
    LANGDON et el. vs. RAIFORD.
    1. A constable may levy an execution issued by, and returnable before, a justice of tbe peace.
    2. When an attachment, issued by and returnable before a justice of the peace, is levied by a constable on the defendant’s land, and after the rendition of judgment in the suit, an execution issued thereon is levied on the same land in default of personal property, the lien of the judgment creditor relates baclc to the date of the levy of the attachment.
    S. "When a motion is made by the plaintiffs in a judgment to have certain moneys in the hands of the sheriff applied to the satisfac’ion of their judgment, which motion is entertained by the court and decided against them, the matter becomes res adjudicata, and the action of the court is conclusive until reversed, or otherwise set aside; and the plaintiffs cannot bring assumpsit against the sheriff for the money.
    ERROR to tbe Circuit Court of Perry county.
    Tried before tbe Hon. Jobn D. Pbelan.
    Assumpsit by plaintiffs in error against tbe defendant, wbo was sheriff of Perry county, “to recover tbe sum of $99T\2T, tbe surplus arising from tbe sale of William A. Strong’s land under a venditioni exponas, issued upon a judgment rendered in tbe County Court of Perry, in a certain case of attachment, wherein John H. Reid was plaintiff, and said Strong was defendant, being money bad and recived by defendant for tbe use of plaintiffs.” Tbe defendant pleaded tbe general issue; verdict and judgment for him. It appears from tbe bill of exceptions, that two attachments in favor of tbe plaintiffs against said Strong were issued by a justice of tbe peace, for fifty dollars in each case, which were levied by a constable on tbe 18th December, 1848, on tbe defendant’s land, and judgments were rendered in both cases by tbe justice in favor of tbe plaintiffs, on tbe 2d July, 1849. An attachment in favor of John H. Reid against said Strong, was levied on tbe same land by tbe sheriff, on tbe 21st November, 1848, and after tbe rendition of judgment, the land was sold under a venditioni exponas by tbe sheriff. After satisfying tbe judgment of said Reid, tbe balance of 99 XW remained in tbe bands of tbe sheriff, which be paid to one B. E. Parsons, wbo bad also sued out an attachment against Strong, which was levied on tbe same land on tbe 22d December, 1848, and judgment being afterwards rendered in his favor, a venditioni exponas had issued thereon, and was in the sheriff’s hands at the time of the sale. The defendant proved that no execution, or any other process had issued on said plaintiffs’ judgments, and no step had been taken by them to subject the land, though they had demanded the money from the sheriff. It was also shown, that previous to the institution of this suit, the plaintiffs had made a motion in the Circuit Court against the sheriff, to have the money now sued for applied to the satisfaction of their judgment, which motion the court decided against them. The court charged the jury, that if they believed all the evidence, they must find for the defendant; to which charge plaintiffs excepted.
    A. B. Moore, for plaintiffs in error.
    1. The first question that arises in this case, is, can an action of assumpsit be maintained against the defendant, under the facts of this case ? To show that it can, see Wilson v. Sear-gent, 12 Ala. Rep. 778; 17 Mass. 563; Thompson v. Merri-man, 15 Ala. Rep. 166; 10 Peters, 156-7; 13 ib. 263; Hitchcock v. Lukens, 8 Porter, 333.
    2. The attachment of plaintiff, having been levied on the lands of the defendant prior to the attachment of Parsons, created a prior lien in their favor, and entitled them to the surplus in the hands of Raiford, sheriff, after the payment of Reid’s attachment. 3 Stewart, 433; 12 Ala. Rep. 743.
    3. When a lien is expressly created by law in favor of a party, there must be some act done by, or some laches, or neglect, on his part, from which a waiver, or abandonment of his lien may be inferred, before it can be said that he has lost his lien. 12 Ala. Rep. 838: 4 S. & Marshall, 579; 1 Howard, 48.
    4. That a constable has a right to levy an attachment, may be inferred from a fair construction of the several statutes to be found in Clay’s Digest, p. 55, §-5; ib. 358, §1; ib. 359, §§ 4-5; ib. 364, §7. See also Toulmin’s Digest, 512, § 15; 15 Ala. Rep. 721.
    5. If a constable has a right to levy an attachment on personal property, he may levy it upon lands, as the statute requires tbe levy to be made in tbe same manner. Clay’s Big. 60, § 29.
    6. Tbe principle of res adjudicata does not apply to decisions of courts made in a summary way. 3 Pb. Ev. C. & H.’s Notes, Part 2, 825.
    7. In this case there was no adjudication, as tbe record shows that tbe court refused to bear tbe motion.
    Tbe action of tbe court on tbe motion, unless tbe case bad been beard on its merits, will not bar this suit.
    Tbe refusal to bear tbe motion was equivalent to a demurrer by Raiford, and that sustained by tbe court, which would not bar this suit. 3 Pb. Ev. C. & H.’s Notes, 2 Part, 835; 1 Blackford, Stephens v. Dunbar, 56.
    I. W. Garrott, for defendant.
    1. Tbe plaintiffs show in their bill of exceptions, that before tbe commencement of this suit, they made a motion before tbe Circuit Court of Perry, to have tbe same identical money for which this action is brought, applied to tbe satisfaction of their judgments, which motion that court refused to grant. If plaintiffs have any right to the money, this motion was their remedy, and tbe court having jurisdiction having decided against them, they are bound by its judgment. Denham et al v. Harris, 13 Ala. Eep. 465; Thompson v. Merriman, 15 ib. 166.
    2 Plaintiff’s attachments were levied by a constable upon land, and a constable cannot levy an attachment; because,
    1st. There is no statute which authorizes such levy.
    2d. Tbe statute which prescribes the form of tbe writ, requires it to be directed to “ any sheriff of tbe State of Alabama.” Clay’s Digest, 55, § 6; ib. 63, § 38. A constable, therefore, could not execute such writ. In last statute, word “may” means “must.” 9 P. 390, 395-6; Gresham v. Lev-erett, 10 Ala. Rep. 384.
    3. Sheriffs are directly empowered to execute attachments and writs of forcible entry and detainer, issued by justices of the peace. Clay’s Digest, 359, § 8.
    4. Plaintiffs having only judgments before a justice of the peace, have no lien, because the statute expressly provides that judgments before a justice of the peace shall not bind land. Clay’s Digest, 205, § 17. And tbe only way by wbicb land can be subjected to a judgment of a justice of tbe peace, is through tbe Circuit Court, by virtue of the statute found in Clay’s Digest, 207, § 31.
    5. Tbe defendant sold tbe land as well under tbe judgment of Parsons v. Strong, as of Reid v. Strong, and was required by tbe process in bis bands to bave said moneys before tbe court, to satisfy tbe same. Tbe money, therefore, was in tbe custody of tbe law, and could not be sued for in this action. Denham et al. v. Harris, 13 Ala. Rep. 465, 468.
    6. Tbe plaintiffs obtained tbeir judgments on tbe 2d July, 1849, but caused no execution to issue thereon, nor did tbey take any step to subject tbe land thereto. Reid and Strong obtained judgments at tbe July Term, 1849, of tbe County Court of Perry, wbicb by law is held on tbe 4th Monday of that month. Tbey caused process to issue on tbeir judgments, and bad tbe land sold to satisfy them; and after tbe land was thus sold, and tbe proceeds in tbe bands of tbe sheriff, tbey (tbe plaintiffs) are for the first time beard to claim tbe money. Under such circumstances, if tbey bad any lien by virtue of tbe levy of tbeir attachment, tbey bave lost it by their own laches. Campbell v. Spence et al. 4 Ala. Rep. 543.
    7. Although tbe action of assumpsit lies to recover money wbicb ex wquo et bono belongs to another, yet tbe money must bave been received under circumstances wbicb show some default on tbe part of tbe defendant, from which tbe law will imply a contract. This action only lies on a contract, either expressed or implied. 17 Ala. Rep. 51; 1 Ch.’s PI. 98; Cb. on Contracts, 184.
    When tbe sheriff received tbe money, be took it under tbe process in favor of Reid & Parsons, and bad it for them, having up to that time no notice of tbe claim of plaintiffs. He, therefore, bad no contract or duty to perform to them, in consequence of having received this money. Tbe claim of plaintiffs after be thus received tbe money, cannot raise a promise in tbeir favor. 2 Richardson, S. C. R. 102; 3 U. S. Digest, 435, § 186.
   CHILTON, J.

The first question wbicb demands consideration is, whether a constable can levy an attachment issued by and returnable before a justice of tbe peace. That the constant practice for years has been for such officers to levy attachments of the kind, is undoubtedly true. Indeed, I know of no case where the right has been questioned. But to deduce the right from the several statutes upon the subject, I am free to confess, is a matter of some difficulty.

By the third section of the act of 1807, it was made the duty of the several constables of the respective counties, “to serve all warrants, summonses, executions and other process to them directed by lawful authority,” &c. Clay’s Dig. 364, § 7. By the fifth section of the act of 1814, the constable is required to “ endorse on the back of all process, how he has executed the sameand by another act, passed the same year, the justices are required to direct their process to the officer whose duty it is to execute the same.” Clay’s Dig. 359, §§ 4, 5. The fourteenth section of the statute last referred to, requires that “every warrant, attachment, summons, subpoena or other process, issued by a justice of the peace, shall be returnable to a day certain, giving a reasonable time for attendance,” &c. ib. § 6.

By the fifth section of the act of 1833, (Clay’s Dig. 55, § 5,) justices of the peace have exclusive jurisdiction over attachments, where the sum sworn to be due does not exceed fifty dollars. By the second and fourth sections of this act, they have power to issue attachments for sums over fifty dollars, but they are made returnable to the Circuit or County Court; and in respect to attachments so returnable, it is clear that the sheriff should execute them. From these several statutes, and several others which seem to point to the same conclusion, we think it may be safely inferred that the legislature intended, that the constable should levy attachments which were exclusively within the justice’s jurisdiction. The fact, that by the act of 1829, the constable is allowed a fee of seventy-five cents “ for levying an attachment,” (Clay’s Dig. 240, § 3,) clearly shows that such was the legislative interpretation of the previous acts. But there are other and subsequent statutes which introduce the difficulty. The sixth section of the same act which gives justices exclusive jurisdiction of attachments for sums under fifty dollars, declares that “ to prevent. errors in issuing attachments, the writ shall be in the following form: The State of Alabama. To the sheriff of — County, greeting,” &c. Clay’s Dig. 55, § 6. And by the act of 1835, (ib. 63, §38,) “all original or judicial attachments and summonses of garnishments are required to be directed, ‘ To any sheriff of the State of Alabama’.” Again: by the previous act of 1823, it was made unlawful for the sheriff or coroner to execute process in civil cases, issued by any justice of the peace, except attachments, and by the act of 1826, precepts in forcible entry and detainer were also excepted. Clay’s Dig. 359, § 8. These acts, construed literally, would embrace all attachments, and require them to be executed by the sheriff. We think, however, upon a careful examination of the several statutes, that they were not designed to have so extended an operation, and that the apparent conflict may perhaps be reconciled by the fact that attachments issued by justices, hut returnable to cour.s of record^ must be directed to the sheriff) &c., and executed by him ; and that such attachments only were in the mind of the legislature, as were so returnable. In Alford v. Johnson, 9 Porter, 320, it was held, that the act of 1836, requiring process to be directed “to any sheriff,” did not apply to attachments issued by a justice of the peace.

It is, however, sufficient that taking the whole body of our statutes together, they leave the right of the constable to levy in doubt, since we should be unwarranted, unless required by the most unequivocal expression of the legislative will, in overturning a practice which has uniformly, so far as we are advised, obtained in this State, and upon which the title to much property doubtless depends ; a practice too, which seems to have been sanctioned by our predecessors as early as 1831, in the case of Carey v. Gregg, 3 Stew. Rep. 433. That was the case of a motion by a sheriff against his deputy, for failing to pay over money collected by the latter on executions placed in his hands from a court of record, which had been levied by him on a negro slave. The deputy, who was also a constable, defended upon the ground that attachments and executions from a justice of the peace had been levied by bim as constable, half an hour before the fi. fa’s, from the court of record came to his hands. The court held, that the attachment®, having been levied before the execution came to the officer’s hand, had the prior lien. The right of the constable to levy tbe attachments, though not made a question in the cause, is certainly involved in the decision.

The next question is, whether the levy by the constable upon the land of the defendant, created a lien paramount to the lien of Parsons’ execution, which was subsequently levied by the sheriff. The act of 1837, (Clay’s Dig. 60, § 20,) authorizes all original attachments to be levied on land, and it is well settled that a lien attaches from the date of the levy; inchoate, it is true, but capable of being perfected by the rendition of judgment, and the issue of such process as may render it effectual. If the constable levy the attachment on land, and judgment be thereupon rendered by the justice, such levy can only be made available by the issue and levy of an execution on the same land, in default of personal property of the debtor; in which event, the levy and the proceedings had before the justice, are to be certified to the Circuit Court, and if found regular, an order of "sale issues to the sheriff. Olay’s Dig. 207, § 31. Upon a sale of such land, we think it very clear that the lien would date, not from the levy of the execution, but would relate back to the levy of the attachment. This proceeding would also furnish record evidence of the levy upon, and sale of the land, which the justice could not order, his not being a court of record. That the lien of the attachment dates from the levy, and is not affected by the levy of an execution which had no lien before the attachment was levied, see Pond v. Griffin, 1 Ala. Rep. 678.

But it is argued that the lien, which was commenced by the levy, was never perfected by the Langdons, they having failed, after the rendition of judgment, to issue execution, so as to make a levy and obtain an order of sale, as required by the statute.

The answer to this is, that the land was sold by the sheriff under a venditioni exponas issued in a suit commenced by an attachment, which had been levied before the attachment of the Langdons, and consequently they could only proceed for the surplus, after satisfying the older lien, which surplus it appears the sheriff had in court. Whether in such case it would not be incumbent on them to show, by a return of the consta^-ble upon an execution, that there was not personal property of tbe debtor to satisfy it, as in tbat event only they could bave perfected tbeir lien, bad no sale of tbe land been made by tbe sheriff, is a question wbicb in tbe present posture of this cause, we need not decide, because tbe view we take of tbe only remaining question in tbe cause, renders its decision unnecessary.

4. Tbe bill of exceptions shows, tbat tbe plaintiffs proved tbat they bad made a motion at a previous term of tbe Circuit Court of Perry, and before tbe commencement of this action, to bave tbe same money now sued for by them, applied to tbe satisfaction of tbeir judgments against tbe defendant, Strong; but tbat said motion was refused by tbe presiding judge. We do not understand from this language, tbat tbe judge refused to entertain tbe motion, but tbat having beard it, be refused tbe application of tbe money as moved for by tbe plaintiffs. Tbe money moved for was in tbe custody of tbe law, brought into cpurt by its officer, in obedience to its mandate, and it has long been tbe established practice in such cases, for tbe court — most usually upon tbe application of tbe sheriff, but not unfrequently upon tbe application of a party having a lien upon tbe fund created by law, all parties interested being duly notified — to order tbe fund to be paid out according to tbe priority of tbe respective liens. See Denham & Waford v. Harris, 13 Ala. Rep. 465, and cases cited; Thompson v. Merriman, 15 ib. 166; Campbell v. Spence, 4 ib. 543.

Tbe court having a right to bear and determine tbe motion, and having tafeen jurisdiction and adjudged against it, tbe plaintiffs, by tbeir bill of exceptions, show tbat tbe matter wbicb they seek by this action to re-litigate is res adjudicata, and thus justify tbe court in giving tbe charge excepted to, namely: tbat if tbe jury believe tbe evidence, they should find for tbe defendants. If the plaintiffs bad a legal lien, the court bad, upon tbeir application, jurisdiction to decide upon it, and has decided against them, wbicb decision must conclude them until it is reversed, or otherwise set aside. If they bad no lien, then this action falls to tbe ground.

It results tbat there was no error in tbe charge, and tbat tbe judgment of tbe Circuit Court must be affirmed.  