28 Ala. 618 | Ala. | 1856
A verdict and judgment rendered in the spring of 1851, against the claimant of a slave, on the trial of the right of property, do not constitute a bar to a title to
Where an action of detinue for a slave was commenced in August, 1852, and a declaration was filed in the usual form, a plea thereto is bad, if it shows no more than that title to the slave was in the defendant on a specified day before the commencement of the action — to-wit, on the 7th day of October, 1851. — Wittick v. Traun, 25 Ala. Rep. 317.
The principles above announced, impel us to the conclusion, that the special plea in this case is bad. It can, however, be made good by an additional averment, to the effect that the appellant has not, since the interposition of her claim under the statute mentioned in the plea, acquired any title to the slave. • •
As the plea in its present shape is bad, it was erroneous to sustain the demurrers to the several replications to it, although each of these replications was in itself bad. The demurrers to the replications should have been visited back on the plea.
If the plea should be amended, according to the intimation above given, it cannot be answered, or avoided, by any of the replications set forth in this record. Admitting the truth of every fact stated in any of them, the executions under which the sheriff sold the slave in controversy were not void, and he had authority to make the sale under them. — 3 Phil. on Ev. (ed. of 1839) 855 ; 3 Cranch, 306 ; 18 Ala. R. 668 ; 2 Tidd’s Practice, 1032. He was not bound to recognize any right asserted by the appellant under the agreement mentioned in the replications. The plaintiff in the execution had the right to control his own process; and the sheriff was bound to pursue the mandate of the process, unless otherwise instructed by the plaintiff therein, or his attorney, or by some one having an interest admitted by the plaintiff. The sheriff certainly was not bound to constitute himself a judge, to determine the questions of conflicting rights and interests which arose out of the agreement mentioned in the replications. — Oswitchee Co. v. Hope, 5 Ala. R. 629 : Gary v. Boykin, 7 Ala. R. 154; Crenshaw v. Harrison, 8 Ala. R. 342; Baylor v. Scott, 2 Porter’s Rep. 315 ; Williams v. Charles, 7 Ala. R. 202 ; Bondurant v. Buford, 1 Ala. Rep. 359; Spence v. Eldridge, 16 Ala. R. 682 ; Chenault v. Walker, 22 Ala. R. 275; White
It is, perhaps, proper to state, that our remarks as to the replications must be confined to the matters which appear in them at present. We cannot know what alterations may hereafter be made in them; and of course, we remain wholly uncommitted as to any such alterations.
For the error of the court below, above mentioned, its judgment is reversed-, and the cause remanded.
