Womack v. Bird

STONE, J. When this case was formerly in this court (51 Ala. 504), it was rightly settled that, under the plea of not guilty of a trespass de bonis asporiatis, the defendant can not be allowed to prove, in mitigation of damages, or for any other purpose, that the act complained of was done under legal process. As the record then stood, it presented only the single plea of not guilty. When the case returned to the court below, a second plea was interposed, justifying the seizure of the goods under an attachment for debt, which, the plea averred, was returned to the court from which it issued, according to the mandate thereof. When the case was on trial, and the attachment was offered in evidence under the plea of justification, it was shown and admitted, that the attachment was not in fact returned, until some sixteen months after its issue, before which time this suit had been commenced. The authorities are unbroken that, to maintain the defense of seizure under mesne process, the officer invoking it must have duly returned the process, within the time prescribed by law, or must show a sufficient excuse for not doing so. In McAden v. Gibson, 5 Ala. 341, this court [506] said: “ It is insisted that the second and third pleas are bad, because they do not allege that the attachments, under which the defendant justifies the detention of the slaves in question, were returnable, or in fact returned to any court. It has been held, in many English cases, that an officer can not justify under mesne process, after the day appointed for the return, without showing that it was returned, although with respect to writs of execution the law is otherwise. The cases cited show the rule, as stated, to be too firmly settled to authorize us to refuse its recognition. When restricted in its application to the officer charged with the return of the process, it can be productive of no injury or inconvenience. But, even in such cases, we will not say that it would not be allowable for the officer to excuse the return of a writ, by alleging its loss, or something, the effect of which would be to prevent its return, without the fault of the party charged with that duty.” In Kirksey v. Dubose, 19 Ala. 43, it was said : “ It is well settled, that if a sheriff justifies under mesne process, after the time appointed for its return, he must either aver its return, or show some legal excuse why it was not returned.” — See, also, Young v. Davis, 30 Ala. 213; Rowland v. Veale, 1 Cowp. 18; Clark v. Foxcroft, 6 Greenl. 296; Russ v. Butterfield, 6 Cush. 243; Williams v. Babbitt, 14 Gray, 141; 2 Greenl. Ev. § 597. The attachment was levied on cotton and corn; and the defendant introduced testimony tending to show that, after the levy, and before the return day of the attachment, the plaintiffs in attachment and the agent of the defendant (plaintiff in this suit) agreed on terms of compromise; by which it was agreed, that the corn was to be released from the levy, and left where it was seized, for the benefit of defendant, and the cotton was to be delivered to the plaintiffs in attachment. Nothing was said as to what was to become of the attachment suit. There was testimony, denying the making of such agreement of compromise, and disputing the agency under which it was claimed to have been made. The officer, Bird, delivered the cotton to plaintiffs in attachment. The proof tends to show that some of the corn had been removed, and disposed of by the officer, before this agreement was made. It is not shown what became of the residue of the corn. These facts are relied on, as an excuse for not returning the attachment, and as an equivalent of the averment in the plea that the attachment was duly returned. We do not think this a sufficient excuse for not returning the attachment; and hence we hold, that the Circuit Court erred in allowing the attachment and levy to go in evidence to the jury. The questions raised on the appointment of the special [507] coroner, and on the direction of the attachment, are rendered immaterial by this ruling. We may add, however, that we are not convinced there is any thing in those objections, under the statutes of force when the attachment was issued and levied, and still unchanged. But we need not, and do not, decide these questions. The third plea does not set out, or state, the contents of the attachment, under which the levy was made, nor does it set forth the authority under which the special coroner acted. Hence, it is not a plea of justification under process. There is nothing in this plea, which shows the attachm was issued by an officer authorized to issue it, or that it was so framed as to authorize such levy, or that Bird, who levied it, had any authority therefor. Its sufficiency, as a defense, rests on the alleged compromise, the terms of which are stated above. Its language is, “ by which compromise and settlement, the cotton levied on was agreed to be, and was turned over to said Bell & Moore” [plaintiffs in attachment!, “ to be by them sold, and applied towards the payment of the debt of said Ann M. Womack to said Bell & Moore, sued for in said attachment suit; which was accordingly done, and the said Ann M. Womack duly credited by said Bell & Moore with the net proceeds of said cotton; and that by said compromise and settlement, the levy on the corn was to be released, and said corn left where it was when said levy was made ; and said levy on said corn was released accordingly, and the corn left where it was when levied on under said attachment.” It is not averred that Mrs. Womack agreed, as one of the terms of the compromise, to surrender or abandon any claim she may have had for damages, for the trespass and seizure of her goods; but the plea seeks to give this effect to the compromise, beyond the letter of the alleged agreement. This is extending the effect of the compromise too far. One whose property has been tortiously taken, may receive it back, in whole, or in part, or may consent to have it turned over to another, without impairing his right, thereby, to sue for the trespass. Restoration of the goods does_ not heal the wrong done by the trespass. - Ewing v. Blount, 20 Ala. 694. Such restoration of possession to the owner, or resumption by him, is a proper inquiry in mitigation of damages. It is no bar to the action. The demurrer to the third plea should have been sustained.— 2 Greenl. Ev. § 635 a. As mitigation, testimony of the delivery of the chattels to Mrs. Womack, or to another with her authority, or that of her authorized agent, was allowable under the general issue. Agency can not be established by the mere declarations of the one assuming to be agent. It may be implied from his [508] previous employment in similar acts, or from subsequent acquiescence. — Fisher v. Campbell, 9 Por. 210. It is, like any other disputable fact, always a question for the jury, when it is sought to be established by parol proof. — 1 Brick. Dig. 55, § 281. Eeversed and remanded. This judgment to take effect as •of February 13, 1877, when this cause was submitted.