Derrett v. Alexander

GOLDTHWAITE, J. — Whatever a party in the possession of property says, which tends to explain the act or character of his possession, is admissible as original evidence, being considered part of the res gestee. — Beal v. Ledlow, 14 Ala. 527. Here the person in possession of the mare says, at the time the levy is made, that she was brought to his house by the defendant in attachment; and we must consider the declaration, in view of the circumstances under which it was made, as equivalent to saying that he did not hold the property as his own, but as bailee for the person who placed it in his possession ; and under the rule we have referred to, it was properly admitted. Neither was there any error in allowing the contents of the attachment to be proved. The loss was fully established, and whatever doubts may formerly have been entertained as to the admissibility of secondary evidence to establish a record in case of its loss or destruction, the doctrine is too well established at the present day to be questioned. — The Inhab. of Stockbridge v. The Inhab. of West Stockbridge, 12 Mass. 400; Donaldson v. Winter, 1 Miller’s La. R. 136-145; Jackson v. Cullum, 2 Black. 228; Newcomb v. Drummond, 4 Leigh 57-60; Adams v. Betz, 1 Watts 421. So, also, in relation to the rejection of the evidence which was offered on the part of the claimant to prove that the ruaré had died before the trial of the right before the justice. We have held, that the death of a slave pending an action of [269] detinue does not affect the right of recovery, (White v. Ross, 5 S. & P. 123; Bettis v. Taylor, 8 Por. 564; Bell v. Pharr, 7 Ala. 807), and the same rule must apply in trials of the right of property, where the thing levied on is destroyed, or dies, after the claim is put in. We think it clear, also, that the former judgment, by which the mare was found subject to the levy of the other attachment, was conclusive evidence that she was subject in the present case. The levies were both made at the same time, and the parties and the issues were the same. The rule is, that an adjudication of a court of competent jurisdiction, between the same parties, on a particular point, is, as matter of evidence, conclusive upon such point.' — 3 Cow. & H. Notes to Ph. Ev. 828, and cases there cited; Rake v. Pope, 7 Ala. 161. The charge requested by the claimant we understand to assert the proposition, that where two levies are made upon the same property, and a trial of the right is had in one of them, the property condemned, and its assessed value paid by the claimant, such payment can be set up as a complete defence on the subsequent trial. That an officer may levy two or more attachments or executions upon the same property, is undeniable; and it would be a great hardship, in many cases, if the claimant, on the failure to sustain his claim, should be subjected to pay the value of the property in every case in which it was levied on ; and it is probable that a court of equity would, if it became impossible to restore the property from unavoidable accident, afford relief upon principles analogous to those which obtained in Garey v. Frost & Dickinson, 5 Ala. 636. But however this may be, we are satisfied that the payment of the assessed value of the property in one case, does not, of itself, sustain a claim set up in another.' — ■ The issue is simply, whether the property was subject to the execution at the time of the levy; and had the payment been made before then, we do not see how it could avail the claimant, unless it had the effect of divesting the title of the defendant in execution ; and certainly the claimant could gain no right to the property, as against him, by the mere act of paying its value to the -sheriff, and if he was not divested of the title, it would be subject to the execution, if in his possession, either actually or constructively, when the levy was [270] made. There was, therefore, no error in the refusal of' the court to give the charge asked. The judgment, however, which was rendered by the court upon the verdict, was incorrect in several respects. It should not have been rendered against the surety on the replevy bond, for the reason, that that bond has no connection with the proceedings on the claim. Indeed, it was irregular to allow a claim to be put in until the property replevied had been delivered to the officer according to the condition of the replevy bond (Braley v. Clark, 22 Ala. 361); and had the trial of the right of property been determined in favor of the claimant, it would not have discharged the surety on the re-plevy bond from Ms obligation. — Braley v. Clark, supra.— Neither was the court authorized to render an alternatve judgment for the assessed value of the property against the surety on the certiorari bond. Under the fourth section of the act of 1816, Clay’s Digest 315, in cases of appeal and certiorari, where the judgment of the justice is affirmed, it is rendered against the sureties on the bond ; but it is evident from the language of the act, that it contemplated only those cases in which execution could issue from the appellate court. And as the right of property may be tried before the rendition of judgment on the attachment, and the main judgment upon such trial is the condemnation of the property to the judgment which has been or may be rendered on the attachment, we see no other course than to certify the judgment in the Circuit Court, with a procedendo, to the justice, who issues execution ; and on the failure of the defendant in attachment to deliver the property, the officer endorses such failure on the claim bond, which is filed with the justice, and execution issues on it for the assessed value of the property, as fixed by the Circuit Court, against the principal and surety, if such value does not exceed the amount of the judgment in attachment and costs ; and if exceeding that amount, then for the judgment and costs. We arc aware that in Seaman v. White, 8 Ala. 656, it is intimated that the judgment on the trial of the right of property upon attachment is simply a condemnation of the property, without any assessment of its value ; but the same necessi ty exists for ascertaining its value as in case of execution from courts of record, as required by the [271] third section of the act of 1828 (Clay’s Digest, 213, § 64), and the attachment law (Clay’s Digest, 57, 58, § 11,) expressly provides, that in case claim is made, and bond given for the trial of the right of any property levied on by attachment, the same proceedings shall be? had as in case of the trial of the right of property levied on by execution, — that the property shall remain in possession of the claimant, — that the bond shall be lodged with the clerk, or justice, where the attachment is returnable; and should the condition of the bond be forfeited, the officer must enter the endorsement of forfeiture, and the clerk or justice shall issue execution on the same against all the obligors thereto. Under this statute, it seems to have been the intention of the Legislature to place the trial of the right of property upon attachments on the same footing as the trial upon executions; and the course we have adopted is-the only one which will fully carry out the intention of the statute. For the costs in the claim suit, however, as well as the costs on the trial of the right before the justice, execution can properly issue from the Circuit Court, and for these costs it is the duty of the court to give judgment, and award execution, as well against the sureties on the certiorari bond, as against the principal.- — Clay’s Digest, 315, §§ 11, 19. It is urged for the appellant, that the condition of the cer-tiorari bond in the present case was not such as to authorize a judgment against the surety ; but there is nothing in this objection. There is no statute which prescribes the condition of a bond of this character; and in the present case it is broad enough to sustain a judgment for the costs, being, in effect, to pay and satisfy the judgment in the Circuit Court. From what we have said, it is apparent that the judgment rendered by the Circuit Court should not have gone farther than a condemnation of the property to the satisfaction of the judgment on the attachment, and against the claimant and his sureties on the certiorari bond for the costs we have specified ; and it would have been proper to award a procedendo to the justice. Under our practice, it is competent to correct errors of this character here, and to render the right judgment (Code, ■§ 3034): which, as no motion was made to correct the judgment in the court below, must be done at the cost of the appellant who has brought the case to this court.