Goldsmith v. Lang , 25 Ala. 486 ( 1854 )

CHILTON, C. J. —

The ground upon which Acker was held to bail was, that “ he had fraudulently conveyed his estate or effects.” The plea, to which, it is insisted by the appellants, the demurrer should have been sustained, avers that the said Acker, on oath in writing, before a justice of the peace, denied the particular allegation which was sworn to by the plaintiffs in order to hold him to bail, to-wit, that he had fraudulently conveyed his estate or effects. The affidavit, which is made a part of the plea, among other things, avers, that he, Acker, “ has not conveyed or concealed anything for his own use, or to defraud his creditors.” This, we think, substantially denies the ground upon which bail process was sued out; but the old law required the defendant to go farther, and swear “ that he has neither estate, effects, or moneys, whereby to satisfy the debt, or liable for the same.” This the affidavit fails to do, but merely avers that “he has no moneys, estate, or effects, real or personal, in possession or in expectancy, within the State of Alabama, subject to levy and sale by execution.” He should have added, “ whereby to satisfy the debt”; for he may have money in Ms possession “not subject to levy and sale by execution,” nor concealed, “ whereby to satisfy the debt.” The affidavit failing to negative this idea, it is insufficient, when considered with reference to the oath requiring a schedule to be rendered, as by the third section, Clay’s Digest, p. 71. So that, under the old law, we think the discharge of Acker from custody was irregular.

But is such proceeding to be governed by the old law ? We think not. The party is in custody in virtue of proceedings had under the old law. He must now resort to some remedy for his discharge. This remedy does not affect the bail bond, for it would not be competent for the Legislature to impair its obligation; at least, no question respecting it arises here, since it was discharged by the delivery of the principal to the sheriff. In obtaining his discharge, Acker must become the actor, and the plaintiffs in the judgment the defendants. Suppose he had sued out a habeas corpus; this, being a new pxo-ceeding, must be governed by the new law as enacted by the Code. Or suppose he had sued out an appeal, and entered into bond, thus superseding the judgment and process; here he would obtain Ms discharge, but by the new law. — 23 Ala. 668. Now we can perceive no difference, in principle, between these cases and a resort to any other remedy to obtain his discharge which is in the nature of a new and distinct proceeding, in which the relation of the parties is changed, being reversed. This cannot be regarded as a continuous proceeding in the cause pending before the Code went into operation, but a new proceeding, as much so as an appeal, or habeas corpus.

We think it should be governed by the new law; and as it conforms to this, the-discharge was valid, and the sheriff should be protected. — Code, § 2182. It follows, that the demurrer to the first plea was properly overruled.

Let the judgment be affirmed.