Garey v. Hines , 8 Ala. 837 ( 1846 )

OSMOND, J.

The attachment law of 1837, [Clay’s Dig. 61, § 33,] evidently contemplated, that the property levied on should continue in specie for the satisfaction of the judgment when obtained, but it does not follow, that the plaintiff in attachment can not resort to other property of the defendant for the satisfaction of the judgment. That an ordinary Ji. fa. may be issued in such a case, is expressly provided by statute ; [Clay’s Dig. 62, § 35,] — ■ « that where judgment shall be rendered, execution may be issued in the usual way, which shall be first levied on the property attached, if to be had, and then upon any other property of the defendant.” This section, it is true, relates to ancillary attachments sued out after the commencement of the action ; butit is evident, that such attachments are, in all respects, upon the same footing, with a suit commenced in the first instance by attachment.

The plaintiff in attachment may therefoi’e, at his election, sue out a venditioni exponas for the sale of the property attached, or he may take out an ordinary Ji. fa., which may be levied on the property originally seized, or on any other effects of the defendant. If the latter mode is resorted to, it is certainly proper that the clerk should endorse upon the writ, a description of the property attached, and of those by whom it was replevied, that the-sheriff may make demand of the property, and if not delivered, return-the replevy bond forfeited. This endorsement, however,, does not change the character of the writ, or deprive the sheriff of the power of levying on any other property of the defendant. If the property attached is not delivered up on demand, or is insufficient to satisfy the judgment, it would be his duty to levy on other property, if to be had.

No question arises upon the fact, that the sheriff delivered up to the defendant the property he had levied on, upon a threat of personal violence, as the Court left it to the jury to say, whether the life of the sheriff was in jeopardy, in accordance with the charge moved for upon that point.

Let the judgment be affirmed.