Clarke v. Gary

ORMOND, J. We understand it to be a settled principle, that the return of a sheriff to process, cannot be contradicted. This principle has been carried so far, that it has been held, that the defendant could not be permitted to show, that a writ had not been executed, but was remitted to his rights against the sheriff. The only relaxation of the rule in this court, has been, to permit the defendant against whohi a judgment had been obtained without service of process, or notice that the action was pending, to apply to a court of chancery for relief, provided he had a defence to the action, which from want of notice he was prevented from making. [Crafts v. Dexter, 8 Ala. 767.] In Figh & Blue v. Mead, 4 Ala. 279, it was held that a fictitious levy was binding, not only on the sheriff, but also on the sureties to a forthcoming bond; and that as against the plaintiff in execu102 tiou, they were estopped from denying that such á levy had been made, and could not be relieved in chancery. The sheriff may be permitted to amend his return, according to the truth of the case, provided rights acquired under it, are not thereby prejudiced ; but so long as the return is permitted to remain, it must be taken to be true for all purpo-poses, both as it respects the sheriff, and parties claiming rights under it. This rule the court in terms admitted, by responding in the affirmative to the charges moved for by the plaintiff, in which it was asserted (but the admission so made was immediately neutralized by the qualification annexed to it) that it would not be binding upon him, if it was a forgery, or was made by mistake. The sheriff is the executive officer of the court, and when he returns process to the clerk of the court, either in person or by his deputy, he cannot afterwards be permitted to aver it was not his act. It ■ may be conceded, that if a stranger should personate the sheriff, and impose a false return on the clerk, in the name of the sheriff, it would impose no liability upon him; but as no such fact exists in the case, it was doubtless put by the court by way of illustration. The de-fence of the sheriff appears to have been, that by the mistake of one of his deputies, a return was made on the attachment of a negro not levied upon, which mistake was also carried into the replevin bond ; but we are clear in the opinion, that this mistake, if it existed, could not defeat the rights of the plaintiff. Let us look for a moment at the consequences to which such a principle would lead. The creditor takes out an attachment, which is levied on property amply sufficient for the payment of his debt. By the mistake of the sheriff, or his deputy, other property is substituted for that actually levied on, insufficient to discharge the debt, and before judgment can be obtained the debtor absconds with all his property. The creditor has done all in his -power to do, by placing the process in the sheriff ’s hands, and the loss has been occasioned by his neglect of his duty. Surely it cannot be gravely contended, that it is a sufficient answer to the creditor, who has thus been deprived of the fruit of his judg [103] ment, that the loss was occasioned by mistake. To charge the sheriff, it is not necessary to show malfeasance, it is sufficient that he is guilty of non feasance — that he has not made a sufficient levy ; and whether this was caused by mistake, or accident, or was designedly made, is wholly unimportant. He cannot be controlled by the creditor, and necessarily acts at his peril: as between the sheriff and his deputies, doubtless these rules do not apply, and proof of a mistake might be made, so as to cast the consequences of a default upon the individual to whose conduct it was owing. The testimony of Brantly should have been excluded from the jury, if for no other reason, for irrelevancy. Its purpose was to show, that Thompson had no authority to make the return in his name. It would seem that he had such authority, as it appears he was in the habit of doing so. But we consider it entirely unimportant, whether he had, or not, such authority, as the question here, is not, which of these deputies is liable to the principal sheriff, for the consequen--ces of this act, but whether the sheriff is responsible to the plaintiff. Thompson and Brantly were both deputies of the sheriff; if therefore Thompson had authority to make the return in the name of Brantly, it is the act of Brantly, if he had not, it is his own act, and in either aspect it charges the sheriff, by whose authority the act was done. It could not be tolerated, that the rights of the plaintiff should be impaired by a controversy between these deputies, as to the authorship of an act, which if done by either, or both, would be alike binding on the sheriff. As it respects the levy made by Sergeant, we do not think it necqssary to inquire, in this case, how far the deputy of a sheriff, may impower another to act, because if the levy made by Sergeant, which was sufficient to satisfy the demand, was adopted by the deputy, who it appears went to Warsaw, to complete the levy by taking a replevy bond for the delivery of the slave to satisfy the judgment, it became his act, and the sheriff is responsible for the substitution of an inferior slave for the one levied on, and it is entirely unimportant whether this substitution was the effect of accident or design. If, on the other hand, he did not adopt the levy made by Sergeant, but made a new and substantive levy, the sheriff [104] is clearly responsible, it being shown to be insufficient, and that the defendant had ample means on which a sufficient levy could have been made. It may be added, that this last is the natural, if indeed it is not the necessary inference, from the return and the replevy bond. From this examination it appears, that the court .erred in the admission of the testimony of Brantly, and in the qualifications of, and additions made to the charges moved for by the plaintiff’s attorney. Let the judgment be reversed and the cause remanded.