
    BRALEY vs. CLARK.
    1. A. stranger to an attachment suit, who has replevied the property attached, cannot, alter the rendition of judgment against the defendant, and a demand of the property on the bond, interpose a claim to the property under the statute, without having first surrendered it to the sheriff according to the condition of his bond.
    Error to tbe Circuit Court of Tuskaloosa.
    Tried before tbe Hon. Thomas A. Walker.
    The plaintiff in error sued out a writ of attachment against Francis Inge, returnable to tbe Circuit Court of Tuskaloosa, and caused it to be levied on a negro man slave named Jackson. After tbe levy, tbe defendant in error replevied tbe slave, by executing a replevy bond, with E. W. Peck bis security, conditioned that, “if tbe defendant in tbe attachment, (Inge) shall be condemned in said action, and shall return to tbe sheriff of Tuskaloosa county, tbe specific property so attached, and described as aforesaid, according to tbe statute in such cases made and provided, and in case be fails to do so, bis said securities will do it for him, then this obligation to be void; otherwise to remain in full force and virtue.”
    In the suit by attachment, tbe plaintiff in error obtained j udgment against Inge, and thereupon tbe sheriff demanded tbe slave Jackson of Clark upon tbe replevy bond; and upon bis failure to deliver him, returned the replevy bond “ forfeited,” on which an execution was issued against Clark and bis surety, for tbe amount of the plaintiff’s judgment against Inge.
    At tbe term of tbe Circuit Court next succeeding tbe issue of execution on tbe forfeited replevin bond, to-wit: tbe November term, 1850, Clark moved tbe court for a mandamus to tbe sheriff, to compel him to accept and return into court an affidavit and bond for tbe trial of the right of property, which Clark bad made and tendered to him when tbe slave was demanded under tbe replevy bond, and by which Clark claimed the slave as bis own. This motion was granted, and the sheriff accepted the bond and affidavit, and returned them into court; and the claim suit was set down on the docket of the court for trial.
    At the April term, 1851, of the court, the plaintiff in error moved the court to dismiss the claim thus interposed by Clark; but his motion was overruled, and he excepted.
    At a subsequent term, a trial of the claim suit was had, which resulted in favor of the claimant. The plaintiff in error excepted to the ruling of the court, and the case is brought here for revision.
    From the bill of exceptions it appears, that the slave, although in the possession of Francis Inge, the defendant in attachment, was, in fact, the property of Decatur Inge, who, subsequent to the levy of the attachment, sold him to Clark, the claimant. Upon this evidence the court instructed the jury, that the claimant was entitled to a-verdict. To which the plaintiff excepted, and requested the court to charge the jury, that the replevy bond given by the claimant estopped him from setting up a claim to the slave, and that the jury must find the slave liable to the execution; which charge the court refused, and the plaintiff again excepted.
    It is here assigned for error:
    1. That the court erred in not dismissing the claim to try the right of property;
    2. That the court erred in the charge given to the jury, and in refusing to charge as requested.
    P. & J. L. Martin, for plaintiff in error:
    The claim suit was irregular, and should have been dismissed on the following grounds:
    1. The order for a mandamus was irregular, no sufficient showing having been made to authorize it; and hence the proceedings had under the order should have been dismissed. Me parte Jones, 1 Ala. 15, 98; 6 ib. 511; 18 ib. 436; 2 Leigh 165; 2 "Wendell 444; 1 ib. 423 ; Bacon’s Abr. Title Mandamus; 5 Comyn’s Digest 31.
    2. The affidavit and bond tendered were insufficient, if the claimant had been in a condition to make claim. The affidavit bears date in 1847, some two years before the bond, was given, and is insufficient in its terms. The bond purports to be signed by an attorney in fact, whose authority for that purpose was not shown, and was not approved by tbe sheriff, but was received by him under coercion.
    3. The claimant was not so situated in regard to the property as to authorize him to make the claim. The property having been replevied by him, he could not make claim under the statute, without first delivering it to the sheriff, according to the condition of his bond. His failure to deliver the property on demand rendered him liable for the whole judgment ; and whether the property belonged to him individually, or to the defendant in attachment, it became liable to satisfy the plaintiff’s debt, and the claimant became a joint judgment debtor with defendant in attachment. The tender of an affidavit and bond was no excuse for failing to deliver the property; the claimant was estopped from setting up title in himself. 8 Ala. 656; 4 ib. 279; 3 ib. 636; 18 ib. 436; 3 Stew. & P. 427.
    4. The return of the replevy bond “ forfeited ” was regu: lar, under the facts presented; and whether regular or not, until set aside, or in some way vacated, was binding on the parties, and rendered a trial of the right of property nugatory. A replevy bond may be given by a stranger. Kinney v. Mallory, 3 Ala. 626.
    ÜRMOND & NiGOLSON, contra:
    
    The motion to dismiss, and the first bill of exceptions, cannot be inquired into by the court, as the motion should have been made at the first term after issue joined in the trial of right of property. This is the acknowledged practice of our State. If this be so, the court cannot inquire whether the 'mandamus was properly awarded or not.
    But the mandamus was properly awarded. Ex parte Jones, 1 Ala. 15; Ex parte Mansony, ib. 98.
    Clark had a right to purchase the negro though under attachment. Atwood v. Pierson, 9 Ala. 656; Jackson y. Ge-win, 9 Ala. 114.
    The title to the property never was in Francis Inge. Inge v. Forester, 6 Ala. 418.
    The replevy bond cannot be executed by a stranger. Sew-all v. Franklin. 2 Por. 493; Cummings v. Gray, 4 S. & Port. 897. The contrary is decided in Kinney v. Mallory, but tbe court did not examine tbe statutes in Toulmin’s Digest.
   LIGON, J.

Tbe slave in controversy was levied on at tbe ‘suit of Braley against Francis Inge, commenced by attachment. After tbe attachment was levied, Lincoln Clark made a replevy bond, and took him out of tbe custody of the sheriff. Judgment having been rendered against Inge in tbe suit in favor of Braley, tbe sheriff demanded tbe slave of Clark, who failed to deliver him, but offered to interpose a claim to try tbe right of property. Tbe sheriff, however, refused to ■allow tbe claim to be interposed, and returned tbe bond “forfeited.” After this return, tbe Circuit Court ordered tbe sheriff to receive and return into court tbe claim bond of Clark, and caused tbe claim suit to be placed upon tbe docket. At tbe next succeeding term, tbe paintiff in error moved to dismiss tbe claim suit; which motion was overruled, and at a subsequent term a trial was bad in this suit, which resulted in a verdict and judgment in favor of the claimant.

Upon these facts tbe question arises, whether a stranger to tbe attachment suit, who has replevied tbe property attached,, can, after judgment on tbe attachment, and after tbe property is demanded on tbe replevy bond, interpose a claim to tbe property replevied, without having first surrendered it to tbe sheriff, according to tbe condition of bis bond ?

In tbe case of Kinney v. Mallory, 3 Ala. 626, it was held by this court, that a stranger to tbe attachment suit might., under tbe acts of 1833 and 1837, well make tbe replevy bond required by our attachment laws; and that when such bond was so made, it was subject to such rules as would govern it if made by tbe defendant in attachment himself. The-condition of tbe bond requires a delivery of tbe specific property replevied, if tbe defendant is condemned in tbe attachment suit; and until this is done, tbe bond remains in full, force against all tbe obligors, and tbe property is out of tbe custody of tbe sheriff, and consequently is not so situated as to allow a claim under our statutes to be interposed. To authorize such claim, tbe property must be either in tbe actual or constructive possession of tbe officer of laAV under process. In tbe case under consideration, it bad been taken out of bis possession by the defendant in error, under the replevy bond, and by him retained when demanded by the sheriff. It is true he might, under the condition of his bond, surrender the slave to the sheriff in discharge of his liability, and having thus placed it in the custody of the officer, he could, if he were disposed to do so, interpose his claim, and try the right to it. But having elected to forfeit the condition of the bond, thereby subjecting himself to a liability to pay the judgment rendered against Inge, the plaintiff in the attachment suit has an unquestionable right, under our statute, to sue out execution against him, and proceed to make his money out of any property of the obligors in the bond he may be able to find, regardless of the slave levied on by the attachment. If he does so, neither the defendant in the attachment, nor the obligors in the replevy bond, will be allowed to force him into a trial of the right to property which he does not seek to charge with the payment of his judgment.

It results from these views, that the Circuit Court erred in disallowing the motion to dismiss the claim suit; and as this error must prove fatal to any further proceeding in that suit, it is unnecessary to examine the assignment of error predicated on the charge of the court on the trial of the claim in the court below.

It only remains to add, that the judgment of the Circuit Court is reversed, and the claim of the defendant in error to the slave in controversy is here dismissed.  