
    John D. Martin vs. Charles Lofland et al.
    Where three executions have been levied on the same property of the defendant therein, and a third party has claimed a portion of the property thus levied on, and given a bond to try the right, and the plaintiffs in two of the executions tender issues to try the right which were joined in by the claimant, while the plaintiff in the third execution failing to tender an issue, the court rendered a judgment discharging the claimant from it, and dismissing the trial as to it, and on the issues tendered by the others, part of the property was held liable to the judgments; and executions issued against the claimant, who paid the money to the sheriff; held, that the plaintiff in the execution, which tendered no issue for the trial of the right of property, had no claim to any part of the money thus paid by the claimant.
    The statute which declares, that if from the default of the plaintiff in execution an issue shall not be made up to try the right of property, the claimant shall be discharged from the bond given, and the property therein mentioned shall not thereafter be liable to satisfy the plaintiff’s execution, is a complete discharge of the property from liability to the execution; and if it be afterwards sold on other executions, the plaintiff who has thus abandoned and forfeited his right to it cannot claim the proceeds.
    Where the high court of errors and appeals have decided a controversy between two judgment-creditors, as to their respective rights to the proceeds of sales made on their executions, and a subsequent controversy between the same parties as to their respective rights to the proceeds of other sales made under like circumstances under executions on the same judgments, arises; the former decision will be conclusive of the rights of the parties in the latter controversy.
    On appeal from the circuit court of Lafayette county; Hon. Hugh R. Miller, judge.
    There was a motion in the court below to appropriate money made on executions under the following facts : Charles Lofiand obtained a judgment against Richard A. Corbin and his security, by means of the forfeiture of a forthcoming bond, on the 16th of October, 1843, which was enrolled on the 26th of June, 1844. John D. Martin obtained a judgment against the same defendant and security by forfeited bond on the 6th of May, 1844, which was enrolled May 13, 1844.
    R. H. Byrne obtained a judgment against the same parties by forfeiture of a forthcoming bond on the 6th of May, 1844, which was enrolled June 21st, 1844; all in Lafayette county. Executions issued on each of these judgments, to the May term, 1845,, of the court, and were levied on the same property, which was claimed by G. L. and E, F. Corbin, to whom it was surrendered by the sheriff upon their executing the usual bond. At the return term of these executions, Byrne and Lofland tendered issues to their claimants, to try the right of property so claimed at that term. Issues were duly made up between the claimants and Byrne and Lofland, respectively.
    . John D. Martin failed to tender an issue to the claimants at the return term of his execution, and at the April term, 1846, of the court, the claimants were discharged from their bonds; the cause dismissed, as to John D. Martin, and judgment rendered in the claimant’s favor for costs by reason of the default of Martin in tendering and making up an issue with claimants, at the previous term of the court, to try the right of property. Pending the trial of the right of property, Lofland and Martin sued out other executions upon their judgments, which were levied on property of Corbin not included in the other levies, and a controversy arising as to which execution was entitled to the proceeds of the sales, the high court of errors and appeals adjudged them to Lofland. It is not deemed requisite to notice further this branch of the case.
    In the mean time the issues between the claimants and Lofland and Byrne were tried, and the jury found in favor of the plaintiffs in execution as to a portion of the property levied on, and the court below gave judgment accordingly. Executions issued upon these judgments against the claimants, and the money in controversy was paid by them to the sheriff in discharge of these executions. The sheriff asked the direction of the court below as to the application of the money. The court applied it, first to the satisfaction of the judgment of Lofland, and the residue to that of Byrne, to the entire exclusion of Martin’s judgment, from which judgment Martin appealed.
    Lucas, Watson, and Clapp, for appellant.
    This case does not fall within the meaning and operation of the act. H. & H. 654, § 77. It was the intention of the legislature, to protect the property referred to, as the property of the claimants, and not otherwise. Had Martin issued an execution on his judgment, after the judgment aforesaid had been rendered in favor of said claimants, and had the same levied on the slaves so claimed, and as to which the judgment set out, had been entered, it is very certain that the claimants alone could have interposed. Such judgment certainly could not have enured to the benefit of the debtor, or in any way have shielded his property from his judgment creditor. By the finding of the jury in the case of Byrne, it was ascertained, that the slaves in question were the properly of the execution debtor, and, being his property, they were subject, when this fact was ascertained, to the elder lien. Lucas v. Stewart and Mitchell, 3 S. & M. 231. Session, Acts, 1844, p. 99, sec. 9.
    
      Taliaferro and Hayes, for appellees.
    1. The lien of Martin’s judgment on the property levied on, was lost, by his default in tendering and making up an issue at the proper term of the court. The claimants were legally discharged from their bonds', the property levied on discharged from the execution, and not subject ever afterwards to the satisfaction of the judgment. H. & H. 654, sec. 77.
    
    
      2. John 1). Martin abandoned his levy, by refusing to make up an issue, and electing to sue out another execution upon his judgment, upon the claimants replevying the property. Walker v. McDoivell, 4 S. & M. 118.
    3. The money in controversy, was paid to the sheriff by the claimants, upon the executions then in his hands, of Lolland and Byrne, and not by the sale of the property claimed. Martin bad no judgment against claimants, and his execution was not instrumental in producing the money.
   Mr. Chief Justice Shaekey

delivered the opinion of the court.

All of the parties to this controversy, had obtained judgments against one Richard R. Corbin. Several sales of property were made, and the money arising from them, has been already appropriated, except a certain sum raised under the last executions, which is now the subject of controversy, each party claiming to have it appropriated in discharge of his execution.

Two of the parties, to wit, Martin and Lofland, have had a case before this court, which grew out of a contest about the appropriation of the proceeds of a previous sale, made under the same judgments. By that decision, Lofland’s lien was held to be entitled to the proceeds of the sale, and it is decisive of the rights of these two parties in the present case. By holding that Lofland’s lien should be preferred, as to the particular fund then the subject of dispute, we, in effect, decided, that his right to the proceeds of any subsequent sale, made under like circumstances, would also be preferred to Martin’s. See 8 S. & M. 352.

The circuit court directed, that Lofland’s execution should be first satisfied, and that the residue should be applied in satisfaction of Byrne’s execution. The contest is, therefore, between Byrne, and Martin. The record presents some confusion, as to the dates of the perfection of the forthcoming bonds, and it is, therefore, rather difficult to tell which was the prior lien. But the rights .of the parties will be controlled' by other circumstances.

All three of the executions were levied on the same property. A part of it was claimed by a third person, who gave bond to try the right according to the statute. Lofland and Byrne both tendered issues, but Martin failed to do so, and,.as to him, the court rendered a judgment, discharging the claimants, and dismissing the case. On the issues tendered by the others, the jury found part of the property, to wit, three of the negroes, liable to the executions, and judgment was rendered against the claimants. Executions issued, and the defendants, who were the claimants, paid this money to the sheriff. Under these circumstances, we think that Martin had no right to it. It was paid by defendants, against whom he had no judgment. But the statute is explicit, in declaring, that, if from the default of the plaintiff in execution, an issue shall not be made up to try the right, the claimant shall be discharged from the bond given, and the property therein mentioned shall not thereafter be liable to satisfy the plaintiff’s execution. Revised Code, 202, sec. 26. This statute is a complete discharge of the property from liability to the execution; and if it be afterwards sold on other executions, the plaintiff, who has thus abandoned and forfeited his right to it, cannot claim the proceeds. A voluntary payment by the claimant, places him on no better ground, as he has no lien on the thing which is the consideration for the payment.

Judgment affirmed.  