Scarborough v. Malone , 67 Ala. 570 ( 1880 )

BRIOKELL, C. J.

— In Cordaman v. Malone, 63 Ala. 556, we held the levy of the attachment of Knox and Malone, created a prior iien on the cotton, to recover the value of which is the object of the present action; that the replevy of the cotton did not destroy or impair the lien ; that the subsequent levy of a second attachment, not in subordination to the lien of the first was wrongful; that it was wrongful in the sheriff to deliver the cotton to the plaintiffs in the second attachment; and that the second levy and delivery of the cotton to the plaintiffs in that attachment, discharged the sureties in the replevin bond from all liability.

A sheriff is liable for nonfeasance, or misfeasance, in the exercise of the powers entrusted to him by law, or in the discharge of the official duties imposed by law. Having seized the cotton under the junior attachment, taking it from the possession of the sureties in the replevin bond, thereby discharging them from liability, it was the duty of the appellant to keep it safely, so that it would be forthcoming to answer the first levy which was the prior lien. The neglect of this duty was nonfeasance, and the delivery of the cotton to the plaintiffs in the second attachment, whereby they were enabled to exercise ownership over it, sending it without the State, so that it could not be reached and subjected to the prior lien, was misfeasance rendering him liable to the plaintiffs in the first attachment for all the damage they sustained. Griffin v. Isbell, 17 Ala. 184.

■ The prior levy not having been made by appellant, but by his predecessor in office, notice to him of the levy, and that the cotton was in fact then in the custody of the law, subject to the lien of the first attachment, was necessary to fix his liability. Notice to the deputy he had appointed and authorized to make the levy, at the time he made the levy, and took possession of the cotton, was notice to the appellant, whether the deputy, as he was in duty bound, communicated it to him or not. It is a necessary and elementary principle, that notice to an agent acting in the line of his authority, while transacting the business of the principal, is notice to the principal. Whoever employs, and authorizes another to act for him, is subjected to all the consequences which would attach, if in person he had transacted the business the agent transacts. — Wharton on Agency, § 177.' The evidence of Wood, and of Nall, that they informed the deputy of the levy of the first attachment, and that it was in the possession and care of Cordaman, one of the sureties in the replevin bond, was proper and admissible, and the court below would have erred if the objection made to it had been sustained.

The ownership of chattels is not divested by the levy of an attachment. The levy, however, creates an inchoate lien dependent upon the judgment. If judgment is obtained, the lien relates back to the levy, overriding and superior to all subsequent liens and all alienations, or transfers, the owner may make. No instructions Barr may have given either the warehouseman, with whom the cotton was deposited, or the appellant, as to turning over the cotton to Coleman & Wiley, or making any other disposition of it, could relieve the appellant from the duty of holding and keeping it subject to the lien created by the levy of the first attachment. Barr’s ownership, his power of the disposition of the cotton, was subject and subordinate to that lien, and it was a wrong in whoever had notice of it, to yield obedience to his instructions, if the effect was to impair it. There was no error, consequently, in excluding the evidence offered by the appellant.

The evidence was without conflict; the charge of the court refers its credibility to the jury, and if believed, it was clearly sufficient to support the action. In such case, it is the duty of the court, on request, to charge directly on the effect of the evidence.

We find no error in the record, and the judgment is affirmed.