be presently noticed.
    Another execution was issued on Lolland’s judgment, returnable to October, 1845, which was levied on a lot of land, which sold for $805.
    
      On the 20th of May, 1843, the same defendant Corbin confessed judgment with a stay of execution for six months, in favor of John D. Martin, for $2220. On the 9th of January, 1844, an execution on this judgment issued to May, 1844, which was bonded, and the bond forfeited to May 6th, 1844; on the 22d of June, 1844, an execution issued on the forfeited bond, returnable to November, 1844; on which the sheriff returned “ October 5th, 1844, held up by plaintiff.”
    On the 11th December, 1844, Martin issued another execution, which was levied on the same slaves on which Lofland’s judgment was levied; and the court awarded the proceeds of sale to Martin’s judgment.
    On the 1st of August, 1845, Martin issued another execution, which was levied on the same lot of land with Lofland’s, and the land was sold under both executions. Each judgment was regularly registered and enrolled. The sheriff brought the money into court for appropriation; and the court below awarded it to Lofland’s judgment, in the following opinion delivered by Judge Miller. After reciting the facts:
    “ On the 7th May, 1844, Lofland’s execution was suspended until after the sitting of the May court, by which Martin, whosé bond was forfeited on the 6th of May, 1844, acquired a priority of lien.
    “After the sitting of the May court, Lofland’s lien was revived, the limited suspension having expired.
    “ The priority acquired by Martin was however such as could be lost or parted with by the act of Martin. On the 5th of October, 1844, the sheriff returned his execution ‘ held up by plaintiff’; at this time the lien of Lofland was in full force, and has so continued, so far as appears, to the present time.
    “ It is immaterial whether the suspension of Martin’s execution was for a definite period of time, or for a new consideration, or not; the suspension of the execution, no matter for how short a period, suspended his lien; and the' lien of Lofland’s being then in full force, and having so continued, acquired a priority. I am, therefore, of the opinion, "that the money returned into court should be applied to Lofland’s execution.” From this opinion, having embodied the facts in a bill of exceptions, Martin appealed.
    
      Totten, for appellant.
    
      John W. C. Watson, for appellee.
    1. I maintain that the suspension by the appellee of his execution, was not of such a character as to affect or prejudice his judgment lien. The suspension was from the 7th of May until the sitting of the circuit court, and this was on the 22d of the month. That this was the time when this court was held, is a fact of which the court will take judicial notice, though the same is not set out in the record; and this suspension was not only for so limited a period of time, but was under circumstances which preclude the idea of fraud. And that the lien of a judgment creditor can only be postponed or defeated by some act deemed fraudulent in law. See Smith v. Everly, 4 How. 178; Foute v. Campbell, 7 How. 377, 383, 384. In this last case, the court, speaking on this subject, say in express terms, “ it must be such a delay as would justify the inference of fraud.” See pp. 384, 385. See also 3 S. & M. 231; 6 How. 223.
    2. That the collateral security cannot affect the question,’see 4 How. 186.
    3. Again. The stay given in this instance expired before the appellant had it in his power to issue an execution on his judgment. The forthcoming bond of appellant was forfeited May 6th, 1844, and was returnable to the court thereafter to be held in that month. ' Until the return day of this bond, no execution could have been issued upon it; and on this return day, the stay of the appellee expired. The agreement of the appellee was not to stay the collection of his judgment until after court, or after the rising of the court, but until the sitting of the court, which was only another form of expression for the first day of the term. See Foute v. Campbell, 7 How. 377.
    4. In the case of Michie v. Planters Bank, 4 How. 130, the execution of the junior judgment creditor was levied before the stay of the senior judgment creditor had expired ; and this peculiarity will, it is believed, be found to exist in every case in which the lien of a senior judgment has been declared dormant, as against a judgment. See Peck’s Rep. 30 ; 2 Hill, 364; 5 Hill, 377.
   Mr. Justice Clayton

delivered the opinion of the court.

This is a contest for priority between two judgment creditors. Lofland’s original judgment was obtained in May, 1843; on the forfeited forthcoming bond in October, 1843. The attorneys of Lofland on the 6th of May, 1844, agreed with the defendant, that they would stay the execution until after the sitting of the May court, 1844, upon his giving collateral security, which was done.

Martin’s judgment was obtained by confession in May, 1843, with a stay of execution for six months; bond forfeited 6th May, 1844. An execution issued, which was returned October 5th, 1844, held up by plaintiff. On 11th December, 1844, another execution issued, on which some money was made. On 1st August, 1845, a pluries issued, which was levied upon a lot, the sale of which produced the money in controversy.

In Lofland’s case, an alias execution issued 9th December, 1844, on which some money was made, and about which there was a controversy between Lofland and Martin, at the May term, 1845, which it is not now necessary to notice. On the 18th September, 1845, a pluries execution issued, which was also levied on the lot, which produced the money in controversy.

Both parties complied with the law in regard to enrolling judgments in due time.

It will thus be seen, that Lofland’s'judgment is prior in time ; but Martin contends, that it is postponed because of indulgence granted upon it to the defendant.

The indulgence granted by Lofland extended from the 6th of May, 1844, till the close of the term of the Lafayette circuit court, then next following, a period of some three or four weeks. We need not decide whether, by this act, Martin’s judgment obtained priority; because to the November term, 1844, of the court, Martin’s execution was returned by the sheriff, “ held up by plaintiff.” This return was prima facie evidence of the fact; and there was no attempt to rebut it. This was decided at the present term, in Talbert v. Milton. We must attach the same effect to this act of Martin, which is given to the act of Lofland. If by the act of one, the lien was postponed, the same consequence must follow from the like act of the other. The court below so decided; and

The judgment is affirmed.  