Hendricks v. Chilton , 8 Ala. 641 ( 1845 )

GOLDTHWAITE, J.

"We are not satisfied that the decree dismissing the bill can be sustained, upon the ground assumed by the Chancellor; for, as it' seems to us, the lien created by the levy of an attachment, is not materially, different from that which is the result of the levy of an execution; but we shall not examine this point of the case, as there is a reason entirely decisive, which equally sustains the decree.

It is not pretended here that the complainant is pursuing a mere equitable right; on the contrary, it is apparent the aid of equity is sought to protect and advance a claim, which is purely legal. The real contest is between the complainant andMorganfe Son; she claiming to subject the slaves in controversy to the payment of her debt, as the property of one of the Chiltons; and they seeking satisfaction out of the same slaves, as belonging to another person of the same name. .

It is evident therefore, if the common law has provided an adequate remedy for the complainant, under the circumstances disclosed, she is entitled to no aid from a Court of Equity.

By the ordinary course of the common law, all questions of the nature of that involved in this case, were determined in a suit against the sheriff, who levies an execution or other process, or omits to do so at his own peril. Not that this officer will not be protected by the Courts of law, when a reasonable doubt exists, or that he will be permitted to exercise his duties vexatiously or capriciously. Ordinarily the officer exercises his best judgment, and protects himself by taking a bond to indemnify himself from the consequences of an improper levy, or from the the consequences of refusing to levy. But if the parties themselves refuse to execute a proper or sufficient indemnity, the Courts, in a proper case, will enlarge the time for making the return, and thus effectually protect their officer. With us, the whole matter is in some degree regulated by statute, as on the one hand, the sheriff, in a case of doubt, is authorized to require an indemnity from the party directing the levy to be made, (Clay’s Dig. 210, § 50;) while on the other, he is prevented from doing any material injury to a third person, by making an improper levy, by the enactments which authorize the interposition of a claim suit, at the instance of him whose property is seized.

The case made by the bill assumes, that the sheriff has returned a levy on each of the processes in his hands, and under such a state of fact, it may be questionable whether either party is not entitled to sue him on his return. But to put the difficulty in its strongest possible light, we will suppose that the claim interposed by R. R. Chilton to the property, when levied on as belonging to Peletiah, was dismissed, with the intention to give Morgan & Son an undue preference, and that the sheriff and his official sureties were insolvent, so that no remedy could be had against him, or them, of an effectual character, for his refusal to levy the attachment at the suit of the complainant; still we think the concurrence of all those circumstances would have no effect to invest a Court of Equity with jurisdiction to determine the legal question, whether the property belonged to the one, or the other of the Chiltons.

Nor would the party be without a remedy, unless we arrive at the conclusion that a Court of Law is inefficient to protect its own suitors, from the misconduct of its own officers. We have already indicated, that if it was necessary to protect the officer, that the time for returning the process could be enlarged, and on the other hand, we think, if it should become necessary to protect the parties, it could be done by an inquiry with respect to the appropriation of the money, if the property was levied on and sold, under both, or perhaps either process ; or upon a proper representation and proof, that the officer was improperly or capriciously exercising his powers to the prejudice of either party, it possibly would be proper for the Court to interpose, and direct an issue between them, in the nature of a claim suit.

We suggest these considerations, not intending to determine the course to be pursued, but to show that the whole matter is within the control of the Court of Law, and that Equity has no jurisdiction.

The decree dismissingthe bill is affirmed, but without prejudice to any proceedings which the complainant may be advised to undertake, if any can be effectual, in the condition the case now is.