Boykin v. Edwards , 21 Ala. 261 ( 1852 )

DARGAN, C. J.

— It is contended, that tbe court erred in overruling tbe demurrer to the plea of justification, for tbe reason, that tbe defendant, being one of tbe plaintiffs in tbe attachment, was incompetent to execute it, and the levy was therefore void.

It may be admitted that a party is incompetent to execute process in bis own favor, but still we think tbe demurrer was correctly overruled, for two reasons: first, there is no allegation in tbe pleadings showing that Sterton B. Edwards, tbe plaintiff in tbe attachment, is tbe same person who was deputized by tbe justice to execute tbe writ, and who made tbe levy. True, tbe name is tbe same, but I do not see bow tbe law could intend that tbe individual who executed tbe writ was the same person in whose favor it issued, merely because tbe name is the same. I think it should have been made to appear that be was, by a direct allegation. But independent of this, tbe plea directly denies that tbe defendant took tbe horse, and avers that it was levied on by tbe constable, James Whitted. This allegation is not contradicted, but directly admitted by tbe demurrer, and tbe writ being valid on. its face, as set forth in tbe plea, we tbink it clear that tbe demurrer was correctly overruled.

It is, however, insisted, that tbe question is presented by tbe bill of exceptions, as tbe evidence shows that tbe defendant was one of the plaintiffs in tbe attachment, and also, that be did in fact make tbe levy, and upon this evidence tbe court instructed tbe jury that tbe levy was not void. But here tbe plaintiff is met with tbe difficulty, that he did not, by his replication, traverse any of tbe facts set forth in the plea: but, on tbe contrary, replied that be had a family, and but one horse, which Avas protected from levy and sale. This replication does not put in issue tbe legal capacity of the defendant to execute tbe process, but raises the question only whether the horse was liable to tbe attachment. The validity of tbe writ, and the capacity of the party or person who executed it, are admitted, and tbe only issue is, whether tbe horse was subject to tbe levy. Consequently, if tbe court erred in charging the jury that tbe levy was valid, though made by the defendant, it was error without injury, and therefore will not reverse tbe judgment, for the court only charged what in effect was admitted by tbe plaintiff’s replication.

It appeared that tbe plaintiff resided in Mississippi, just beyond tbe line that separates this State from that, and had tbe larger part of his farm in Alabama; tbe levy was made in this State, and the question is therefore raised, whether tbe plaintiff is entitled to the protection of the act of 1838, which exempts one horse from levy and sale, for the use of every family, besides several other articles of property. See the act, Clay’s Digest 210. In the case of Allen v. Manasse, et al., 4 Ala. 554, this act received a construction from which we cannot depart. It was there held, that -the act was only applicable when the party invoking its protection had a family, and resided in this State, and if he did not have his residence within the State, he was not within its protection. Ajtply-ing this rule of construction, it is clear that the plaintiff is not entitled to the benefit of the act, for he resided beyond the limits of Alabama. We also think, that the statute of Mississippi, which is almost identical with our own, cannot protect him. For although the horse was exempt from levy and sale in Mississippi, yet the Mississippi act is local, and can only protect the property exempted by it from execution, so long as the property remains within the limits of that State; but when it passes from beyond her jurisdiction, it then loses the protection of her statute, and the residence of the owner being in Mississippi, he cannot acquire the benefit or protection of the act of Alabama.

There is no error in the record prejudicial to the plaintiff in error, and the judgment must be affirmed.