Governor v. Gibson

COLLIER, C. J. We have repeatedly held, that a sheriff or other officer who levies a fieri facias or other process on personal property may be sued in detinue by one who claims a legal right to it; and the action may be prosecuted in the ordinary mode of proceeding, or according to the provisions of the statute upon the subject. Bissell & Carville v. Lindsay et al. 9 Ala. Rep. 162; Easley v. Dye and Dye by their next friend, at the last term. Here the suit by Me Aden against the defendant, Gibson, was instituted as the statute provides, and the slaves taken into the possession of the cor — 332 — oner, under the mandate of the writ; and the first question that arises is, whether the divestiture of Gibson’s possession under the circumstances of the case, furnishes an answer to the present action. A sheriff who siezes property is bound to retain it to answer the exigency of the precept under which he acted, or show a legal excuse for having parted with it. But it certainly was not indispensable to his protection in the present case, that he should have replevied it by executing a bond with surety, pursuant to the act of the legislature. It was quite enough that he gave notice to Alford, the party at whose instance he levied on the slaves, and called upon him for indemnity, and if Alford declined a compliance with the requisitions, he might well refuse to replevy. Such a bond as the defendant was required to give, imposed a personal responsibility upon him, at least equal to the value of the slaves and their hire, and being an agent of the law, and as such, a mere custodian, he was not bound to incur it. Whether McAden had executed the bond upon which the order for the seizure of the slaves could only be regularly made, is not in the present case a material inquiry. If the writ under which the coroner acted, was regular upon its face, and directed him to take the slaves, the defendant was under no obligation to look behind it, to ascertain whether the pre-requisite steps had been complied with. The notice to Alford would have enabled him to scrutinize the proceedings, and if he was not sufficiently vigilant, the defendant cannot be visited with the consequences of his neglect. Nor was it incumbent upon the defendant to inquire, whether the special coroner who executed the process against him, had taken the oaths of office, and executed an official bond, even conceding that these were essential to confer an authority de jure. By the seventh section of the act of 1833, “prescribing the duties of coroners,” it is enacted, “that the county courts shall have power to appoint a coroner, in cases where there shall be no coroner in said county, when it may become necessary for any process to be served on the sheritf.” Clay’s Dig. 159, § 6. As the defendant was sheriff, this enactment was an ample warrant to the judge of the county court to appoint a coroner for the purpose of executing the — 333 — writ at the suit of McAden against him. It may be well questioned whether such special appointee should be required to give bond for the performance of the duty devolved upon him; but if the law contemplates it, the judge, and not the defendant, should see that he executes it. The mere ap-, pointment makes him an officer defacto, pro hac vice, and this is quite sufficient as it respects third persons. In a suggestion against a sheriff, under the statute, that with due diligence he could have made the money on a fieri facias, it has been held to “ be entirely competent for the sheriff to show, as well before as after levy, that the money could not be made. The levy will not estop him from denying that the property seized was the defendant’s. In taking it he merely affirms that he believes it is subject to the execution ; and when charged with the want of diligence, it is incumbent on him to show that he was mistaken.” Leavitt v. Smith et al. 7 Ala. Rep. 175. “Prima facie, he would be charged on account of his levy; but he could discharge himself as in any other case of tortious levy, by showing that the defendant in execution had no property in the goods, and that the party from whom they were taken, had been reinvested with the possession. Bristol v. Wilsmore, 1 B. & C. 514, is conclusive to show that the owner of goods may retake them from the sheriff, even after a levy at the suit of another. This being the law, it would operate most oppressively, if such an officer could not defend himself by proof of the same facts which would defeat his action against the true owner, subsequently taking them from the sheriff; and which would render the sheriff liable, if sued in the first instance.” Mason et al. v. Watts, 7 Ala. Rep. 703. These citations are most significant and direct to show, that it was allowable for the defendants to resist a recovery, by proof that the slaves were the property of McAden. We have seen that the official character, and the manner in which he acquired the possession of the slaves, did not exempt him from liability to have them taken from him by process in the action of detinue ; and that he was not bound to replevy; especially if the party at whose suit he had seized them was passive after notice of the levy. Proof of these latter facts, irrespective of McAden’s title, would furnish an unquestionable defence in — 334 — the present action. Wentworth v. The People, 4 Scam. R. 550; Merritt v. Miller, 13 Term. Rep. 416; Lents v. Chambers; 5 Ired. Rep. 587. The idea that a sheriff is estopped by his levy from denying under all circumstances, that the property levied on was not liable to satisfy the plaintiff’s demand, is founded on a false hypothesis. None of our decisions, or any other that has been brought to our notice, lay down the law thus broadly. The presumption is, that an officer charged with the execution of process has done his duty, and when he has seized property under its authority, that it was liable to answer the exigency; and upon this assumption all courts proceed. But the levy is not regarded as conclusive, record evidence of the defendant’s title — its effect is to raise a strong presumption against the officer, which he must repel by proof. Arnold v. Pond, 4 Shep. Rep. 249. See also 12 Mass. Rep. 196; 16 Id. 8; 11 Pick. Rep. 524; 19 Id. 522. The third plea of the defendants, alledges that the sheriff Gibson ceased to retain the possession of the slaves levied on, almost two years previous to the execution of the bond by them; in other words, that a conversion (if any) occurred before the bond had an existence; and they are not therefore liable for such conversion as a breach of their undertaking. In Dumas & Co. v. Patterson et al. 9 Ala. Rep. 484, it was held, that where a sheriff appropriates money collected on an execution, and then renews his official bond, the sureties in the renewed bond are not liable for his default; but the plaintiff must proceed against the sureties in the bond, under which he was acting when the conversion occurred. This case is directly in point, and shows that the demurrer to the plea was properly overruled. It is difficult to perceive of any objection to the answer of the witness, H. F. Shelton, to the second direct interrogatory contained in his deposition. The facts which he narrates are altogether pertinent, and stated not by way of information or belief, but professedly upon his own knowledge of the transactions between W. H. Shelton and McAden. These transactions were the advance of money by the latter to the former, and a sale of the slaves attached in payment of this indebtedness. It would be too much to assume that the wit — 335 — ness was testifying from hearsay, because in answer to one of the cross'interrogatories, he says, “ I derived the most of my information in regard to the connection of W. H. Shelton and McAden by said Shelton himself; besides, I copied bills of sale, agreements, &c. between them.” Now, although the witness says he derived the most of his information from W. H. S., we cannot assume that the facts positively stated in answer to the second interrogatory were thus acquired; especially as they are such as may very well be within his personal knowledge. What we have said in respect to the notice to Alford of the seizure of the slave while in Gibson’s possession, under the process in detinue at the suit of McAden, was suggested by the pleadings, in which such notice is distinctly alledged; but we did not intend to be understood as asserting, that a notice of the seizure was indispensable to the defence. As a precautionary step it was altogether proper, that the sheriff might call to his aid the plaintiff in attachment in making defence against the action of detinue; but the omission to give the notice would not make him chargable with the value of the property. It is a good defence for a sheriff, when sued by the plaintiff in the proaeeding, for not making goods available to satisfy process under which they were seized, to show that they were taken from his possession under a writ regularly issued; and the further duty we have seen, does not devolve upon him to show that after they were taken from him, they were legally disposed of. If there was evidence implicating the integrity and good faith of the sheriff, then it might be necessary to his vindication to prove a notice, or something equivalent, to relieve himself from the imputation of mala jides. But it is not pretended that the defendant Gibson has not acted honestly, and we can see no ground on which it can be maintained, that the second charge is too restricted, and excluded from the jury the consideration, of important facts. It is not necessary to consider whether the circuit court laid down the true rule by which the damages should be measured, in the event the plaintiff was entitled to a verdict. However this may be, the jury have determined that he is not entitled to recover any thing, and if the rulings of the — 336 — court were in other respects proper, he cannot complain that he has been prejudiced. The charge could not have misled the inquiries of the jury upon the primary question, and as to the subsequent one, viz : the extent of the damages, it was not considered by them. It is insisted for the plaintiff in error, that to let in evidence of the fact that the slaves attached were not the property of the defendant in the attachments, or that they were taken from his possession by the process in the action of de-tinue, the returns should have stated the fact; especially as it appears that he had parted with the possession before the attachments were returnable. This argument is supposed to be maintainable upon the ground that the returns are quasi records, and cannot be contradicted by evidence aliunde; and to authorize its admission, the sheriff should have amended his returns upon leave of the court for that purpose. The returns of the sheriff are dated of the day when the attachments were placed in his hands, and before the action of detinue was instituted by McAden; so that he could not at that time have affirmed that his possession of the slaves had been divested. True, he might have stated the fact as an addition to his retürn, as he retained the attachments in his hands several months after the seizure by the coroner; and it was altogether proper to do so, for the purpose of informing the plaintiff of the fact. But a failure to perform this duty, cannot conclude him from showing what disposition he made of the slaves. Such evidence does not contradict the fact of his levies; but is matter extrinsic and dehors the record, and is not inhibited by the rule for which the counsel for the plaintiff in error contends. In Evans v. Davis, 3 B. Monr. Rep. 344, the general rule was admitted, that a sheriff is estopped from controverting the facts embraced in his return, and which were within the sphere and connected with the discharge of his duty; but it was held, that a sheriff when sued as a trespasser for the seizure of property under an execution, may prove facts dehors his return, and not inconsistent therewith. See The Governor, use, &c. v. Bancroft et al. at this term, in which the — 337 — effect of such returns is largely considered, with a reference to the authorities. The first breach alledged in the declaration is sufficiently comprehensive to embrace every fact stated in the record, so far as these can avail to aid the plaintiff’s recovery; and the bill of exceptions shows, that the entire acts and omissions of the sheriff in respect to the attachments, were fully litigated before the jury. It is obvious, then, the plaintiff has not been prejudiced by sustaining the demurrer to the second breach ; and according to repeated decisions of this court, it furnishes no ground for the reversal of the judgment, whether erroneous or not. The other questions arising upon this confused, and unnecessarily voluminous record, which are not specially noticed, are embraced and decided by the points of law we have considered; and the result is, that the judgment of the circuit court is affirmed. Chilton, J., not sitting.