Andress v. Broughton , 21 Ala. 200 ( 1852 )

PHELAN, J.

— This was an action of trover, brought by Broughton against Andress to recover the value of a slave named July.

There was evidence “ tending to prove” that Andress, who was sheriff of Monroe from 1848 to 1846, in August of tbe latter year, and a few days after bis term of office bad expired, received an execution in favor of tbe Bank of tbe State of Alabama against tbe plaintiff, and levied it on tbe slave in question, and finally sold bim under it in December, 1846 ; that while Andress bad this execution in band, be was requested by plaintiff to postpone tbe sale twice, that he might obtain evidence from Tuskaloosa to show that tbe debt was paid; that plaintiff was present at tbe sale; that after tbe sale, and in December, 1846, plaintiff requested Andress not to pay over the money received from tbe sale of said slave to tbe Bank; and that Andress bad never paid over tbe money to tbe Bank or plaintiff, but still bolds it.

Tbe court was requested by tbe counsel for tbe defendant to give several charges, wbicb were refused, and other charges, different from those requested, were given by tbe court; but there was no exception taken to them.

Tbe bill of exceptions then contains tbe following as its closing portion: “ And tbe defendant further asked the court to charge tbe jury, that if plaintiff requested defendant not to pay over tbe money received on sale of July, tbe jury might infer that tbe plaintiff looked to tbe money alone to be bis, dependent upon tbe right of tbe Bank'; which charge tbe court refused, but charged tbe jury, that if Andress received tbe execution after bis term of office expired, be bad no more right to act under it than any other private individual; and if be bad acted under it, and sold tbe property of plaintiff, be was liable in this action, and tbe plaintiff bad not lost bis right to resort to it by what was shown by tbe proof to have passed between them. To wbicb defendant excepted; whereupon, this bill of exceptions is sealed,” &c.

We can only notice tbe charge wbicb was refused, and that wbicb was given, contained in tbe paragraph immediately preceding tbe exception. Tbe words, “to wbicb defendant excepted,” bydbe ordinary rules of .construction, can only apply properly to tbe matter of tbe independent paragraph in immediate connection with them; — their immediate antecedent. To say that tbe pronoun “wbicb” shall have four or five separate charges and refusals to charge, spread over more than a page, as its antecedent, would not be correct according to any rule of criticism. But tbe rule of construction applied to bills of exceptions as against tbe party excepting, is a strict rule; it is, that they shall be construed most strongly against tbe party excepting. 4 Por., 252 ; 11 Ala.; 15 Ala., 18 ; 6 Ala., 801. Under this rule, we cannot bold that any exception is taken, except to tbe refusal to charge and tbe charge given contained in tbe paragraph immediately preceding tbe exception.

Tbe rule of law stated by the court, that if Andress received tbe Bank execution after tbe expiration of bis term of office, it conferred no authority whatever on him to levy upon and sell tbe property of plaintiff, is correct. After tbe expiration of bis term of office, be became, as to new writs, a mere private individual, and final process coming to bis bands, directed to tbe sheriff, conferred no authority on him for its execution. He bad no more right to sell tbe plaintiff’s slave after that time, by virtue of an execution then first delivered to him, than if no such process bad existed. Cutbbert v. Tardy, decided at this term. So far as tbe rights of tbe plaintiff were concerned, be was a mere trespasser. Peck v. Holcombe, 3 Por., 329.

In an action between third persons, tbe acts of an officer de facto may often have validity, because be acts under color of authority. 7 Ala., 535. But in an action against tbe officer himself, tbe lawfulness of his action must depend upon bis actual right to exercise tbe power which is claimed. He must be an officer de jure, and armed with a lawful precept. 7 Ala., 578. If be sells under process before or after tbe time prescribed by law, (4 John., 450 ;) if be levies process out of bis county, although be may sell it within, (3 Dana, 489 ;) be is liable to trespass at the suit of tbe injured party. "When sued in trover or trespass, an officer, to justffy, must show a process valid in law, and that be executed it pursuant to law. It is true, if be levies an execution, not valid, or not at a proper time, upon tbe goods of tbe defendant, be may show in mitigation of damages that tbe money has been paid in satisfaction of judgment against tbe plaintiff, but in mitigation only. 6 Mass., 20; 4 Harrington, 303.

It nowhere appears from tbe bill of exceptions, that tbe plaintiff was aware of this tort, at tbe time be requested tbe defendant to postpone tbe sale and not to pay over tbe money. Even then, if these things could conduce to show that he had waived the tort, had it been also shown that he knew defendant had no authority to sell, it will not do to hold, that ho waived a tort of which he was in fact ignorant at the time. It must always appear that a man has knowledge of a thing, before he can be construed to act in reference to it. So here, as it is nowhere shown that plaintiff knew that the process under which defendant sold his slave gave him no lawful authority to make that sale, his being present at the sale, his asking a postponement of it, or that defendant would delay paying over the money to the Bank, cannot show, nor conduce to show, a waiver of the tort on the part of the plaintiff.

We find no error in the charge qf the court, and the judgment is affirmed.