Morrison v. Wright

7 Port. 67 | Ala. | 1838

ORMOND, J.

— The first charge moved for by the plaintiffs in error, presents the question, whether the sheriff can be held a trespasser for executing process which has come to his hands from a court having jurisdiction of the subject matter, — the process, without his knowledge, having been superseded by the fiat of a judge.

The sheriff is bound, by law, to execute all process directed to him by a competent tribunal, and. by necessary consequence, may justify under it. It would be a strange anomaly, if the law should exact from him implicit obedience to its mandates, and withhold from him the mantle of its protection, when jm the discharge of his duty. It is true, that the ] rocess in his hands became inoperative the moment it was supers dccVby the performance of the conditions imposed by the fiat of the judge, and all proceedings under ft, afterwards, .were void. But it by no means follows, that the sheriff was a trespasser; any act of his, under, or by virtue of the process, after notice of the supersedeas, would constitute him a trespasser; but the notice, to have this effect, must bo actual, not constructive notice, — and the placing in tbs hands of his deputy, the writ, superseding the former process, will not, of itself, be such notice as the law requires.

The authorities referred to by the counsel for the plaintiffs in error, show, very conclusively, that the sheriff is bound civUUer, for the acts of his deputy, acting uuder, or by color of legal process; but this does not tend to establish the proposition, that notice to the deputy would, constructively, convert an act done by his principal, by virtue of the mandate of a writ, into a trespass. ■ ' •

This justification, afforded to the sheriff from necessity, and in consequence of the duty cast on him by law, will not avail the defendant, Wright,---who can be considered in no other light than that of a mere volunteer, and who acted at his peril. The charge of the court, therefore, “that if defendant Wright did not know that the supersedeas had been issued, he would not be a trespasser” — cannot be sustained.

The record states, that the plaintiffs offered in evidence certain declarations of the defendant, with the view of fixing on the defendant a knowledge that the superse-deas had issued; and on the cross-examination, the defendant’s counsel asked the witness to detail a part of the same conversation, to prove an offer by the defendant to the plaintiffs of a sum of money, to yield the possession to him, of the premises in controversy. This was objected to by the counsel for the plaintiffs, on the ground, that it was a proposition tending to a compromise. In any view in which the part of the testimony objected to, can be considered, it was immaterial to the issue, and if it had any influence on the minds of the jury, it was only calculated to lead them astray. If the motion to the court had been to reject it, because it was immaterial, it would have been error in the court to have refused it: but when the court were asked to reject it for a cause to which it was not obnoxious, the court had a right to conclude, that all other objections to it were waived. It is not the duty of the court to shape or remodel the propositions of counsel, but to respond to them as they are made, and either accept, or reject them.

Tlie judgment of the court below must be reversed, and the cause remanded for a trial, in conformity with this opinion.

COLLIER, C. J.

— I express no opinion upon the question, whether, if the sheriff (having no notice of the su-persedeas) was justified in the execution of the process, the defendant was excused in receiving the possession at his hands. I concur in the judgment of the court, upon the ground, that if the sheriff was advised of a compliance by Morrison, with the terms on which the certiorari was awarded, the execution of the writ of restitution was unauthorised, and could vest no interest in the defendant, so as to justify or extenuate the trespass with which he is charged. The charge of the circuit judge to the jury, is evidently given upon the supposition, that the reverse, is the law — -and in my opinion cannot he sustained.