Bissell v. Lindsay , 9 Ala. 162 ( 1846 )

GOLDTHWAITE, J.

1. The only title disclosed by the complainants to the slaves, the levy upon which is sought to be prevented by this bill, is a mere legal one, whatever may be its intrinsic value, against the execution creditor. As such, it is not the subject of examination in a court of equity, unless by reason of some particular circumstances, which prevent a court of law from giving adequate compensation in damages. [Story’s Eq. § 709.] No such circumstances are set out in the bill, and the general question presented by it is, whether a court of equity will interfere to prevent a levy, upon the assertion that the property belongs to a stranger to the execution. We have recently held such interference to be improper, even at the suit of the cestui que trust, when there was a trustee invested with the legal title, [Marriott & Hardesty, et al. v. Givens, 8 Ala. Rep. 694;] and the same rule applies with full force to the trustee himself.

2. Some stress is laid upon the allegation that the Marshal of the United States refused to allow the complainants to interpose a claim, as provided by our local statute, but in our-judgment, this is a matter of no importance, because we cannot undertake now, to determine whether the Courts of the United States are bound to adopt our practice — that is a question which those courts will determine for themselves : conceding the Marshal was wrong, in refusing to allow the claim, it confers no jurisdiction upon our own courts, which, without it, they would not have, and the question may be considered as if our statute had no application. If the Marshal had levied upon the property of a stranger to the writ, that gives him no authority to do so, and there can be no question he would be liable to an action of trespass or trover. It is unnecessary to determine whether our courts can interfere by injunction, to restrain a party in the courts of the United States, or the officers of those courts, from making levies, because we think the complainants have a clear legal remedy, by an action of detinue, either at common law or under our local statute, which renders it equivalent to the action of replevin.

'W"e can see no reason why the Marshal, or his deputy, may not be sued in this action, as well as in trespass or trover, and the cases cited by the complainants’ oounsel show, that replevin will lie in those States where that writ is not obsolete. There is, then, no reason shown why the action of detinue was not resorted to, instead of this suit in equity, and as the question, whether the property is subject to the creditor or otherwise, can be determined in that form of action, the bill cannot be sustained.

Decree affirmed.