ment does not extend, i. e., where the execution is sent to another county, or where the lien has been determined, i. e., expired without revival, and, in such case, the execution is the lien from the time it comes to the officer's hands, just as it is on personal property, which is never barred by the lien of the judgment (Rev. Stat., title Execution, sec. 27), and would proba bly have to be governed by the same rules as apply to personal property: and clearly that the sale of land so situated would not be upheld by the lien of the judgment."

In Slocomb et al. vs. Blackburn et al., 18 Ark. 315, the execution was levied on slaves, a delivery bond given, returned forfeited, and no process sued out for more than five years, and the question being whether the lien of the levy was lost by delay, etc., the court said:

6

"The act of 20th March, 1839, (Dig. ch. 67, sec. 38,) provides that if the property be not delivered according to the condition of the bond, the levy shall remain a lien upon the property taken, for the satisfaction of the judgment into whose possession soever the same may have passed.' And section 39 of the same act, declares that the officer may seize the same property wherever it may be found, etc., and sell the same,' etc. But how long the levy shall remain a lien upon the property, the act does not provide. The statute being silent as to this, the duration of the lien must be determined by reference to such analogous principles of law as may be applicable. Our law does not favor the continuation of such liens for an unreasonable time. The lien of a judgment upon real estate is limited to three years. In State Bank vs. Etter, 15 Ark. 269, an execu tion issued from Pulaski to the sheriff of Hempstead, was levied on land, and returned without sale, by order of the plaintiff. The defendant died, and his administrator afterwards sold the land. The plaintiff afterwards attempted to enforce the lien of the levy by ven. ex., and this court held, that the plaintiff, having directed the return of the execution without sale after the levy, and taken no steps to revive the judgment, against the administrator, and sued out no process for the satisfaction

of the judgment for two years and a half after the levy, and near fifteen months after the land had been sold by the administrator, the lien of the levy was lost. The court remarked that as to judgments, the statute has limited the continuance of the lien, but with regard to execution liens, the statute is silent, and the court must necessarily determine, from delay and other circumstances, whether the lien has been waived or abandoned! Where personal property is levied upon, and, by direction of the plaintiff, the sheriff permits it to remain in possession of the defendant, and returns the levy without a sale, the levy will not continue to be a lien as against intervening rights of other persons, etc. Such lien is regarded as dormant and fraudulent as against other creditors. Perhaps, upon principle, where goods are levied on, and delivery bond taken, and returned forfeited at the return term, and the plaintiff permits the next ensuing term of the court to pass without taking out process to enforce the lien of the levy upon the goods, he might, by such neglect, lose his lien as against any intervening rights of other creditors or purchasers. But, be this as it may, in this case, the appellants sued out no process for more than five years after the return of the bond forfeited, and then they caused fi. fas. to be issued, taking no notice of the levies previously returned."

The result was, that the court held that the lien of the levy up on the slaves was abandoned and lost by the laches of the appellants.

These decisions point to the conclusion, which we think inevitable, that the duration of the lien of a levy upon land, and what interference, neglect and delay of the plaintiff in the enforcement of the lien, will displace it, and let in intervening rights of other creditors, etc., must be determined by common law principles applicable to liens of levies upon goods, with such modifications of the principles as must necessarily be made on account of the difference in the nature of the two species of property.

It is not necessary, in this case, for us to attempt to deduce, from the authorities which we have examined, any general and

fixed rule, to be applied in all cases, as to what delay of the execution creditor to sue out process to enforce a levy upon land by a sale, will displace the lien, and let in intervening incumbrances. It is sufficient to decide upon the facts of the case before us, whether the continuity of the lien was broken by the laches of the plaintiff in the execution.

Here, as above shown, three years and about eight months elapsed between the return of the execution under which the lands were levied on, and the suing out and placing in the hands of the marshal the vend. ex. under which they were sold to Fowler, during all which time no step was taken to enforce the levy, which was lying dormant in the clerk's office, and no excuse is given in the original bill for such delay. In the meantime, the judgment, under which Patterson purchased, was recovered, a fi. fa. issued, and levied on the lands.

We have found no adjudication, and know of no elementary principle of the common law, to support the lien of a dormant levy for so long a period, as against the intervening rights of a more diligent creditor. On the contrary, the authorities sustain the conclusion that the lien is displaced by such delay. Hood et al. vs. Winsatt, 1 B. Mon. 210; Owens vs. Patterson, 6 Ib. 490; Eldridge vs. Chambers, 8 Ib. 413; Wood vs. Gray et al., 5 Ala. 47; Riggin vs. Milligan, 4 Gilman 50; Presnell vs. Lander, 5 Ire. Eq. 255; Harding vs. Spivey, 8 Ire. L. 66; Spencer vs. Hawkins, 4 Ire. Eq. 291.

To uphold the lien of a dormant levy, for so long a time, as against intervening liens, would be to give it greater duration and tenacity than the legislature have deemed expedient, on grounds of public policy, to give the lien of solemn judgments of the courts, which is expressly limited to three years.

The conclusion is that the title of Fowler, as set up in the original bill, is inferior to that of Patterson.

2. We are next to decide whether the court below erred in permitting Fowler to file an amendment to the original bill, after the cause was at issue and set for hearing, setting up

another and distinct title, to the lands in controversy, than that relied on, and sought to be confirmed by the original bill?

The original bill was filed on the 15th June, 1848. The cause, after various and extended pleadings, which need not be particularly noticed, was finally brought to issue, on the original and cross-bills, at the December term 1855, and set down for hearing at the next term. At the next term no step appears to have been taken in the cause. At the ensuing term (on the 12th December, 1856) the following order was made:

"Comes the said complainant, and, on leave of the court, filed his amended bill in this cause, and certain exhibits accompanying the same. And on motion of said complainant, it is ordered that such of said defendants as have appeared to this suit, have leave to answer the matter set up in the amended bill, within two months from this date, and if they, or any of them, should fail to file such answer, within such time, the amended bill shall stand as confessed, and, at the next term, shall be formally taken and entered as confessed against such of said defendants as so fail to answer, within said period of two months; and it is agreed by the complainant, that such answers may be filed without being sworn to, and on any of said answers being filed within such period, then, at the end of said period of two months, the cause, as to said amended bill, shall be considered as standing at issue, and the clerk of the court is now directed, on motion of complainant, as soon as said term of two months shall expire, to enter in his name on the records, as by consent, a general replication to each or all of the answers that may be so filed, and on motion of said complainant, this cause is now set down for hearing at the next term, waiving any and all errors or irregularities in the setting down the same before issues are made, or answers in, to said amended bill, cross-bill, answers, exhibits and replications. And it is ordered that each of said parties have leave to take the depositions of witnesses, to be read as evidence on such final hearing. Ordered that this case stands continued until next term." The amended bill, after reciting the previous pleadings and

proceedings in the cause, alleges, in substance, as follows:

That on the 8th of May, 1843, after the return of the fi. fa., of 4th February, 1843, which was levied on the lands in controversy, as stated in the original bill, Stewart sued out another fi. fa. upon the judgment against Stone, returnable to the October term following, upon which the clerk endorsed the levy upon the lands made under and returned upon the fi. fa. of 4th February, 1843, and which was placed in the hands of Thomas W. Newton, marshal, 9th May, 1843, who levied it on the lands in controversy, and other lands; that Stone claimed the benefit of the appraisement act, the lands were offered for sale, and failing to bring two thirds of their appraised value, the marshal returned the fi. fa. without sale.

That on the 24th October, 1844, and after the expiration of the twelve months stay allowed by the appraisement act, a ven. ex. was sued out, reciting the previous levy, appraisement, etc., and commanding the marshal to sell the lands, etc., returnable first Monday of May, 1845, which was returned 10th March, 1845, without sale, etc.

That on the 10th March, 1845, another vend. ex. was sued out, for the sale of the lands levied on and appraised as aforesaid, returnable first Monday of August, 1845, which, on the 19th June, 1845, was returned without sale.

That on the 24th June, 1845, or about that time, another writ of vend. ex. was sued out, reciting the levy made and returned upon the fi. fa. of 4th February, 1843, as stated in the original bill, and other matters proper for such a writ to recite, which, on the next day, was delivered to Henry M. Rector, marshal, etc., who, on the 5th July, 1845, duly advertised said lands for sale, and pursuant thereto, at the court-house door of Jackson county, on the 16th of August, 1845, sold said lands to Absalom Fowler; that the amounts bid by Fowler were paid to the marshal, and by him applied to the payment of said ven. ex· and judgment; all which was to be made apparent by exhibit H, a copy of said execution and return, when it could be found, the original having been lost or mislaid, or if not found, the