Watson v. Knight

B. F. SAFE OLD, J. This was an action of trespass by the appellee against the appellants, for trespass in taking personal property. The complaint alleges a substantial cause of action. No objection was taken to it in the court below, but issue [354] was joined on pleas in bar to the merits. Advantage cam not be taken of its defects, if any, in this court. — Revised Code, 2811; Stewart v. Goode & Ulrick, 29 Ala. 476. The defendant, Watson, as constable, levied an execution from a justice’s court on a wagon and yoke of steers, claimed by the plaintiff, and in his possession at the time, and sold them as the property of W. M. Beason. To support his defense he offered evidence that on the day of sale' Beason claimed the property as exempt from levy and sale to him, as the head of a family, in the presence of the plaintiff, who said nothing. It had been previously shown that Beason formerly owned the property, and had sold it to Knight about a month before the sale by the constable, and had given him possession before the levy. The evidence offered was rightly excluded by the court. The claim of .exemption set up by Beason was as much a defense of his right to sell to the plaintiff, as the claim of property in himself, and did not call for contradiction. The defendant had a short time before been presented with the sworn claim of the plaintiff, and the declaration of Beason was an additional reason why he should not sell. If the property was the plaintiff’s, it was not liable for Beason’s debt.. If it was Beason’s, it was exempt from sale under execution. The charge asked by the defendant was properly refused. The facts therein stated might have been true, and the property not subject to levy and sale. The judgment is affirmed.