BRALEY vs. CLARK, 22 Ala. 361

LIGON, J. Tbe slave in controversy was levied on at tbe ‘suit of Braley against Francis Inge, commenced by attachment. After tbe attachment was levied, Lincoln Clark made a replevy bond, and took him out of tbe custody of the sheriff. Judgment having been rendered against Inge in tbe suit in favor of Braley, tbe sheriff demanded tbe slave of Clark, who failed to deliver him, but offered to interpose a claim to try tbe right of property.

Tbe sheriff, however, refused to ■allow tbe claim to be interposed, and returned tbe bond “forfeited.” After this return, tbe Circuit Court ordered tbe sheriff to receive and return into court tbe claim bond of Clark, and caused tbe claim suit to be placed upon tbe docket. At tbe next succeeding term, tbe paintiff in error moved to dismiss tbe claim suit; which motion was overruled, and at a subsequent term a trial was bad in this suit, which resulted in a verdict and judgment in favor of the claimant.

Upon these facts tbe question arises, whether a stranger to tbe attachment suit, who has replevied tbe property attached,, can, after judgment on tbe attachment, and after tbe property is demanded on tbe replevy bond, interpose a claim to tbe property replevied, without having first surrendered it to tbe sheriff, according to tbe condition of bis bond ? In tbe case of Kinney v.

Mallory, 3 Ala. 626, it was held by this court, that a stranger to tbe attachment suit might., under tbe acts of 1833 and 1837, well make tbe replevy bond required by our attachment laws; and that when such bond was so made, it was subject to such rules as would govern it if made by tbe defendant in attachment himself.

The-condition of tbe bond requires a delivery of tbe specific property replevied, if tbe defendant is condemned in tbe attachment suit; and until this is done, tbe bond remains in full, force against all tbe obligors, and tbe property is out of tbe custody of tbe sheriff, and consequently is not so situated as to allow a claim under our statutes to be interposed. To authorize such claim, tbe property must be either in tbe actual or constructive possession of tbe officer of laAV under process.

In tbe case under consideration, it bad been taken out of bis possession by the defendant in error, under the replevy bond, and by him retained when demanded by the sheriff. It is true he might, under the condition of his bond, surrender the slave to the sheriff in discharge of his liability, and having thus placed it in the custody of the officer, he could, if he were disposed to do so, interpose his claim, and try the right to it.

But having elected to forfeit the condition of the bond, thereby subjecting himself to a liability to pay the judgment rendered against Inge, the plaintiff in the attachment suit has an unquestionable right, under our statute, to sue out execution against him, and proceed to make his money out of any property of the obligors in the bond he may be able to find, regardless of the slave levied on by the attachment.

If he does so, neither the defendant in the attachment, nor the obligors in the replevy bond, will be allowed to force him into a trial of the right to property which he does not seek to charge with the payment of his judgment. It results from these views, that the Circuit Court erred in disallowing the motion to dismiss the claim suit; and as this error must prove fatal to any further proceeding in that suit, it is unnecessary to examine the assignment of error predicated on the charge of the court on the trial of the claim in the court below.

It only remains to add, that the judgment of the Circuit Court is reversed, and the claim of the defendant in error to the slave in controversy is here dismissed.