Gay v. Burgess

BRICKELL, C. J.— A sheriff, who has seized property under an order in a detinue suit, by the express words of the statute, is bound, on the expiration of ten days from the seizure, if the plaintiff in the suit fails to take it into possession by the execution o'f a forthcoming bond, to restore it to the possession of the defendant. Code of 1876, §§ 2942-43; Hall v. Perryman, 42 Ala. 122. The duty of obedience to the order of seizure, and of restoration, in the event of the failure to execute the forthcoming bond, are equally imperative, and are each official. A failure to perform either duty is a misfeasance, involving the sheriff and his sureties on his official bond in liability for the damages the party aggrieved may sustain.— Governor v. Hancock, 2 Ala. 728; McElhaney v. Gilleland, 30 Ala. 183; Kelley v. Moore, 51 Ala. 364. The admissibility, and the effect of the evidence if admissible, that the ownership of the property was in the plaintiff in the detinue suit, is the important question of this case, and must control its final determination. As a general rule, in an action against an officer for neglect or other misconduct, the actual injury sustained is the measure of damages. Sedgwick on damages (6th Ed.) 634. A plaintiff in 579 execution, seeking to charge a sheriff for ,a failure to sell property on which he has levied, is not entitled to recover beyond the value of the property, unless a statute inflicts as a penalty a larger recovery. And it is competent for the sheriff to defeat a right of recovery by proof that the defendant in execution had no vendible interest in the property, or that it was in fact the property of a stranger and not subject to the execution.—Mason v. Watts, 7 Ala. 703. Compensation for the injury sustained is generally the measure of right, and in cases of the character to which we are referring, it is permissible to show the value of the'property, that the extent of the injury may be ascertained, or by showing the want of interest in the defendant in execution, to negative the existence of injury. But this case does not fall within the principle which controls that class of cases. A positive duty enjoined on the sheriff by the statute is the restoration of the property to the possession of the defendant, if the plaintiff fails for ten days to give bond for its forthcoming. The seizure of the property, depriving the defendant of possession, which is prima, facie evidence of ownership, before a trial and judgment against him, is an extraordinary remedy. Protection to him against its abuse, the statute carefully secures. The order of seizure cannot be made by the clerk until the plaintiff first makes affidavit that the property belongs to him, and gives bond with surety for the payment of all such damages and costs as the defendant may sustain from the wrongful complaint, if the plaintiff fails in the suit. The defendant has for five days the prior right to give bond for the forthcoming of the property to answer the judgment. This right must be lost by the expiration of the five days before the plaintiff can obtain possession by the execution of a forthcoming bond, and he can obtain it lawfully only by the execution of such a bond. If he fails to give the bond for five days, after the expiration of the five days allowed the defendant, “the property must be returned to the defendant,” are the words of the statute. The sheriff has no greater right to retain it, after the expiration of that period, than 'he had in the first instance to seize and take it from the possession of the defendant without the order of seizure, or without any process which would justify its taking. The duty imposed by the statute is plain and simple— it is restoration of possession to the defendant. The sheriff has no option, and it is not his province to inquire, nor has he authority to determine who is the owner, whether plaintiff or defendant. Indulging such inquiry and exercising 580 such authority, he eoulcl, because he believed the defendant was the owner, have refused to execute the order of seizure. What is the measure of recovery, in an action by the plaintiff for neglect or failure to execute the order of seizure, is. not a proper test of the measure of recovery by the defendant for a failure to restore possession. The sheriff is without authority to detain the property from the defendant. That order has expired, and he stands to the defendant, after a demand of restoration, in the attitude of a trespasser, especially when he has, in violation of the statute, delivered the property to the plaintiff without bond. The bond from the plaintiff is the security the statute affords the defendant for the restoration of the property, if there is judgment in his faror in the detinue suit. It is not for the sheriff to deprive him of this security, or to determine that he must fail in the suit, and therefore it would not profit him. When the sheriff refused to restore possession of the property to defendant,, and delivered it to the plaintiff, he overstepped and abused the authority with which the law entrusted him, and .was guilty of a wrong under color of his office, and must be regarded as a trespasser ad initio.—Six Carpenter's case, 1 Smith's Lead. Cases and notes 216; McMichael v. Mason, 13 Penn. St. 214; Russell v. Hanscomb, 15 Gray 166; Brackett v. Vining, 49 Me. 356. It would be against the policy of the law to suffer him to escape from the consequences of the wrong, by setting up the title of the plaintiff’ in the action of detinue, with which only the wrong connects him. If the defendant shall recover of him the value of property of which he is not the real owner, he has involved himself in the loss by his disobedience of the statute and a wanton abuse of the authority of the law. The court erred in receiving evidence of the title of the plaintiff in the-action of detinue, and in its first instruction to the jury.. The matter of the remaining assignment of error will not. probably be involved on another trial. Let the judgment be reversed and the cause remanded.