Cox v. Easley

GOLDTHWAITE, J. 1. With reference to that portion of the deposition excluded by the court, it is unnecessary to say more, than that the declarations of the plaintiff in regard to the property, made after the trespass complained of, in our judgment, were not admissible as part of the res gesta. The circumstance, that the plaintiff became the bailee of the sheriff, after his levy on the property as belonging to Herndon, had been explained by the plaintiff’s assertion of title to a moiety, and its recognition by that officer. This assertion could derive no additional strength from the continued assertion, nor was any fact disclosed to weaken the former claim, so as to render the continued assertion a part of any subsequent transaction in relation to the same property. His declaration then, at the time of the sale, stands unconnected with any matter then transpiring, as entirely as it would if the sale had been of a different chattel. There is no error in this particular. 2. The charge that the official act of the sheriff, in not selling the entire property, was no evidence of the plaintiff’s right, we understand as referring to what took place at the sale day. Certainly, if the plaintiff’s declarations at that time, inducing the action then had, are not admissible, the concession of their truth by the officer, was not a circumstance to go to the jury. In truth these matters stand on precisely the same ground, and have no more connection with the question of title, than would the plaintiff’s assertion, and a concession of it by a third person, at any other time or place, after the trespass. The test of their inadmissibility is, that both the one and the other could be made, or induced to suit a particular emergency. 3. The other charge on which the case seems to have been decided, assumes, that if the plaintiff showed no other title to the property than that derived from its deposit in his' possession by the sheriff of Benton, that the action could not be sustained — or in other terms, that he must, under such [368] circumstances be considered as the mere servant of that officer ; and that the suit for the wrongful'taking should be in his name. It is thus argued in this court, and many of the cases cited from Massachusetts and New York sustain this precise position. We infer that in neither of those- States is there enactments authorizing the sheriff to surrender property levied on, to the defendant, on replevy or forthcoming bonds; and presume, that in both, this officer is responsible, as at common law, for the custody of property when seized under process. That the officer may constitute a bailee for property when seized, is not an open question, and he may lawfully contract with the bailee to. keep it safeld, or to deliver it, either at a fixed period, or on demand. [Whitsett v. Womack, 8 Ala. Rep. 466.] The effect of a statutory re-plevy, or rather delivery bond, was somewhat considered in Rives v. Wellborn, 6 Ala. Rep. 45, where it was held the giving of such a bond, invested the surety of the defendant in attachment with a sufficient title to authorize a claim when the same property, before the time of delivery, was af-terwards levied on by a subsequent execution, on the ground that by the first levy the property was placed within the custody of the law, and could not afterwards be levied on. My own impression, (and I speak entirely for myself,) has been, ever since this decision, that the statutes would have been better carried out by recognizing the validity of a subsequent levy by the same sheriff, or a succeeding one, and holding that to be a discharge of the 'delivery bond; which I understand to be the effect of the previous decision in McRae v. McLean, 3 Porter, 138. However this may be, it is certain the decision in Rives v. Wellborn, goes no farther than the holding, that property deliverd on the statutory delivery or forthcoming bond, is, notwithstanding, in custody of the law; and we apprehend, the effect of any other bailment must be, that the sheriff is in precisely the same condition with respect to the defendant in execution or attachment, and other subsequent attaching creditors, as he would be if no bailment had been made. We say, with respect to the defendant, whose goods are seized, and other subsequent creditors, because we do not well see how a sheriff can affect their • rights by a bailment to a stranger. Yet, as between himself [369] and his bailee, we do not perceive any valid reason why he may not bind himself not to call for the re-delivery until the expiration of a definite period. Such a bailment was adjudged a legal one in Whitsett v. Womack, before cited; and it is now said, (and so many of the cases referred to by the defendant, hold,) that such a bailee cannot maintain an action in his own name against a wrong doer, but that the action for the redress of an injury to the possession of the bailee must be in the name of the sheriff. In the principal case cited to sustain this proposition, and where all the others are examined, it is said, the defendant in execution has the general property, and the sheriff only a special property. Hence it is inferred there is no intermediate condition, so as to authorize the sheriff’s bailee to sue. [7 Cowen, 294.] This seems to us a mistaken view of the subject, for can it be said that one who has only a special property is unable to bail the thing to another ? It does not admit of question, we think, that the sheriff may require his bailee to deliver the thing bailed according to the contract and that he is under no legal obligation to pursue one who takes the property from the bailee, unless this obligation arises out of the terms of the contract. If then he pursues his bailee to a recovery, can it be said the bailee is without remedy ? We are free to admit, that the custody of a mere servant will not enable him to maintain a suit, but this rests upon the circumstance, that he, as a servant, is not responsible to his master ; but on principle it would seem, that whenever there is a liability to the bailor, the bailee is entitled to his action against the wrong doer. This principle governs the decision of this court in Hare v. Fuller, 7 Ala. Rep. 717, and is fully recognized by the text writers. See also, Bac. Ab. Trespass C.; 1 N. H. Rep. 289; 2 Ib. 56; 3 Conn. 160. Having come to the result that a bailee is authorized to bring trespass for an injury to the possession, whenever he is amenable himself to the bailor, it remains to consider if such is the position of this plaintiff in regard to the sheriff. That it is, seems clear from the fact, that his liability was not only [370] conceded, but provided for by the deposit of money, which would have been forfeited if the property was not returned. This view shows the error of the charge we are considering* and its effect must be a reversal of the judgment. Judgment reversed and cause remanded.