Doremus, Suydam & Co. v. Walker. made the following points: 1. The discharge of the defendant under the bankrupt law, did not impair the lien which the plaintiffs acquired by their judgment, execution and levy. [2 Caine's Rep. 300; Ex parte Foster, 5 Law Rep. 55; In the matter of Cook, id. 443-4-5-6; Kittredge v. Warren, 7 id. 77; Kittredge v. Emerson, id. 312-3; Dutton & Richardson v. Freeman, 5 id. 447, 452; Ex parte The City Bank of New Orleans, 7 Law Rep. 553; Mosby v. Steele & Metcalf, 7 Ala. Rep. 249; Owen on Bankr. 181; Stead v. Gaiscoigne, 8 Taunt. Rep. 527. See also, 1 Wash. C. C. Rep. 29; Clay's Dig. 208.] A. F. HOPKINS and T. WILLIAMS, for the defendant. The levy of a fieri facias on personal property, merely invests the sheriff with a special, while the general property remains with the defendant in execution. [8 Johns. Rep. 486; Law Rep. for June, '42, p. 65-6-7.] And where a claim is interposed by a third person, and bond executed, with surety, as prescribed by the statute, the special property of the sheriff is thereby divested, and the possession revested in the defendant, from whom it was taken. Pending the claim, the sheriff may levy on other property, which could not be done, if the lien on the property claimed still continued. [2 Porter's Rep. 51-2.] The lien, after the claim, may be assimilated to the lien of an attachment, after property attached has been replevied; in the one case it depends upon the judgment of condemnation, in the other upon the fact whether a judgment is recovered by the plaintiff. And the lien being in this imperfect state, the property, so far as the bankrupt is interested in it, is transferred to the assignee in bankruptcy, who may litigate the right to it, and insist upon devoting it to the bankrupt's debts. [Law Rep. June, 1842, p. 55, 64-5-6-7, 70, 72-3.] If the plaintiffs had a lien, the decree in bankruptcy would prevent them from prosecuting it in a State court; but under the bankrupt act, the District Court should be resorted to for its protection. [Law Rep. June, 1842, p. 72-3; id. February, 1845, 120.] The decree placing the property in the custody and under the supervision of that Court. The object of an execution is to collect the debt, and if the defendant is discharged from all his debts before it is satisfied, the execution may be quashed. If the defendant had sued out a writ of error and executed the Doremus, Suydam & Co. v. Walker. usual bond, the levy would have been discharged and the claim consequent thereon, could not have been tried; but the bond of the claimant would become inoperative. By the 3d section of the bankrupt act all the estate of the bankrupt, vests in the assignee, from the time his petition is filed. It is not denied, that the assignee takes subject to all the rights, equities, &c. of third persons. [9 Ves. Rep. 100; Law Rep. Nov. 1842, p. 308.] But it is insisted, that liens by operation of law, as judgment, execution, &c., are entirely, divested by the decree which authorizes the certificate of discharge to issue. [See 5 Ala. Rep. 676, 810; Law Rep. May, 1842, p. 19.] COLLIER, C. J.-The eighth section of the act of 1807, "concerning executions," &c. enacts that " No writ of fieri facias, or other writ of execution, shall bind the property of the goods. against which such writ is sued forth, but from the time that such writ shall be delivered to the sheriff," &c. " to be executed," &c. [Clay's Dig. 208, § 41.] By the act of 1812, it is provided, that where a sheriff shall levy an execution on property claimed by a third person, the claimant shall make oath to the same, and give bond to the plaintiff, with surety in a sum equal to the amount of the execution; conditioned to pay the plaintiff all damages which the jury, on the trial of the right of property, may assess against him, in case it should appear that the claim was made for delay, &c. It is provided further, that the sheriff shall return the property levied on, to the person out of whose possession the same was taken, upon such person entering into bond with surety, to the plaintiff in execution, in double the amount of the debt and costs, conditioned for the delivery of the property to the sheriff, whenever the claim of the property so taken shall be determined by the Court; and if the obligors in the last mentioned bond shall neglect or refuse to deliver the property to the sheriff, the sheriff shall forthwith return the bond to the clerk's office of the Circuit Court; and the same "shall have the force and effect of a judgment, and execution may be awarded by the Court against all or any of the obligors having ten days notice thereof." The execution, or a copy thereof, (where it is issued from another county,) together with the papers pertaining to the claim, are returnable to the Circuit Court of the county where the fieri facias was levied. Doremus, Suydam & Co. v. Walker. [Clay's Dig. 210-11, 213, § 63.] A subsequent statute, passed in 1828, repeals so much of the pre-existing law as required two bonds to be taken for the trial of the right of property, and enacts that the claimant shall execute a bond with surety, "payable to the plaintiff in execution, and conditioned for the forthcoming of the property, if the same be found liable to the execution, and for the payment of such costs and damages as shall be recovered for putting in the claim for delay." Further, it is made the duty of the jury, in all cases when they find the property subject to execution, to find the value of each article separately; and if the claimant shall fail to deliver the same, or any part thereof, when required by the sheriff, it shall be the duty of the sheriff to go to the clerk, and indorse such failure on the bond by him returned, with a copy of the execution." It is then declared that the bond shall have the force of a judgment, and the clerk shall issue execution against the claimant and his sureties, for the value of the property not delivered, &c. And by this latter enactment it is also provided, that proceedings for the trial of the right of property shall in no case prevent the plaintiff from going on to make his money out of other property than that that levied on and claimed, if to be found. Act of 1828, Clay's Dig. 213-4, §§ 62, 64, 67, 68. The construction of the act of 1807 has been uniform, that the delivery of a fieri facias to a sheriff, or other proper executive officer,eo instanti operates a lien upon the goods of the defendant, and takes from him the right to dispose of them free from the legal incumbrance. And the creditor who has outstripped all other competitors in the race of diligence, cannot be defeated, or overreached, by a junior fieri facias unless he has allowed his execution to become dormant, or has omitted to sue it regularly from term to term. It may be conceded that the seizure of goods, under legal process, merely invests the officer with a special property, and having disposed of them as the law provides, his estate is at an end. Such a concession cannot benefit or prejudice either party. It proves nothing in respect to the lien, which the plaintiff in execution acquires. The sheriff may part with the possession, without in any manner affecting the plaintiff's right; and we apprehend, such has been the effect of delivering the slaves levied on, in this case, into other hands, upon reciving a bond stipulating for Doremus, Suydam & Co. v. Walker. their return, in the event that they should be adjudged to be the property of the defendant. The trial of the right of property as provided by statute, is quasi a proceeding in rem—the specific thing is to be restored if the claimant shall be unsuccessful. This, we think, cannot entirely destroy the lien; it may keep it in abeyance, but its active energy will revive, and may be coerced, so soon as the claim interposed shall be determined to be indefensible. It might, if necessary, be worthy of inquiry, whether the act of 1828, in modifying the law so as to require a single bond to be executed, embracing substantially, the conditions of both the bonds previously necessary, does not by implication require the sheriff to deliver the property levied on, to the claimant instead of the defendant in execution. Is this not clearly inferrible, from Rives & Owen v. Willborne, 6 Ala. Rep. 45, and Langdon & Co. v. Brumby's Adm'r, 7 id. 53? Be this as it may, it was directly decided in Mills v. Williams, et al. (2 Stewt. & P. Rep. 390,) that an execution does not lose any lien acquired by it, if it is subsequently suspended in its operation on particular property, by proceedings to try the right, even under the act of 1812. So in Campbell v. Spence, et al. 4 Ala. Rep. 543, we say— "where the right to issue execution is merely suspended, as in the case of forthcoming bonds, and bonds to try the right of property," the lien of the judgment will continue. See also McRae and Augustin v. McLean, 3 Porter's Rep. 138; Hopkins v. Land, 4 Ala. Rep. 427; Bartlett & Waring v. Doe ex dem. Gayle & Phillips, 6 Ala. Rep. 305, and cases there cited. It is argued for the defendant in error, that although the lien may not be impaired by the claim of property, that the third section of the bankrupt law of 1841, vests all the property and rights of property, &c. of the bankrupt in the assignee, and that the eleventh section, and the last proviso to the second section, do not exempt from its operation liens created by act of law; and if they do, such lien must be made available through the instrumentality of the District Court. The third section certainly employs terms of very extensive meaning, and the eleventh, and proviso to the second, uses language sufficiently broad to embrace liens, created either by the law, or act of the parties. Doremus, Suydam & Co. v. Walker. In Ex parte Foster, 5 Law Reporter, 55, Mr. Justice Story, says, that an attachment for the recovery of a debt under the laws of Massachusetts, when levied, does not create such an absolute lien, as is entitled to protection, and priority, under the bankrupt act of Congress, but gives a contingent lien, dependent upon the creditor's obtaining a judgment. That if the debtor should be decreed a bankrupt, and receive a discharge under the act, that discharge could be pleaded as a good bar to the suit, in the nature of a plea puis darrein continuance; and therefore under such circumstances ought to prevent the plaintiff from obtaining a priority of lien over the general creditors of the defendant, on the property attached in his suit. "Consequently," says the learned judge," the creditor ought to be enjoined against farther proceedings in his suit, except so far as the District Court should allow, until it should be ascertained whether the debtor obtained his discharge or not." But after judgment obtained, it was conceded, that no injunction should be awarded. "The proceedings in bankruptcy after the judgment, can have no effect whatsoever upon the judgment, or upon the property attached in the suit." The creditor's right is then made perfect, being no longer conditional, or contingent, but has attached absolutely to the property; and the Court has no authority to deprive him, or by an injunction to obstruct the proceedings on his execution. If the bankrupt obtains his discharge it would be no defence to the due execution and discharge of that judgment, in the regular course of proceeding thereon; for the debtor, after judgment, has no day in Court to plead any bar or defence. In the matter of Cook, 5 Law Reporter 443. See also Martin v. Martin, 1 Ves. Rep. 211-3; Lea v. Parke, 1 Kean's Rep. 724.] In Kittredge v. Warren, 5 Law Reporter, 77, the Superior Court of judicature of New Hampshire, in a well considered opinion, determine that an attachment of property upon mesne process bona fide made, before any act of bankruptcy, or petition by the debtor, is a lien upon property, valid by the laws of the State; and within the proviso of the second section of the bankrupt act of 1841. That the means of the attachment being saved by the proviso, the means of making it effectual are also saved: and the certificate of discharge of the bankrupt cannot, when pleaded, operate as an absolute bar to the further maintenance of the ac |