McCullough v. McClintock

SOMERVILLE, J. Where personal property has been levied on by a sheriff or constable invested with due authority, the levy is not invalidated, as between the parties, by-leaving the property in the custody of the defendant, as a special bailee. The only persons who can complain of this conduct on the part of the officer would be the plaintiff in execution, whose rights may have been prejudiced, and the vendees and creditors of the defendant. — Freeman on Execution, § 261; Campbell v. Spence, 4 Ala. 543. The question here is, whether the wife of the defendant may become the sheriff’s bailee, in the absence of any special consent on the part of the husband. In this case, the mule, levied on as the husband’s property, was left by the constable in the hands of the wife, in order to save the costs of keeping, she agreeing to keep the animal and have it forthcoming at the house of her husband on the day of sale. This was in November, 1886 — -prior to the enactment of the present married woman’s law. — Code, 1886, §§ 2341-2356. While the wife may have incurred no personal liability by her contract as bailee, she certainly acquired no right to misappropriate the property, or to refuse to restore it, so as to destroy the special property vested in the constable by the levy. The lien of the levy was unaffected by her disability to incur all the contractual liabilities of a bailee or depository, and the husband was bound to restore the mule to the officer [569] of the law, if in his possession. There seems to be no reason, for the purposes of this case, why the wife could not act as bailee of the constable without the consent of her husband, such agency involving no duties or services inconsistent with those appertaining to the marital relation. Story on Agency, (8th Ed.) §§ 7, 485; Story on Bailments, (8th Ed. §162; Schouler on Bailments, p. 32; Pullam v. State, 78 Ala. 31; 1 Amer. & Eng, Encyc. Law, 334-335. The court erred in the charge given. Reversed and remanded.