Lyon v. Goree , 15 Ala. 360 ( 1849 )

DARGAN, J.

If an officer, in the execution of process, obeys strictly the mandate of the writ, he discharges his duty, and it would be intolerable, that he should be considered a trespasser, or made liable to others, for obeying the mandate of the law. Courts, therefore, uniformly protect their officers so long as they act within the fine of their duty, but no further. When they assume to do what the process in their hands does not command, they act upon their own responsibility, and must be held responsible for their acts. Applying these general principles to the record before us, we can find no error.

The execution under which the plaintiff in error contends he was protected, directed him, .to demand of and take from the possession of James Harrell, a certain negro man slave named Charles, of the value of eight hundred dollars; and if said slave could not be had, then of the goods and chattels, lands and tenements of the said James Harrell, he make said sum of eight hundred dollars, the value of said slave, &c. Having this process in his hands, he demanded of Harrell, the slave, but he could not be had, because he was not in his possession. The plaintiff afterwards found the slave in the possession .of Goree, the defendant in error, and took possession of him, claiming to act under the authority of this writ.

If tve were to hold that the defendant in érror could hot maintain this action, notwithstanding he may havéa perfect title to the slave, we would hold that an officer should be protected, although he disregards the mandate of the law, and commits a trespass on others.

It is not denied by the plaintiff’s counsel, that trespass, trover, or detinue, will lie against a sheriff, if he levy an execution issued against one, on the goods of another. But it is contended, that the execution, under which the marshall acted, is in the nature of process in rem, and gave him the right, and even made it his duty, to seize the slave, without regard to the title or right of him in whose possession he was found. This is not, in our opinion, the character of the process under which the marshall acted. It was an execution issued on a judgment, in detinue, in favor of the plaintiff in the execution,- against Harrell, for the slave, or his alternate value.- This judgment could not affect the right of one who was neither a- party nor privy to it, and consequently, the execution issued upon it, could not impair the right of a stranger to the record.

The marshall not being commanded to.'take the slave from Goree^ possession, he derived no authority from the writ to do it-, andean claim no protection from it. He could therefore defend himself only, by showing a better title in himself, or in those for whom he acted.

Let the judgment be affirmed.